END USER LICENSE AGREEMENT ® VOICE RECOGNITION SOFTWARE1.0, Updated November 13, 2015
THIS END USER LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN THE LICENSEE ("YOU") AND ONEPACS, LLC ("COMPANY" or "ONEPACS"). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE. BY CLICKING THE "ACCEPT" BUTTON, SIGNING A WRITTEN COPY OF THIS AGREEMENT, AND/OR BY DOWNLOADING OR USING SOFTWARE (AS DEFINED BELOW) AFTER VIEWING THIS AGREEMENT, YOU ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS AGREEMENT. YOUR USE OF THE RESOURCES (AS DEFINED BELOW) CONSTITUTES YOUR CONSENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. 1.GRANT OF LICENSE. Subject to your compliance with the terms and conditions hereof, Company shall grant you or, if you are not an individual, one or more specific employees designated by you, a non-exclusive, non-transferable non-sublicensable revocable license to install and use, on those desktop or laptop computers regularly used by such individuals, one copy of the OnePacs Voice Recognition product ("Software"), in executable form, including any documentation files accompanying the Software ("Documentation"), solely for use in connection with any OnePacs-branded products (including without limitation the OnePacs Report Generator, OnePacs RIS, OnePacs diagnostic medical imaging teleradiology PACS (Picture Archiving and Communication System)) ("OnePacs Products"). You agree to cease use of and destroy the copy of the Software you are using upon your receipt of any updated versions of the Software. The Software and Documentation shall be known collectively as "Resources" and used only by you or by your authorized designated user for a Permitted Use (as defined below), and not in the operation of a service bureau or for the benefit of any other person or entity. You are required to cease use of and uninstall all copies the Software, including all copies in use by your designated users, and destroy all copies or backup copies of the Software, including all copies under the control of your designated users, immediately upon the request of Company for Company’s convenience. Company reserves all rights in and to the Software not expressly granted to you under this Agreement. The terms of this license shall govern any updates or upgrades provided by Company that replace or supplement the Software, unless such update or upgrade is accompanied by a separate license in which case the terms of that license will govern. Notwithstanding the foregoing, Company shall be under no obligation to provide any updates, upgrades, enhancements, modifications, revisions, or additions to the Software or any technical support for the Software. 2. PERMITTED AND PROHIBITED USES. Use of the Resources is permitted only by authorized users of the OnePacs Products in conjunction with the use of OnePacs Products (the "Permitted Use"). You shall not use the Resources in a manner in which the provision of patient care would depend or rely solely upon the Resources. The Resources may be subject to unavailability due to maintenance, the installation of updates or upgrades, technical faults, or the decision of OnePacs to terminate this Agreement. You agree that your alternative solutions shall be at all times maintained in a fully functional state, such that all functionality accessed in the Resources shall be redundant with the capabilities of your alternative solution(s), and such that any malfunction or failure of the Resources to perform will not impact the delivery of patient care at your facility, or your business activities.3. PROHIBITED USERS.Use of the Resources by the following groups of individuals or entities is expressly prohibited: any individual or entity who is affiliated with, employed by, consulting with, acting as a proxy for, or otherwise associated with any firm, group, individual, or any other entity that is involved in the provision of medical software or medical application services, including but not limited to medical voice recognition services, PACS systems or services. The foregoing prohibition shall supersede and void any agreement to the contrary, including without limitation any agreement that may be unknowingly or inadvertently entered into between Company and any such individual or entity, with the exception of clauses within any such agreement designed to give Company recourse to recover damages resulting from use by a Prohibited User. You agree that if any individuals or entities access any Resources provided by Company in breach of this Section 3, such breach may result in substantial damages to Company, including breach of trade secrets as well as the incurring of expenses related to Company’s operating and distributing the Resources, and you agree that (a) Company may seek monetary damages as well as injunctive and non-injunctive relief in response to said breach, (b) Company may seek such damages and relief in any court of competent jurisdiction of Company’s choosing, (c) the scope of relief and extent of damages available to Company shall be liberally interpreted by the Court, and (d) upon successful action by Company, you shall reimburse Company for all costs incurred, directly or indirectly, in the pursuit of said relief and damages.4. COPYRIGHT. The Resources (which shall include any images, "applets", text and documentation incorporated into or accompanying the Software) are owned by Company and its suppliers, and is protected by United States copyright laws and international treaty provisions. The Resources are licensed, and not sold. You acknowledge and agree that the entire right, title and interest in and to the Resources, including associated intellectual property rights, shall remain with Company and its suppliers. Company retains all rights not expressly granted. 5. OTHER RESTRICTIONS. You may not copy the Resources, except as necessary in the ordinary course of exercising the rights granted in Section 1, provided that Company’s proprietary legends and copyright notices are reproduced on such copy. You may not modify, reverse engineer, decompile, or disassemble the Resources. You may not install or use the Software on a server or make the Software available over a network where it could be accessed or used by multiple users or devices at the same time. You may not disclose or distribute copies of the Resources to third parties, embed the Resources in products distributed to third parties, or permit use of or access to the Resources by third parties. You agree to comply with the export laws and regulations of the United States to assure that the Resources is not exported, directly or indirectly, in violation of law.6. NO WARRANTIES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE RESOURCES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. IN PARTICULAR, IT IS YOUR SOLE OBLIGATION AND RESPONSIBILITY TO VERIFY AND VALIDATE THE SOFTWARE’S TEXTUAL OUTPUT, INCLUDING ITS ACCURACY AND COMPLETENESS, AND YOU AGREE TO ASSUME SOLE RISK AND LIABILITY FOR YOUR FAILURE TO DO SO. THE RESOURCES ARE PROVIDED TO YOU ON AN "AS IS" BASIS. ONEPACS DOES NOT WARRANT THAT THE RESOURCES WILL MEET YOUR REQUIREMENTS OR OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ONEPACS DISCLAIMS ANY AND ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 7. LIMITATION OF LIABILITY. YOU AGREE TO ASSUME THE ENTIRE RISK FROM YOUR USE OF, OR INABILITY TO USE, THE RESOURCES. IN NO EVENT WILL ONEPACS OR ANY MEMBER OF THE ONEPACS GROUP BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR FINES OR PENALTIES IMPOSED BY GOVERNMENTAL AUTHORITIES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE RESOURCES, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF ANY MEMBER OF THE ONEPACS GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDERSTAND AND AGREE THAT ONEPACS IS NOT ENGAGED IN THE PRACTICE OF MEDICINE AND THAT THE RESOURCES ARE A TOOL TO BE USED ONLY IN AN APPROPRIATE PROFESSIONALLY SUPERVISED MANNER FOR A PERMITTED USE AND NOT FOR ANY OTHER USE INCLUDING, WITHOUT LIMITATION, USE AS A SOLE OR PRIMARY MEANS OF DELIVERING PATIENT CARE. THE AGGREGATE LIABILITY OF THE ONEPACS GROUP WITH RESPECT TO ANY OBLIGATIONS OF THE ONEPACS GROUP UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE RESOURCES OR OTHERWISE SHALL NOT EXCEED $50.00, WHICH THE PARTIES AGREE IS A REASONABLE ALLOCATION OF RISK WITH RESPECT TO YOUR USE OF THE RESOURCES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE PARTIES AGREE THAT THE PROVISIONS OF THIS AGREEMENT REPRESENT A REASONABLE ALLOCATION OF RISK BETWEEN YOU AND THE ONEPACS GROUP. 8. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and Documentation are "Commercial Items," as that term is 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 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States by OnePacs, LLC, a Delaware Limited Liability Company, and/or OnePacs Group companies.\9. INDEMNIFICATION. You agree that you shall assume the entire responsibility and liability for, and shall indemnify and save harmless Company, its Affiliates, and the respective directors, officers, employees, and agents (collectively, the "Company Group" or "OnePacs Group") from and against, any and all damages, loss or injury that any of them may sustain as a result of any third party claims arising out of or in connection with (a) your breach of this Agreement or (b) any patient care or related services provided by you or any of your employees. You agree to assume the defense of any such claims at law or in equity that may be brought against any member of the Company Group and to pay the amount of any judgment that may be entered against any member of the Company Group or pay the amount of any reasonable settlement of any such claims. "Affiliate", whether capitalized or not, means, with respect to a specified person, any person which directly or indirectly controls, is controlled by, or is under common control with the specified person as of the date of this Agreement, for as long as such relationship remains in effect.10. TERM. This Agreement is effective upon your acceptance of its terms or by your use of the Resources and shall continue until the designated expiration date which shall be March 1, 2016 unless otherwise designated at http://www.onepacs.com/opvreula.html (the "Term"). This Agreement shall terminate as of the expiration of the Term or upon termination by Company at any time in its sole discretion. Upon such termination, you agree to destroy any copies of the Software or Documentation which remain in your possession, including the single authorized backup copy. Upon your installation and use of a new release of the Software made available to you by Company in its sole discretion, you shall de-install and cease use of any preceding versions of the Resources.11. CONFIDENTIALITY. You acknowledge and agree that: (i) the Resources and any accompanying written materials are confidential; (ii) you will instruct and require all of your employees, agents, and contractors who have access to the Resources and any accompanying written materials to maintain the confidentiality thereof; (iii) you will exercise the same degree of care, but not less than reasonable care, to safeguard the confidentiality of the Resources and any accompanying written materials as you would exercise to safeguard the confidentiality of your own highly confidential property; and (iv) you will disclose the Resources and any accompanying written materials only to those employees, agents or contractors required to have knowledge of same to perform their duties and whom have agreed in writing to abide by the confidentiality obligations of this Agreement. The foregoing confidentiality provisions shall not apply to any information which (a) you can demonstrate was in your possession prior to receipt, (b) is or subsequently becomes publicly available without your breach of any obligation owed the disclosing party; (c) is disclosed to you without restriction on disclosure by a third party who had the right to disclose such information, or (d) you can demonstrate by written records was independently developed by you without reliance on the Resources or any accompanying written materials.12. AMENDMENT. Company reserves the right, in its sole discretion, to amend this Agreement from time to time by posting an updated version of the Agreement at http://www.onepacs.com/opvreula.html, provided that disputes arising hereunder will be resolved in accordance with the terms of the Agreement in effect at the time the dispute arose. We encourage you to review the published Agreement from time to time to make yourself aware of changes. Material changes to these terms will be effective upon the earlier of (i) your first use of the Software with actual knowledge of such change, or (ii) 30 days from publishing the amended Agreement at http://www.onepacs.com/opvreula.html. If there is a conflict between this Agreement and the most current version of this Agreement, posted at http://www.onepacs.com/opvreula.html, the most current version will prevail. Your use of the Software after the amended Agreement becomes effective constitutes your acceptance of the amended Agreement. 13. FEEDBACK. If you provide any ideas, feedback, suggestions, materials, information, opinions, or other input to Company ("Feedback"), regardless of any accompanying communication, Company has no obligation to review, consider, or implement your Feedback, and all such submissions are made on a non-confidential basis. You hereby grant to Company and its successors and assigns an unconditional, unlimited, perpetual, royalty-free, transferable, sublicensable, nonexclusive right and license to use, reproduce, modify, perform, display, disclose and otherwise commercially exploit for any purpose such Feedback without any compensation or attribution, and you waive and agree not to assert any so-called "moral rights" you may have in the Feedback. 14. USAGE DATA. You acknowledge and agree that Company may compile, collect and use diagnostic and usage data related, generated from or based on your use of the Software, including but not limited to user voice recognition errors and user created auto correction definitions, to facilitate the provision and improvement of the Software and related Services, provided that such information is in a form that does not personally identify you or your patients.15. MISCELLANEOUS. You may not assign this Agreement or any of your rights hereunder, nor delegate any of your obligations hereunder, without Company’s prior written consent. Any attempted assignment of this Agreement in violation of this Agreement without prior written consent from Company shall be invalid and unenforceable. This is the entire agreement and understanding between you and Company with respect to the subject matter hereof, and supersedes all prior agreements, representations, negotiations, proposals and understandings, whether written or oral, including those made by sales representatives or dealers of Company, concerning the subject matter hereof. The waiver or failure by either party to claim a breach of any provision shall not be a waiver of a breach of any other provision or a subsequent breach of the same provision. Company may, at any time, either request a signed certification by you verifying that the Resources are being used in accordance with the terms of this Agreement and/or audit your use of the Resources to ensure compliance with the terms and conditions of this Agreement. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, excluding choice of law principles; provided, however, that the terms of any applicable law now or hereafter enacted that is based on or similar to the Uniform Computer Information Transactions Act drafted by the National Conference of Commissioners on Uniform State Laws shall not apply. In any action relating to this Agreement, (a) each of the parties irrevocably consents to the exclusive jurisdiction of, and exclusive venue in, the federal and state courts located in the State of Delaware, and (b) each of the parties irrevocably waives the right to trial by jury.