Radcalc logiciel de LifeLine Software, Inc.
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End user license agreement for RadCalc Software
Subscription-based software license agreement for RadCalc Software
Extended Maintenance and support services sgreement for RadCalc Software
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End user license agreement for RadCalc Software (this “Agreement”)
Status October 2022
RadCalc Software (the “Software”) has been developed and published by LifeLine Software Inc., a Texas corporation (“LSI”). Licenses to use the Software can be granted by LSI directly and sublicenses to use the Software can be granted by distributors who have been authorized by LSI to do so, and/ or by their authorized sub-distributors, as well (each, a “Vendor” and collectively, “Vendors”). Regardless of whether a license is granted by LSI or by a Vendor, and except as otherwise agreed by LSI in writing, all licenses and sublicenses (“Licenses”, whether one or more) are subject to the terms, conditions, and restrictions in this Agreement and are legally enforceable against all persons and entities to whom Licenses are granted (each, a “Licensee” and collectively, “Licensees”). LSI will have the sole right to enforce Licenses granted directly to Licensees by LSI, and both Vendor and LSI, as a third-party beneficiary, will have the right to enforce Licenses granted to Licensees by Vendors; provided, however, that Vendors will have the sole right to pursue the recovery of software license fees and other amounts payable by Licensees to LSI’s Vendors. For purposes of this Agreement, the term “Licensor” sometimes refers to LSI in those instances where LSI is also the Vendor identified in the Purchase Order (defined below), and sometimes refers to the Vendor in those instances where LSI is not the Vendor identified in the Purchase Order. Licenses contemplated by this Agreement are effective as of the date Licensee first accepts delivery of, installs, activates, or otherwise uses or accesses the Software (the “Effective Date”). Licensee’s conduct in accepting, installing, activating, or otherwise using the Software is conclusive evidence of its acceptance of these terms and conditions. If Licensee rejects or does not otherwise wish to be bound by these terms and conditions, then it will have no right to install, activate or use the Software and must refrain from doing so.
1. License
Subject to the terms and conditions set forth in this Agreement, and in the applicable purchase order, ordering document, or other similar agreement between Licensee and LSI, or Licensee and a third-party Vendor, if applicable (each, a “Purchase Order”), and Licensee’s continuing compliance with its obligations under this Agreement and Purchase Order, Licensor hereby grants to Licensee, and Licensee accepts from Licensor, the nonexclusive, nontransferable right and Licenses to use the Software and any accompanying documentation provided by LSI (and/ or Vendor, if applicable) (the “Documentation”) and any updates, upgrades, and new releases thereof which Licensor may provide to Licensee in fulfillment of its maintenance and support obligations hereunder, only at the specific locations listed in Purchase Order, and such alternate or additional locations as LSI (and Vendor, if applicable) may agree in writing.
2. Installation, Activation and Commissioning of the Software
(a) Assistance with Remote Installation. Subject to the limitations set forth in Section 10 below, and at a time mutually agreeable to the parties within sixty (60) days after Licensor’s delivery of the Software to Licensee, LSI (or Vendor, if applicable) shall, at no additional charge, remotely assist Licensee with the installation and configuration of the Software, and any updates, upgrades and new versions to which Licensee may be entitled hereunder during the Warranty Period (defined below); provided that the computer equipment of Licensee satisfies LSI's minimum requirements for the Software as specified in the Documentation.
(b) Any installation, activation, commissioning and acceptance of the Software shall be performed by Licensee and its duly trained and qualified personnel, in accordance with LSI’s instructions and documented system requirements for installation of the Software, and subject to LSI’s activation requirements.
3. License Fee
In consideration of Licenses granted by Licensor hereunder, Licensee shall and does hereby agree to pay Licensor the applicable license fees specified by Licensor on the terms specified in Purchase Order, (collectively, the “License Fees”, whether one or more), together with any applicable sales or use taxes, VAR taxes, or other taxes of any kind and on the terms and conditions set forth therein. License Fees payable by Licensees for Licenses granted by Vendors will be determined by Vendors as opposed to LSI.
4. Term
The term of this Agreement and Licenses granted hereunder will continue in perpetuity unless sooner terminated by a party in accordance with Section 12 below.
5. Ownership
Licensee acknowledges and agrees that:
(a) The Software and the Documentation are protected by copyright laws and international copyright treaties, and other intellectual property laws and treaties;
(b) Title to the Software and the Documentation, and to any and all copies, modifications, derivative works, and enhancements thereof, shall be and remain with LSI; and
(c) Except as to the rights and Licenses granted to Licensee hereunder, LSI reserves all other rights to the Software and the Documentation.
6. Data
All data which is supplied by Licensee and stored in and/ or manipulated by the Software shall be and remain the sole and exclusive property of Licensee. Neither LSI nor any of its Vendors will use any such data for any purpose whatsoever except in the performance of their duties and obligations to Licensee. In no event, however, should the foregoing or anything in this Agreement ever be construed as granting LSI or its Vendors the right to use any personally identifiable information or other protected health information of any kind, whether belonging to Licensee or its patients.
7. Restrictions
(a) Copies. Except as otherwise expressly provided herein or under applicable law, neither the Software nor the Documentation may be copied, duplicated or distributed without LSI's prior written consent; provided, however, that Licensee may make one (1) copy of the Software and the Documentation to be stored off-site for backup, disaster recovery, and archival purposes.
(b) Authorized Users; Indemnity.
(i) Licensee must not: (1) rent, lease, sub-license, transfer, convey or otherwise permit any third party to use the Software, (2) use the Software in the operation of a service bureau, or (3) permit or allow the Software to be used for the benefit of any third party other than patients who are being treated at locations specified in Purchase Order.
(ii) LICENSEE COVENANTS AND AGREES THAT IT WILL NOT PERMIT OR ALLOW ANY PERSON TO USE THE SOFTWARE, WHO IS NOT DULY QUALIFIED AND PROPERLY TRAINED TO DO SO.
(iii) Licensee shall and does hereby agree to defend LSI, its Vendors and their respective owners, officers and representatives (collectively, the “Indemnified Parties”), from and against any and all third party actions, claims, demands, lawsuits, or proceedings of any kind (collectively, “Claims”) arising from or relating to Licensee’s alleged or actual breach of any of covenants, restrictions, duties or obligations set forth herein, including without limitation, those set forth in Section 7.b.i-.ii above. Licensee further agrees to indemnify and hold the Indemnified Parties harmless from and against any and all awards, costs, damages, judgments, liabilities, and harm of any kind, including without limitation, reasonable attorneys’ fees, suffered or incurred in connection with any such Claims.
(c) No Reverse Engineering; Circumvention of License Management and Control System. Licensee covenants and agrees that it will not, directly or indirectly:
(i) copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process relating to the Software in order to ascertain, derive, or appropriate for any reason or purpose, the source code or source listings for the Software or any trade secret or other proprietary information or processes embodied by or otherwise contained in the Software; or
(ii) make any alterations, modifications or enhancements to the Software and/ or to Licensee’s computer equipment or systems, or the set-up or configuration thereof which have the effect of circumventing or otherwise hindering LSI’s License Management and Control System or related processes in any way that allows or would actually allow Licensee to use the Software outside of the term of the Licenses.
(d) No Assignment. Neither this Agreement, nor any right, license or obligation on part of Licensee hereunder, may be transferred, assigned, conveyed, delegated, sublicensed, moved, relocated or otherwise sold to any third party, in whole or in part, without the prior written consent of LSI in each instance, and any attempt by Licensee to do so will not be binding upon LSI. For purposes of this Agreement, any purported transfer or assignment of Licenses granted hereunder by operation of law or otherwise resulting from a merger, consolidation, or other reorganization of Licensee with or into a third party will be regarded as a prohibited assignment unless otherwise approved or ratified by LSI (and Vendor, if applicable) in writing.
8. Limited Warranty
(a) Limited Warranty; Warranty Period. LSI represents and warrants that
(i) LSI will use its best, commercially reasonable efforts to ensure that the Software operates in conformance with the published specifications for a period of twelve (12) months after the Effective Date (the “Warranty Period”); and
(ii) any services will be performed in a professional and workmanlike manner, and warranted for a period of ninety (90) days from the date upon which such services were performed. The foregoing warranties will be null and void, however, if Licensee makes or attempts to make any modifications or enhancements to the Software or uses it in violation of any of the restrictions set forth herein.
(b) Submission of Claims; Remedies. Warranty-related claims must be submitted in writing to LSI (and Vendor, if applicable) during the Warranty Period and be accompanied by a detailed description of the alleged defect or nonconformity. If the Software fails to operate in conformance with its published specifications at any time during the Warranty Period, then upon Licensee’s timely submission of a written warranty claim as required above, LSI shall use its best, commercially reasonable efforts to correct such defect or nonconformity within thirty (30) days after its receipt of such claim. If LSI fails to remedy the nonconformity within such period of time, Licensee may terminate this Agreement upon written notice to LSI (and Vendor, if applicable) at any time within ten (10) days thereafter and receive a pro-rata refund from Licensor of all pre-paid License Fees paid by Licensee with respect to the nonconforming Software, based on a useful life of thirty-six (36) months from the Effective Date, as its sole and exclusive remedy.
(c) Waiver of Other Warranties. Licensee hereby acknowledges and agrees that neither LSI nor Vendor (if applicable) has made any representations or warranties to Licensee relating to the Software or the Documentation, or given any other assurances whatsoever, except those contained in this Agreement. EXCEPT AS TO THE WARRANTIES SET FORTH IN THIS SECTION ABOVE, LICENSEE ACCEPTS THE SOFTWARE AND THE DOCUMENTATION “AS IS” AND WITHOUT WARRANTY, EXPRESS OR IMPLIED. LICENSEE HEREBY EXPRESSLY WAIVES ANY AND ALL WARRANTIES, REPRESENTATIONS AND ASSURANCES OF ANY KIND, EXPRESS OR IMPLIED, WHICH ARE NOT EXPRESSLY SET FORTH HEREIN IN WRITING, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
9. Noninfringement
Licensor represents and warrants to Licensee that it has the right to grant Licensee the rights and Licenses contemplated herein, free and clear of all liens, claims, and encumbrances not specified herein, and that Licensee’s use of the Software in accordance with this Agreement will not infringe upon or misappropriate any U.S. copyright, trademark, or patent, or the trade secrets of any third party which are protected under U.S. laws, or international treaty or convention to which the U.S. is a party or otherwise bound. Upon Licensee’s written notice to LSI (and Vendor, if applicable) of any claim against Licensee to the contrary, Licensor shall
(i) indemnify and hold Licensee, its officers, directors, employees, agents, and insurers harmless from and against all liabilities, damages, costs and expenses, including reasonable attorneys’ fees arising out of or related to any such claim,
(ii) defend through litigation or obtain through negotiation the right of Licensee to continue using the Software,
(iii) modify the Software so as to make it non-infringing, while still providing the same or substantially similar functionality, or
(iv) replace the Software with functionally equivalent software.
If LSI determines that none of the foregoing alternatives is technically or economically feasible, LSI (and Vendor, if applicable) reserves the right to terminate this Agreement and in such event, Licensor shall provide Licensee with a pro rata refund of all pre-paid fees actually paid by Licensee for the Software in question, based on a useful life of thirty-six (36) months from the Effective Date, without further liability.
10. Limitation of Liability
(a) MAXIMUM LIABILITY. LICENSEE AGREES THAT THE MAXIMUM AGGREGATE LIABILITY OF LSI (AND VENDOR, IF APPLICABLE) UNDER THIS AGREEMENT IS AND SHALL BE LIMITED TO THE AMOUNT OF THE LICENSE FEES ACTUALLY PAID BY LICENSEE FOR THE SOFTWARE OR OTHER PRODUCT OR SERVICE WHICH IS THE SUBJECT OF A CLAIM.
(b) CONSEQUENTIAL DAMAGES. IN NO EVENT WILL LSI (AND/ OR VENDOR, IF APPLICABLE) BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES (INCLUDING LOST SAVINGS, LOST PROFITS OR BUSINESS INTERRUPTION, OR OTHER SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES) ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBLITY OF SUCH DAMAGES.
11. Confidentiality
(a) The Software and all programs developed hereunder and all copies thereof are proprietary to LSI and title thereto remains in LSI. All applicable rights to patents, copyrights, trademarks and trade secrets in the Software or any modifications made at Licensee’s request are and shall remain in LSI. Licensee shall not sell, transfer, publish, disclose, display or otherwise make available the Software, the Documentation or copies thereof to any third parties, or otherwise permit any of its employees or others who have access to the Software and the Documentation to do so. Licensee shall keep the terms and conditions of this Agreement, the Software, the Documentation and all such programs and copies thereof confidential and cause its employees and others who have access to the Software and the Documentation to do so, as well. Licensee’s obligations hereunder shall not apply to information that
(i) becomes generally available to the public other than as a result of a disclosure made by Licensee;
(ii) was available to Licensee on a non-confidential basis prior to the disclosure to Licensee by LSI (and/ or Vendor, if applicable); or
(iii) becomes available to Licensee on a non-confidential basis from a source other than LSI (and/ or Vendor, if applicable) provided that such source is not prohibited from transmitting the information to Licensee by any contractual, legal or fiduciary obligation.
(b) Licensee further acknowledges and agrees that, in the event of Licensee’s breach of its obligations under this provision, LSI will be entitled to temporary and permanent injunctive relief, without the necessity of bond, enjoining Licensee from committing any further breach, in addition to any other remedies to which LSI may be entitled at law or in equity.
12. Termination
(a) By Licensee. Licensee may terminate this Agreement and License(s) granted herein at any time upon written notice to LSI (and Vendor, if applicable) with or without cause.
(i) Without Cause. If Licensee terminates without cause, then it shall forfeit any Licensee Fees.
(ii) For Breach. If Licensee gives notice of its intent to terminate for cause due to the occurrence of a breach on the part of LSI (or Vendor, if applicable) unless such breach is cured within thirty (30) days after the breaching party’s receipt of such written notice, and such breach is not thereafter cured prior to the expiration of such thirty (30) day period of time, then Licensee shall be entitled to a pro-rata refund from Licensor of any prepaid License Fees paid by Licensee for the Software, based on a useful life of thirty-six (36) months from the Effective Date.
(b) By LSI (and/ or Vendor, if applicable) for Cause. LSI (and/ or Vendor, if applicable) may terminate this Agreement and License(s) granted herein at any time and without further notice if Licensee:
(i) Breaches any of its obligations under Section 7; without further notice or opportunity to cure.
(ii) Breaches any of its material obligations under this Agreement and fails to cure such breach within seven (7) days following its receipt of written notice thereof.
(iii) Becomes insolvent, makes an assignment for the benefit of its creditors, or otherwise becomes the subject of any voluntary or involuntary bankruptcy proceeding under Chapter 7, Chapter 11 or Chapter 13 of the United States Bankruptcy Code, or under any similar bankruptcy or insolvency proceeding in the jurisdiction in which Licensee is located, if other than the United States of America, which is not dismissed within thirty (30) days following the date filed.
(c) Cessation of Use. Upon the expiration or earlier termination of this Agreement or any Licenses granted hereunder for any reason, Licensee shall immediately cease all use of the Software and the Documentation, except for the limited functionality contemplated in Section 1.b.
(d) Survival. Under no circumstances will the termination of this Agreement or any Licenses contemplated herein relieve either party of any of its confidentiality obligations hereunder, or any other obligations which might reasonably be presumed to survive the termination of this Agreement. The remedy of termination shall be in addition to, and not in lieu of, any other remedies to which either party may be entitled, at law or in equity.
13. Maintenance and Support
(a) Maintenance and Support During Warranty Period. LSI (or Vendor, if applicable) shall provide remote technical support for the Software via telephone and e-mail during its regular business hours during the Warranty Period. If applicable, Vendor may forward telephone calls or email requests for technical support which are in English-language to LSI for its direct response during LSI’s regular business hours. Any updates, upgrades and new releases to the Software released by LSI during the Warranty Period will be provided at no 3 / 3 additional charge. LSI represents and warrants that any updates, upgrades and new releases provided during the Warranty Period will operate in accordance with their published specifications during the remainder of the original Warranty Period.
(b) Extended Maintenance and Support Services. LSI (and Vendor, if applicable) will continue to provide maintenance and support services upon Licensee’s request after the expiration of the initial Warranty Period, subject to Licensee’s acceptance, execution, delivery and/ or payment of a Quotation, Purchase Order or other written agreement in such form as may be acceptable to or prescribed by LSI, and on the terms and conditions set forth therein. Under no circumstances, however, will either LSI (or Vendor, if applicable) be obligated to maintain or support any Software for more than twelve (12) months following the date of LSI’s initial release of any new version or release of the Software.
14. General
(a) Entire Agreement. Licensee acknowledges that it has read this Agreement and understands and agrees to be bound by its terms and conditions. Licensee further acknowledges and agrees that this Agreement evidences the complete and exclusive agreement between the parties relating to the subject matter set forth herein, and supersedes any prior agreements of any kind between the parties, whether express or implied, and oral and written.
(b) Force Majeure. Any delay or failure of either party to perform its obligations under this Agreement in a timely manner will be excused for the duration of the underlying Force Majeure Event (defined below) to the extent
(i) caused by an event or occurrence beyond such party’s reasonable control,
(ii) without such party’s fault or negligence and
(iii) such event or occurrence could not have been reasonably foreseen by such party, or was otherwise unavoidable. Examples of such events or occurrences include, without limitation, tornado, hurricane, earthquake, volcano, fire, flood, tsunami, governmental embargo, civil unrest, riot, war, act of terrorism, public health emergency, pestilence, or pandemic and any related quarantines and/ or other restrictions on travel or movement of persons or goods resulting therefrom, explosion or other natural or man-made disaster of any kind not caused by the party whose performance was delayed or prevented (each, a “Force Majeure Event”). In no event, however, will Licensee’s inability to pay for any Licenses hereunder or to otherwise perform any of its pecuniary obligations hereunder, be regarded as constituting a Force Majeure Event, or as otherwise relieving Licensee of any such obligations, in whole or in part.
(c) Non-Waiver. The waiver or failure of either party to this Agreement to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
(d) Modification or Amendment. No modification or amendment to or of this Agreement is effective unless made and entered into in writing and signed by each party, and approved by LSI in writing.
(e) Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties and their respective permitted successors and permitted assigns.
(f) Export Regulation. Licensee acknowledges that the Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, reexport, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
(g) US Government Rights. The Documentation and the Software are each a "commercial product" as defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of or contractor for the US Government or any contractor therefor, then Licensee will only receive those rights with respect to the Software and the Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
(h) Governing Law and Venue. The parties’ rights and obligations under this Agreement will be governed by and construed in accordance with the laws of the State of Texas and the applicable laws of the United States of America, without regard to any conflicts of laws provisions, to the extent they would require or permit the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Jurisdiction and venue in any action arising hereunder will lie exclusively in the Federal District Court for the Northern District of Texas, located in Dallas, Texas; provided, that if such court does not have subject matter jurisdiction, then jurisdiction and venue will lie in exclusively in the courts of the State of Texas located in Dallas County, Texas.
(i) Waiver of Jury Trial. Each party acknowledges and agrees that any controversy that may arise under this Agreement will likely involve complicated and difficult issues. Each Party therefore irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
Tyler, October 2022
LifeLine Software, Inc. (Developer and Publisher of RadCalc Software)
102 N College Ave Ste 1014
75702-7287 Tyler, TX
United States of America
and its authorized distributors and sub-distributors
Subscription-based license agreement for RadCalc Software (this “Agreement”)
Status October 2022
RadCalc Software (the “Software”) has been developed and published by LifeLine Software Inc., a Texas corporation (“LSI”). Licenses to use the Software can be granted by LSI directly and sublicenses to use the Software can be granted by distributors who have been authorized by LSI to do so, and/ or by their authorized sub-distributors, as well (each, a “Vendor” and collectively, “Vendors”). Regardless of whether a license is granted by LSI or by a Vendor and except as otherwise agreed by LSI in writing, all licenses and sublicenses (“Licenses,” whether one or more) are subject to the terms, conditions, and restrictions in this Agreement and are legally enforceable against all persons and entities to whom Licenses are granted (each, a “Licensee” and collectively, “Licensees”). LSI will have the sole right to enforce Licenses granted directly to Licensees by LSI, and both Vendor and LSI, as a third-party beneficiary, will have the right to enforce Licenses granted to Licensees by Vendors; provided, however, that Vendors will have the sole right to pursue the recovery of software license fees and other amounts payable by Licensees to Vendors. For purposes of this Agreement, the term “Licensor” sometimes refers to LSI in those instances where LSI is also the Vendor identified in the Purchase Order (defined below), and sometimes refers to the Vendor in those instances where LSI is not the Vendor identified in the Purchase Order.
Licenses contemplated by this Agreement are effective as of the beginning date specified in the Purchase Order (defined below) or the date of Licensor’s acceptance thereof, whichever is later (the “Effective Date”). Licensee’s conduct in accepting, installing, activating, or otherwise using the Software is conclusive evidence of its acceptance of these terms and conditions. If Licensee rejects or does not otherwise wish to be bound by the following terms and conditions, then it will have no right to install, activate or use the Software and must refrain from doing so.
1. Subscription-Based License
(a) Subscription Period. Subject to the terms and conditions set forth in this Agreement, and in the applicable purchase order, ordering document or other similar agreement between Licensee and LSI, or Licensee and a third-party Vendor, if applicable (each, a “Purchase Order”), and Licensee’s continuing compliance with its obligations under this Agreement and Purchase Order, Licensor hereby grants to Licensee, and Licensee accepts from Licensor, the nonexclusive, nontransferable right and Licenses to use the Software and any accompanying documentation provided by LSI (and/ or Vendor, if applicable) (the “Documentation”) and any updates, upgrades, and new releases thereof, during the period commencing on the Effective Date and continuing throughout the term of the subscription period (the “Subscription Period”) specified in Purchase Order, and at the specific locations designated therein or such alternate or additional locations as LSI (and Vendor, if applicable) may agree in writing.
(b) Expiration of Subscription Period; Limited Functionality. Licensee acknowledges that upon the expiration or earlier termination of the Subscription Period, or in the event of a failed activation or re-activation of the Software as stipulated in Section 2, the Software will nonetheless continue to operate with limited functionality designed to ensure that Licensee will have the continuing ability to access Licensee’s data even after the Subscription Period has ended.
(c) Renewal of Subscription Period. Upon Licensor’s offer and Licensee’s acceptance to renew the Subscription Period, Licensee may continue using the Software until the expiration or earlier termination thereof subject to such terms and conditions as LSI may specify and as Licensee may agree from time to time in connection with any such renewal, and notwithstanding anything to the contrary in any Purchase Order submitted by Licensee. The terms and conditions of this Agreement will govern and prevail over any conflicting terms in any Purchase Order.
2. Installation and Activation of the Software
(a) Subscription Management and Control System; Activation. Following the installation of the Software, and each time the Software is used, LSI’s proprietary Subscription Management and Control System (herein so-called)
(i) confirms that each installation of the Software is associated with a registration key assigned to Licensee, and
(ii) activates the Software, subject to the successful completion of the foregoing confirmation process. If the Software is not activated, it will only provide limited functionality. Licenses granted herein are therefore subject to the successful installation and activation of the Software, and LSI’s Subscription Management and Control System.
(b) Re-activation; Failure. At the end of each Subscription Period and such other times as LSI (and/ or Vendor, if applicable) may reasonably require, Licensee may be required to re-activate the Software using a new or updated registration key. If the activation process determines or otherwise reveals that the particular installation of the Software in question is unauthorized, unlicensed or outside the agreed Subscription Period associated with Licenses previously granted to Licensee, then Licensee will be notified that the activation has failed. In that event, Licenses granted hereunder will be subject to Licensee’s successful activation or re-activation of the Software, and LSI shall provide Licensee with such cooperation and assistance as Licensee may reasonably request in its efforts to determine why the activation or re-activation process failed, and to re-activate the Software subject to Licensee’s payment of such additional license fees as may be required in connection therewith.
(c) Assistance with Remote Installation. Subject to the limitations set forth in Section 10 below, and at a time mutually agreeable to the parties within sixty (60) days after Licensor’s initial delivery of the Software to Licensee, LSI (or Vendor, if applicable) shall, at no additional charge, remotely assist Licensee with the installation and configuration of the Software, and any updates, upgrades and new versions to which Licensee may be entitled hereunder during the Subscription Period; provided that computer equipment of Licensee satisfies LSI’s minimum requirements for the Software as specified in the Documentation.
(d) Any installation, activation, commissioning and acceptance of the Software shall be performed by Licensee and its duly trained and qualified personnel, in accordance with LSI’s instructions and documented system requirements for installation of the Software, and subject to LSI’s activation requirements.
3. License Fees
In consideration of Licenses granted by Licensor hereunder, Licensee shall and does hereby agree to pay Licensor the applicable subscription-based license fees specified by Licensor in Purchase Order (collectively, the “License Fees”, whether one or more), together with any applicable sales or use taxes, VAR taxes, or other taxes of any kind and on the terms and conditions set forth therein. License Fees payable by Licensees for Licenses granted by Vendors will be determined by Vendors as opposed to LSI. LICENSEE HEREBY ACKNOWLEDGES AND AGREES THAT ANY SOFTWARE LICENSE FEES WHICH IT MAY HAVE PREVIOUSLY PAID UNDER ANY PREVIOUS END-USER LICENSE AGREEMENTS FOR THE SOFTWARE WERE FOR THE PARTICULAR VERSION(S) OF THE SOFTWARE LICENSED THEREUNDER INCLUDING ANY UPGRADES, UPDATES AND/ OR NEW RELEASES (COLLECTIVELY, “PRIOR VERSIONS”) WHICH WERE PREVIOUSLY PROVIDED OR ARE TO BE PROVIDED THEREUNDER OR UNDER ANY EXISTING “TERMS AND CONDITIONS FOR EXTENDED MAINTENANCE AND SUPPORT SERVICES” WHICH MAY CURRENTLY BE IN EFFECT FOR THE SOFTWARE. LICENSEE’S PAYMENT OF SOFTWARE LICENSE FEES FOR ANY SUCH PRIOR VERSIONS DOES NOT AFFORD LICENSEE ANY RIGHT OR LICENSE TO USE THE SOFTWARE UNDER THIS AGREEMENT. NEITHER LSI NOR VENDOR (IF APPLICABLE) HAS ANY DUTY OR OBLIGATION TO CONTINUE MAINTAINING OR SUPPORTING ANY PRIOR VERSIONS OR RELEASES OF THE SOFTWARE BEYOND THE REMAINING TERM OF ANY EXISTING MAINTENANCE AND SUPPORT AGREEMENT.
4. Limited Term of License
Licensee hereby acknowledges and agrees that the term of Licenses granted hereunder will continue only for the duration of the Subscription Period specified in the applicable Purchase Order unless sooner terminated in accordance with Section 12.
5. Ownership
Licensee acknowledges and agrees that:
(a) The Software and the Documentation are protected by copyright laws and international copyright treaties, and other intellectual property laws and treaties;
(b) Title to and ownership of the Software and the Documentation, and to all copies, modifications, derivative works and enhancements thereof, in whole or in part, shall be and remain with LSI; and
(c) Except as to the rights and licenses granted to Licensee hereunder, LSI reserves all other rights to the Software and the Documentation.
6. Data
All data which is supplied by Licensee and stored in and/ or manipulated by the Software, shall be and remain the sole and exclusive property of Licensee. Neither LSI nor any of its Vendors will use any such data for any purpose whatsoever except in the performance of their duties and obligations to Licensee. In no event, however, should the foregoing or anything in this Agreement ever be construed as granting LSI or its Vendors the right to use any personally identifiable information or other protected health information of any kind, whether belonging to Licensee or its patients.
7. Restrictions
(a) Copies. Except as otherwise expressly provided herein or under applicable law, neither the Software nor the Documentation may be copied, duplicated or distributed without LSI's prior written consent; provided, however, that Licensee may make one (1) copy of the Software and the Documentation to be stored off-site for backup, disaster recovery and archival purposes.
(b) Authorized Users; Indemnity.
(i) Licensee must not: (1) rent, lease, sub-license, transfer, convey or otherwise permit any third party to use the Software, (2) use the Software in the operation of a service bureau, or (3) permit or allow the Software to be used for the benefit of any third party other than patients who are being treated at the location(s) specified in Purchase Order.
(ii) LICENSEE COVENANTS AND AGREES THAT IT WILL NOT PERMIT OR ALLOW ANY PERSON TO USE THE SOFTWARE WHO IS NOT DULY QUALIFIED AND PROPERLY TRAINED TO DO SO.
(iii) Licensee shall and does hereby agree to defend LSI, its Vendors and their respective owners, officers and representatives (collectively, the Indemnified Parties”) from and against any and all third party actions, claims, demands, lawsuits, or proceedings of any kind (collectively, “Claims”) arising from or relating to Licensee’s alleged or actual breach of any covenants, restrictions, duties or obligations set forth herein, including without limitation, those set forth in Section 7.b i-ii above. Licensee further agrees to indemnify and hold the Indemnified Parties harmless from and against any and all awards, costs, damages, judgments, liabilities, and harm of any kind, including without limitation, reasonable attorneys’ fees, suffered or incurred in connection with any such Claims.
(c) No Reverse Engineering; Circumvention of Subscription Management and Control System. Licensee covenants and agrees that it will not, directly or indirectly,
(i) copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process relating to the Software in order to ascertain, derive, or appropriate for any reason or purpose, the source code or source listings for the Software or any trade secret or other proprietary information or processes embodied by or otherwise contained in the Software; or
(ii) make any alterations, modifications or enhancements to the Software and/ or to Licensee’s computer equipment or systems, or the set-up or configuration thereof which have the effect of circumventing or otherwise hindering LSI’s Subscription Management and Control System or related processes in any way that allows or would actually allow Licensee to use the Software outside of the Subscription Period.
(d) No Assignment. Neither this Agreement, nor any right, license or obligation on the part of Licensee hereunder, may be transferred, assigned, conveyed, delegated, sublicensed, moved, relocated or otherwise sold to any third party, in whole or in part, without the prior written consent of LSI in each instance, and any attempt by Licensee to do so will not be binding upon LSI. For purposes of this Agreement, any purported transfer or assignment of Licenses granted hereunder by operation of law or otherwise resulting from a merger, consolidation, or other reorganization of Licensee with or into a third party will be regarded as a prohibited assignment, unless otherwise approved or ratified by LSI (and Vendor, if applicable) in writing.
8. Limited Warranty
(a) Limited Warranty; Warranty Period. LSI represents and warrants that
(i) LSI will use its best, commercially reasonable efforts to ensure that the Software operates in conformance with the published specifications during the Subscription Period (hereinafter sometimes also referred to as the “Warranty Period”), subject to Licensee’s timely installation of such new releases and new versions of the Software as may be provided or otherwise made accessible to Licensee at no additional cost during the Subscription Period; and
(ii) any services will be performed in a professional and workmanlike manner, and warranted for a period of ninety (90) days from the date upon which such services were performed. The foregoing warranty will be null and void, however, if Licensee makes or attempts to make any modifications or enhancements to the Software or uses it in violation of any of the restrictions set forth in Section 7.
(b) Submission of Claims; Remedies. Warranty-related claims must be submitted in writing to LSI (and Vendor, if applicable) during the Warranty Period and be accompanied by a detailed description of the alleged defect or nonconformity. If the Software fails to operate in conformance with its published specifications at any time during the Warranty Period, then upon Licensee’s timely submission of a written warranty claim, LSI shall use its best, commercially reasonable efforts to correct such defect or nonconformity within thirty (30) days after its receipt of such claim. If LSI fails to remedy the alleged defect or nonconformity within such period of time, Licensee may terminate this Agreement upon written notice to LSI (and Vendor, if applicable) at any time within ten (10) days thereafter, and receive a pro-rata refund from Licensor of all License Fees paid by Licensee with respect to the nonconforming Software for the Subscription Period at issue.
(c) Waiver of Other Warranties. Licensee hereby acknowledges and agrees that neither LSI nor Vendor (if applicable) has made any representations or warranties to Licensee relating to the Software or the Documentation, or given any other assurances whatsoever, except those contained in this Agreement. EXCEPT AS TO THE WARRANTIES SET FORTH IN SECTION 8.a., LICENSEE ACCEPTS THE SOFTWARE AND THE DOCUMENTATION “AS IS” AND WITHOUT WARRANTY, EXPRESS OR IMPLIED. LICENSEE HEREBY EXPRESSLY WAIVES ANY AND ALL WARRANTIES, REPRESENTATIONS AND ASSURANCES OF ANY KIND, EXPRESS OR IMPLIED, WHICH ARE NOT EXPRESSLY SET FORTH HEREIN IN WRITING, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
9. Noninfringement
Licensor represents and warrants to Licensee that it has the right to grant Licensee the rights and Licenses contemplated herein, free and clear of all liens, claims, and encumbrances not specified herein, and that Licensee’s use of the Software in accordance with this Agreement will not infringe upon or misappropriate any U. S. copyright, trademark, or patent, or the trade secrets of any third party which are protected under U.S. law, or international treaty or convention to which the U.S. is a party or otherwise bound. Upon Licensee’s written notice to LSI (and Vendor, if applicable) of any claim against Licensee to the contrary, Licensor shall
(i) indemnify and hold Licensee, its officers, directors, employees, agents, and insurers harmless from and against all liabilities, damages, costs and expenses, including reasonable attorneys’ fees arising out of or related to any such claim,
(ii) defend through litigation or obtain through negotiation the right of Licensee to continue using the Software,
(iii) modify the Software so as to make it non-infringing, while still providing the same or substantially similar functionality, or
(iv) replace the Software with functionally equivalent software.
If LSI determines that none of the foregoing alternatives is technically or economically feasible, LSI (and Vendor, if applicable) reserves the right to terminate this Agreement and in such event, Licensor shall provide Licensee a pro-rata refund of all License Fees previously paid hereunder for the most recent Subscription Period during which the infringement was alleged to have occurred, and without further liability hereunder.
10. Limitation of Liability
(a) MAXIMUM LIABILITY. LICENSEE HEREBY ACKNOWLEDGES AND AGREES THAT THE MAXIMUM AGGREGATE LIABILITY OF LSI (AND VENDOR, IF APPLICABLE) UNDER THIS AGREEMENT IS AND SHALL BE LIMITED TO THE AMOUNT OF THE LICENSE FEES FOR THE MOST RECENT SUBSCRIPTION PERIOD ACTUALLY PAID BY LICENSEE HEREUNDER FOR THE SOFTWARE IN QUESTION, AND NEITHER LSI NOR VENDOR SHALL HAVE ANY LIABILITY WHATSOEVER TO LICENSEE WITH RESPECT TO ANY CLAIMS ARISING FROM OR RELATING TO THE USAGE OF THE SOFTWARE DURING ANY PERIOD OUTSIDE THE SUBSCRIPTION PERIOD(S) CONTEMPLATED HEREIN.
(b) CONSEQUENTIAL DAMAGES. IN NO EVENT WILL LSI (AND/ OR VENDOR, IF APPLICABLE) BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES (INCLUDING LOST SAVINGS, LOST PROFITS OR BUSINESS INTERRUPTION, OR OTHER SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES) ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
11. Confidentiality
(a) The Software and all programs developed hereunder, and all copies thereof are proprietary to LSI and title thereto remains in LSI. All applicable rights to patents, copyrights, trademarks and trade secrets in the Software or any modifications made at Licensee’s request are and shall remain in LSI. Licensee shall not sell, transfer, publish, disclose, display, or otherwise make available the Software, the Documentation, or copies thereof to any third parties or otherwise permit any of its employees or others who have access to the Software and the Documentation to do so. Licensee shall keep the terms and conditions of this Agreement, the Software, the Documentation and all such programs and copies thereof confidential and cause its employees and others who have access to the Software and the Documentation to do so, as well. Licensee’s obligations hereunder shall not apply to information that:
(i) becomes generally available to the public other than as a result of a disclosure made by Licensee;
(ii) was available to Licensee on a non-confidential basis prior to the disclosure to Licensee by LSI (or Vendor, if applicable); or
(iii) becomes available to Licensee on a non-confidential basis from any source other than LSI (and/ or Vendor, if applicable) provided that such source is not prohibited from transmitting the information to Licensee by any contractual, legal or fiduciary obligation. 3 / 3
(b) Licensee further acknowledges and agrees that, in the event of Licensee’s breach of its obligations under this provision, LSI will be entitled to temporary and permanent injunctive relief, without the necessity of bond, enjoining Licensee from committing any further breach, in addition to any other remedies to which LSI may be entitled at law or in equity.
12. Termination
(a) By Licensee. Licensee may terminate this Agreement and License(s) granted herein at any time upon written notice to LSI (and Vendor, if applicable) with or without cause.
(i) Without Cause. If Licensee terminates without cause, then it shall forfeit any prepaid Licensee Fees for the remainder of the Subscription Period.
(ii) For Breach. If Licensee gives notice of its intent to terminate for cause due to the occurrence of a breach on the part of LSI (or Vendor, if applicable) unless such breach is cured within thirty (30) days after the breaching party’s receipt of such written notice, and such breach is not thereafter cured prior to the expiration of such thirty (30) day period of time, then Licensee shall be entitled to a pro-rata refund from Licensor of any pre-paid License Fees for the remainder of the Subscription Period in question.
(b) By LSI (and/ or Vendor, if applicable) for Cause. LSI (and/ or Vendor, if applicable) may terminate this Agreement and License(s) granted herein at any time and without further notice if Licensee:
(i) Breaches any of its obligations under Section 7; without further notice or opportunity to cure.
(ii) Breaches any of its material obligations under this Agreement and fails to cure such breach within seven (7) days following its receipt of written notice thereof. (iii) Becomes insolvent, makes an assignment for the benefit of its creditors, or otherwise becomes the subject of any voluntary or involuntary bankruptcy proceeding under Chapter 7, Chapter 11 or Chapter 13 of the United States Bankruptcy Code, or under any similar bankruptcy or insolvency proceeding in the jurisdiction in which Licensee is located, if other than the United States of America, which is not dismissed within thirty (30) days following the date filed. (c) Cessation of Use. Upon the expiration or earlier termination of this Agreement or any Licenses granted hereunder for any reason, Licensee shall immediately cease all use of the Software and the Documentation, except for the limited functionality contemplated in Section 1.b. (d) Survival. Under no circumstances will the termination of this Agreement or any Licenses contemplated herein relieve either party of any of its confidentiality obligations hereunder, or any other obligations which might reasonably be presumed to survive the termination of this Agreement. The remedy of termination shall be in addition to, and not in lieu of, any other remedies to which either party may be entitled, at law or in equity.
13. Maintenance and Support during Subscription Period
Technical Support. LSI (or Vendor, if applicable) shall provide remote technical support for the Software via telephone and e-mail during its regular business hours during the Subscription Period. If applicable, Vendor may forward telephone calls or email requests for technical support which are in English-language to LSI for its direct response during LSI’s regular business hours. Any updates, upgrades and new releases to the Software released by LSI during the Subscription Period will be provided at no additional charge. LSI represents and warrants that any updates, upgrades and new releases provided during the Subscription Period will operate in accordance with their published specifications during the remainder of the Subscription Period.
14. General
(a) Entire Agreement. Licensee acknowledges that it has read this Agreement and understands and agrees to be bound by its terms and conditions. Licensee further acknowledges and agrees that this Agreement evidences the complete and exclusive agreement between the parties relating to the subject matter set forth herein, and supersedes any prior proposals, understandings or other agreements of any kind between the parties, whether express or implied, and oral and written.
(b) Force Majeure. Any delay or failure of either party to perform its obligations under this Agreement in a timely manner will be excused for the duration of the underlying Force Majeure Event (defined below) to the extent
(i) caused by an event or occurrence beyond such party’s reasonable control,
(ii) without such party’s fault or negligence and
(iii) such event or occurrence could not have been reasonably foreseen by such party, or was otherwise unavoidable. Examples of such events or occurrences include, without limitation, tornado, hurricane, earthquake, volcano, fire, flood, tsunami, governmental embargo, civil unrest, riot, war, act of terrorism, public health emergency, pestilence, or pandemic and any related quarantines and/ or other restrictions on travel or movement of persons or goods resulting therefrom, explosion or other natural or man-made disaster of any kind not caused by the party whose performance was delayed or prevented (each, a “Force Majeure Event”). In no event, however, will Licensee’s inability to pay for any Licenses hereunder or to otherwise perform any of its pecuniary obligations hereunder, be regarded as constituting a Force Majeure Event, or as otherwise relieving Licensee of any such obligations, in whole or in part.
(c) Non-Waiver. The waiver or failure of either party to this Agreement to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
(d) Modification or Amendment. No modification or amendment to or of this Agreement is effective unless made and entered into in writing and signed by each party, and approved by LSI in writing.
(e) Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
(f) Export Regulation. Licensee acknowledges that the Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
(g) US Government Rights. The Documentation and the Software are each a "commercial product" as defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of or contractor for the US Government or any contractor therefor, then Licensee will only receive those rights with respect to the Software and the Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
(h) Governing Law and Venue. The parties’ rights and obligations under this Agreement will be governed by and construed in accordance with the applicable laws of the State of Texas and the applicable laws of the United States of America of, without regard to any conflicts of laws provisions, to the extent they would require or permit the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Jurisdiction and venue in any action arising hereunder will lie exclusively in the Federal District Court for the Northern District of Texas, located in Dallas, Texas; provided, that if such court does not have subject matter jurisdiction, then jurisdiction and venue will lie in exclusively in the courts of the State of Texas located in Dallas County, Texas.
(i) Waiver of Jury Trial. Each party acknowledges and agrees that any controversy that may arise under this Agreement will likely involve complicated and difficult issues. Each Party therefore irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
Tyler, October 2022
LifeLine Software, Inc. (Developer and Publisher of RadCalc Software)
102 N College Ave Ste 1014
75702-7287 Tyler, TX
United States of America
and its authorized distributors and sub-distributors
Extended Maintenance and Support Services Agreement for RadCalc Software (this “Agreement”)
Status October 2022
LifeLine Software Inc., a Texas corporation (“LSI”), has developed and published RadCalc Software (the “Software”). LSI may provide Extended Maintenance and Support Services (defined below) for the Software directly and/ or through Vendors (defined below). In either case, LSI’s, Vendor’s (if applicable) and the Licensee’s rights and obligations relative to such Extended Maintenance and Support Services are subject to the terms, conditions, and restrictions in this Agreement, and in Purchase Order (defined below). The terms and conditions set forth in this Agreement are an integral part of Purchase Order, which is incorporated herein by reference and amended to include the additional terms and conditions set forth herein, which apply to LSI’s (and Vendor’s, if applicable) provision of Extended Maintenance and Support Services described in Purchase Order. BY YOUR CONDUCT IN SUBMITTING A PURCHASE ORDER TO LSI (AND/ OR VENDOR, IF APPLICABLE) WHICH INCORPORATES THIS AGREEMENT BY REFERENCE, YOU ACKNOWLEDGE AND AGREE THAT (1) YOU HAVE REVIEWED, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) THERE ARE NO OTHER AGREEMENTS BETWEEN YOU AND LSI (AND/ OR VENDOR, IF APPLICABLE) RELATING TO EXTENDED MAINTENANCE AND SUPPORT SERVICES OR ANY SIMILAR SERVICES OF ANY KIND, EXCEPT FOR THOSE PROVISIONS OF THE EULA (DEFINED BELOW) WHICH APPLY TO LSI’S (AND/ OR VENDOR´S, IF APPLICABLE) OBLIGATION TO PROVIDE MAINTENANCE AND SUPPORT SERVICES DURING THE WARRANTY PERIOD SPECIFIED IN THE EULA
1. Defined Terms
As used herein,
(i) “EULA” means the End User License Agreement between you and Licensor, which governs your rights and obligations relating to the use of the Software;
(ii) “Extended Maintenance and Support Services” means the services described in Purchase Order;
(iii) “Extended Maintenance Period” means the extended maintenance period specified in Purchase Order;
(iv) “Fees” means the fees specified in Purchase Order;
(v) “Licensor” sometimes refers to LSI in those instances where LSI is also Vendor identified in Purchase Order, and sometimes refers to Vendor in those instances where LSI is not Vendor identified in Purchase Order;
(vi) “Purchase Order” means a quotation, invoice, purchase order, ordering document, or other similar agreement between you and LSI, or you and the Vendor, if applicable. Each Purchase Order describes (i) the scope and Fees of Extended Maintenance and Support Services described therein, and (ii) the Extended Maintenance Period during which those services may be provided by LSI (and/ or Vendor, if applicable);
(vii) “Software” means the software described in Purchase Order, as owned or otherwise licensed by LSI;
(viii) “Vendor(s)” means distributors authorized by LSI to perform Extended Maintenance and Support Services and/ or their authorized sub-distributors, as well. Additional terms which are used but not otherwise defined above will have the meanings ascribed to such terms upon their first usage herein.
2. Acceptance
If you ask LSI (or Vendor, if applicable) to submit an invoice to you for Extended Maintenance and Support Services for a given Extended Maintenance Period and Fees, then
(i) you will be deemed to have offered to engage LSI (and Vendor, if applicable) to provide Extended Maintenance and Support Services for Extended Maintenance Period for Fees you’ve specified, subject to this Agreement, and
(ii) LSI (or Vendor, if applicable) will not be deemed to have accepted that offer until its delivery of the requested invoice. Upon your submission of Purchase Order or payment in response to Purchase Order, you will be deemed to have offered to engage LSI (and Vendor, if applicable) to provide Extended Maintenance and Support Services for Extended Maintenance Period and Fees specified therein subject to this Agreement, exclusively.
Any other terms, agreements, and documents that you may submit in connection with any such purchase order shall not be binding upon LSI (and Vendor, if applicable) notwithstanding anything to the contrary contained therein. LSI (and Vendor, if applicable), will not be bound under any quotation or Purchase Order you may submit, prior to its delivery to you of an invoice for Extended Maintenance and Support Services, which references the same Extended Maintenance Period and the same Fees specified in your original quotation or purchase order.
3. No Obligation to Accept Purchase Order; Conditional Acceptance
Notwithstanding the above or any understanding you may have to the contrary pursuant to any other agreement between you and LSI, and/ or you and Vendor, if applicable, you acknowledge and agree that LSI and Vendor, if applicable, shall have no duty or obligation to accept any Purchase Order, and that LSI’s (and Vendor’s, if applicable) acceptance of any such Purchase Order may be conditioned upon such factors as it may deem reasonably necessary and/ or appropriate in its sole discretion, and that such conditions may include, without limitation,
(i) your continual and uninterrupted subscription for Extended Maintenance and Support Service Fees for all periods subsequent to the expiration of the Warranty Period specified in the applicable EULA;
(ii) your payment to LSI (or Vendor, if applicable) of Fees for the Software payable under the EULA, for the most recent version of the Software released by LSI during any period in which you had not subscribed for Extended Maintenance and Support Services, or such lesser amounts as LSI (or Vendor, if applicable) may otherwise agree in writing.
4. Suspension of Services for Non-Payment or Other Breach
If you fail to pay any Fees for Extended Maintenance and Support Services, or for any other fees or amounts of any kind which you may owe LSI (or Vendor, if applicable) under any other agreement(s) between you and LSI, and/ or you and Vendor, if applicable, within the terms specified in Purchase Order, then LSI (and/ or Vendor, if applicable) may suspend its provision of Extended Maintenance and Support Services hereunder without notice or demand and without any liability hereunder, until such time as all outstanding amounts, including accrued and unpaid interest at the rate of 1.5% per month, have been paid in full.
LSI (or Vendor, if applicable) reserves the right to terminate Purchase Order and this Agreement (the “Maintenance and Support Agreement”) upon written notice at any time in the event that any Fees or other amounts remain outstanding for more than ninety (90) days, and in such event, shall be entitled to the recovery of damages in an amount equal to the full amount of all Fees specified in Purchase Order, and such other damages to which it may be entitled under applicable law, including without limitation, costs of collection, reasonable attorneys’ fees and court costs.
5. Limited Warranty; Exclusive Remedy
LSI (and/ or Vendor, if applicable) represents and warrants that all Extended Maintenance and Support Services provided hereunder will be provided in a good and workman-like manner, and that LSI will use its best commercially reasonably efforts to ensure that the Software continues to operate in accordance with its published specifications during Extended Maintenance Period. The foregoing warranties will be null and void, however, if you make or attempt to make any modifications or enhancements to the Software or use it in violation of any of the restrictions set forth herein.
If you believe the Software has failed to operate in conformance with its published specifications at any time during Extended Maintenance Period, you must submit a written warranty claim to LSI (and Vendor, if applicable) with a detailed description of the alleged non-conformity. Upon receipt of such claim, LSI shall use its best, commercially reasonable efforts to correct such nonconformity within thirty (30) days.
If LSI fails to remedy the nonconformity to your reasonable satisfaction within such period of time, then you may terminate the Maintenance and Support Agreement at any time upon written notice to LSI (and Vendor, if applicable) and receive a pro-rata refund of any prepaid Fees for the remainder of Extended Maintenance Period, as your sole and exclusive remedy.
6. Waiver of Other Warranties
You hereby acknowledge and agree that neither LSI nor Vendor (if applicable) has made any other representations or warranties relating to Extended Maintenance and Support Services to be provided hereunder, has not given you any other assurances aside from those expressly set forth in this Agreement, and that the only representations and warranties which LSI and Vendor (if applicable) has made in relation to Extended Maintenance and Support Services are those expressly set forth herein.
YOU HEREBY EXPRESSLY WAIVE ANY AND ALL WARRANTIES, REPRESENTATIONS AND ASSURANCES OF ANY KIND, EXPRESS OR IMPLIED, EXCEPT FOR THOSE WHICH ARE EXPRESSLY SET FORTH HEREIN IN WRITING, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
7. LIMITATIONS OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT:
(i) THE MAXIMUM AGGREGATE LIABILITY OF LSI (AND/ OR VENDOR, IF APPLICABLE) UNDER THIS AGREEMENT AND PURCHASE ORDER IS AND SHALL BE LIMITED TO THE AMOUNT OF FEES YOU’VE ACTUALLY PAID FOR EXTENDED MAINTENANCE AND SUPPORT SERVICES DESCRIBED THEREIN.
(ii) IN NO EVENT WILL LSI (AND/ OR VENDOR, IF APPLICABLE) BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES (INCLUDING LOST SAVINGS, LOST PROFITS OR BUSINESS INTERRUPTION, OR OTHER SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES) ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
8. Co-Terminus with Software License
In addition to the suspension and termination rights set forth in Sections 4 and 5 above, you and Licensor each acknowledge and agree that Extended Maintenance Period will be co-terminus with your license for the Software, and that Licensor shall have no duty or obligation to provide Extended Maintenance and Support Services for any Software for which you do not have a valid and current license, or for which your license has otherwise been terminated and/ or revoked.
In the event that your license to use the Software is terminated and/ or revoked prior to the expiration of Extended Maintenance Period for any reason other than a breach of any of the restrictions or other obligations on your part under the applicable EULA, then Licensor shall provide you with a pro-rata refund of any prepaid Fees for the remainder of Extended Maintenance Period, and shall have no further duty or obligation hereunder.
9. Governing Law and Venue
The parties’ rights and obligations under Purchase Order, this Agreement, and any and all other agreements relating to LSI’s and/ or Vendor’s provision of Extended Maintenance and Support Services, shall be governed by and construed in accordance with the laws of the State of Texas and the applicable laws of the United States of America, without regard to any conflicts of laws provisions, to the extent they would require or permit the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Jurisdiction and venue in any action arising hereunder will lie exclusively in the Federal District Court for the Northern District of Texas, located in Dallas, Texas; provided, that if such court does not have subject matter jurisdiction, then jurisdiction and venue will lie in exclusively in the courts of the State of Texas located in Dallas County, Texas.
10. Waiver of Jury Trial
Each party acknowledges and agrees that any controversy that may arise under this Agreement will likely involve complicated and difficult issues. Each Party therefore irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
11. Entire Agreement
This Agreement and Purchase Order in which it is incorporated by reference are the complete and exclusive agreement between you and LSI (and/ or Vendor, if applicable) relating to its provision of Extended Maintenance and Support Services, and supersedes any prior agreements of any kind, whether express or implied, and oral and written. Any terms and conditions which may be contained in any other Purchase Order, service order or other form of ordering document that you may submit to LSI and/ or Vendor, if applicable, will be void and of no effect, and will not be binding upon LSI and/ or Vendor, if applicable, under any circumstances.
12. Force Majeure
Any delay or failure of either party to perform its obligations under this Agreement in a timely manner will be excused for the duration of the underlying Force Majeure Event (defined below) to the extent
(i) caused by an event or occurrence beyond such party’s reasonable control,
(ii) without such party’s fault or negligence and
(iii) such event or occurrence could not have been reasonably foreseen by such party, or was otherwise unavoidable. Examples of such events or occurrences include, without limitation, tornado, hurricane, earthquake, volcano, fire, flood, tsunami, governmental embargo, civil unrest, riot, war, act of terrorism, public health emergency, pestilence, or pandemic and any related quarantines and/ or other restrictions on travel or movement of persons or goods resulting therefrom, explosion or other natural or man-made disaster of any kind not caused by the party whose performance was delayed or prevented (each, a “Force Majeure Event”). In no event, however, will your inability to pay any Fees hereunder or to otherwise perform any of your pecuniary obligations hereunder, be regarded as constituting a Force Majeure Event, or as otherwise relieving you of any such obligations, in whole or in part.
13. Non-Waiver
The waiver or failure of any party to this Agreement to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
14. Modification or Amendment
No modification or amendment to or of this Agreement is effective unless made and entered into in writing and signed by each party, and approved by LSI in writing.
15. Successors and Assigns
This Agreement is binding on and inures to the benefit of the parties and their respective permitted successors and permitted assigns.
Tyler, October 2022
LifeLine Software, Inc. (Developer and Publisher of RadCalc Software)
102 N College Ave Ste 1014
75702-7287 Tyler, TX
United States of America
and its authorized distributors and sub-distributors