>2.2 Technical Contact. USER shall designate
one of its employees as its principal technical contact for technical issues
related to this Agreement. USER may change its technical contact upon notifying
OHS of the name and telephone number of the new technical contact.
2.3 Telephone Support. OHS shall provide
reasonable telephone consultation with respect to the Licensed Software
to USER during normal business hours, excluding holidays. OHS shall maintain
a sufficient number of telephone lines to ensure a timely response and
to otherwise perform its obligations hereunder. USER agrees that all technical
support calls will be called in to the OHS Tech Support number, 925-820-7758,
or sent by e-mail to support@meditrax.com.
2.4 Operator Support. OHS shall use its best
efforts to provide prompt response in cases where USER's technical contact
requires assistance in using the Licensed Software, or assistance regarding
installation and operation of the Licensed Software on various operating
systems and in various network environments.
2.5 Error Correction. In the event USER experiences
a Software Failure, OHS agrees to provide to USER error correction services
as described below, provided that USER provides written documentation of
the Software Failure sufficient for OHS to reproduce the Software Failure
with OHS's master copy of the Licensed Software.
2.5.1 Timely Response. Within twenty-four
(24) hours of learning of a Software Failure in the Licensed Software,
OHS shall assign OHS engineers to correct the Software Failure; provide
USER with a report on the status of the corrections; and initiate work
to provide USER with a Workaround or Fix.
2.5.2 Software Failures Not Caused by Programming
Errors. If OHS reasonably believes that a problem reported by USER may
not be due to a Programming Error in the Licensed Software, OHS will so
notify USER. At that time, USER may (i) instruct OHS to proceed with problem
determination at its possible expense as set forth below, or (ii) instruct
OHS that USER does not wish the problem pursued at its possible expense.
If USER requests that OHS proceed with problem determination at its possible
expense and OHS reasonably determines that the Software Failure was not
due to a Programming Error in the Licensed Software, OHS shall immediately
stop further work and so inform USER, and USER shall pay OHS, at OHS's
then-current consulting rates, for all work performed in connection with
such determination, plus actual and reasonable expenses incurred therewith.
USER shall not be liable under this Section for problem determination or
repair to the extent that problems are due to Programming Errors in the
Licensed Software, nor shall USER be liable for work performed under this
Section in excess of its instructions or after USER has notified OHS in
accordance with the terms hereof that it no longer wishes work on the problem
determination to be continued at its possible expense.
2.6 Software Updates. OHS shall make available
to USER at no additional charge any and all software Update(s) released
during the term of this Agreement, including any Update(s) needed to correct
Software Failures.
2.7 Software "Bugs". USER expressly acknowledges its
awareness that software programming errors or "bugs" may occasionally be
included in an Improvement, and that the presence of such errors or "bugs"
shall not constitute a breach of this Agreement. OHS represents that
when an error or "bug" is reported, it shall use its best efforts to resolve
the error promptly
2.8 Major Software Upgrades. OHS shall make
available to USER at a discounted fee any major upgrades to the Licensed
Software which are released during the term of this Agreement. The discount
percentage shall be at least 30% of the upgrade fee.
2.9 On-Site Training. OHS shall make available
to USER at a discounted fee any on-site training desired by USER during
the term of this Agreement. The discount percentage shall be at least 20%
of the then-current fee for such on-site training, exclusive of OHS travel
costs incurred in conjunction with such training, which shall be the responsibility
of USER.
2.10 Exclusions. Notwithstanding any other
provisions of this Agreement to the contrary, the technical support obligations
of OHS shall not apply to Errors due to any of the following: (i) misuse
of the Licensed Software, (ii) unauthorized modification of the Licensed
Software, (iii) failure by USER to utilize compatible computer and networking
hardware and software, (iv) interaction with software or firmware not provided
by OHS, (v) any change in applicable operating system software, or (vi)
the failure of USER to install any Update. Nor shall OHS be obligated to
provide technical support for (i) USER's computer hardware; (ii) USER's
network hardware and/or software; and/or (iii) USER's Remote Access hardware
and software.
3. TERM AND TERMINATION
3.1 Term. This Agreement is made for a period
of twelve (12) months after the effective date indicated below.
3.2 Termination. USER may terminate its rights
and obligations under this Agreement at any time by providing written notice
to OHS. If USER fails to fulfill any material obligations under this Agreement,
OHS may, upon its election and in addition to any other rights it may have,
at any time terminate all rights granted by it hereunder by not less than
thirty (30) days written notice to USER specifying such breach unless,
within such thirty (30) day period, all breaches specified therein have
been cured. In the event of termination by either party, OHS shall have
no obligation to refund any amounts paid to it under this Agreement.
3.3 Renewal. This agreement may be renewed
by agreement of both parties on an annual basis. If USER chooses not to
renew this Agreement, OHS will be under no obligation to provide updates
or technical support for the Licensed Software until it has been brought
up to current standards. If USER subsequently desires software updates
and/or technical support, USER will be required to purchase a Software
Maintenance and Technical Support Agreement for the entire period during
which such an Agreement was not in effect, plus an annual Agreement effective
as of the date the software update or technical support is requested. OHS
will provide sixty (60) days notice before USER's technical support agreement
expires in order that USER will have adequate time to purchase or renew
coverage.
3.4 Renewal Fee. The amount of the annual fee
for renewals of this agreement shall be determined by OHS in its sole
discretion. OHS warrants to USER, however, that during the time USER maintains
this agreement continuously in effect, the amount of the annual fee shall not
be greater than the annual fee charged for the first year of this agreement.
4. GENERAL PROVISIONS
4.1 Limited Warranty. USER EXPRESSLY AGREES
THAT SOFTWARE UPDATES ARE PROVIDED "AS IS", WITHOUT ANY EXPRESS OR IMPLIED
WARRANTIES WHATSOEVER. NEITHER OHS NOR ANYONE ELSE WHO HAS BEEN INVOLVED
IN THE CREATION, PRODUCTION, DISTRIBUTION, OR SUPPORT OF THE SOFTWARE AND/OR
UPDATES SHALL BE LIABLE TO USER OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT
OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA OR LOSS
OF USE, OR ANY OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL OR OTHER DAMAGES,
ARISING OUT OF THE PURCHASE, USE OR INABILITY TO USE, OR OPERATION OF THE
SOFTWARE AND/OR UPDATES, EVEN IF OHS HAS BEEN ADVISED OF THE POSSIBILITY
OF ANY SUCH LOSS OR DAMAGE. IN NO EVENT SHALL THE LIABILITY OF OHS FOR
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE TECHNICAL SUPPORT SERVICES
AND/OR SOFTWARE UPDATE(S) PROVIDED UNDER THIS AGREEMENT EXCEED THE SOFTWARE
MAINTENANCE AND TECHNICAL SUPPORT FEE ACTUALLY PAID BY USER.
THE PARTIES FURTHER ACKNOWLEDGE THAT ANY
AMOUNTS SPENT IN THE PERFORMANCE OF THIS AGREEMENT SHALL BE SPENT WITH
THE UNDERSTANDING THAT THIS AGREEMENT MAY NOT BE RENEWED. ACCORDINGLY,
EACH PARTY HEREBY WAIVES ANY CLAIM AGAINST THE OTHER FOR LOSS OR DAMAGE
OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES OR OTHER COMPENSATION
FOR UNJUST ENRICHMENT, LOSS OF PROSPECTIVE PROFITS, REIMBURSEMENT FOR EXPENDITURES
OR INVESTMENTS MADE, OR COMMITMENTS ENTERED INTO OR GOODWILL), DUE TO FAILURE
OF THE PARTIES TO RENEW THIS AGREEMENT OR UPON EXPIRATION TO MAKE A SIMILAR
AGREEMENT.
ANY IMPLIED WARRANTIES WHICH ARE FOUND TO
EXIST ARE HEREBY LIMITED IN DURATION TO COINCIDE WITH THE NINETY (90) DAY
LIMITED EXPRESS WARRANTY ON THE DISKETTE(S) GIVEN ABOVE. SOME STATES DO
NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES,
NOR ANY LIMITATION ON HOW LONG IMPLIED WARRANTIES LAST, SO THESE EXCLUSIONS
OR LIMITATIONS MAY NOT APPLY TO YOU.
4.2 Entire Agreement. USER ACKNOWLEDGES THAT:
(1) USER HAS READ THIS ENTIRE AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS
AND CONDITIONS; (2) THIS AGREEMENT (TOGETHER WITH THE MEDITRAX SOFTWARE
LICENSE AGREEMENT ISSUED TO USER) CONSTITUTES THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE UNDERSTANDING BETWEEN THE PARTIES AND SUPERSEDES ANY AND
ALL PRIOR ORAL OR WRITTEN COMMUNICATION(S) RELATING TO THE SUBJECT MATTER
HEREOF; AND (3) THIS AGREEMENT MAY NOT BE MODIFIED, AMENDED, OR IN ANY
WAY ALTERED EXCEPT BY A WRITING SIGNED BY BOTH PARTIES.
4.3 Severability. In the event that any provision
of this agreement is held to be invalid, illegal or otherwise unenforceable,
such provision shall be deemed to have been deleted from this agreement,
while the remaining provisions of this agreement shall be unaffected and
shall continue in full force and effect.
4.4 Confidentiality. USER agrees that the
terms and conditions of this Agreement constitute confidential and/or proprietary
information of OHS; and USER agrees not to use this Agreement or its terms
or conditions for any commercial purpose of USER or others, and agrees
not to disclose its terms to anyone other than those employees of USER
having a need to know in connection with the execution, delivery, and administration
of this Agreement.
4.5 Governing Law; Legal Expense. This Agreement
shall be governed by the laws of the State of California, excluding that
body of law related to choice of laws, and of the United States of America.
In the event it is necessary for either party to retain the services of
an attorney or attorneys to enforce the terms of this Agreement, or any
of the conditions or rights contained herein, or to defend any action,
then the prevailing party in any such action shall be entitled to recover
from the other party its reasonable fees for attorneys and expert witnesses,
plus such expenses and court costs as may be fixed by any court of competent
jurisdiction.
4.6 Waiver. Any waiver by either party of
any provision of this Agreement shall not be construed as a waiver of any
other provision of this Agreement, nor shall such waiver operate as or
be construed as a waiver of such provision respecting any future event
or circumstance. No waiver of any provision of this Agreement shall be
effective unless in writing and signed by the party against whom such waiver
is sought to be enforced.
4.7 Headings. The section headings used in
this Agreement are intended primarily for reference and shall not by themselves
determine the construction or interpretation of this Agreement or any portion
hereof.
4.8 Notices. Any notice or request required
or permitted by this Agreement shall be in writing and shall be sent by
facsimile, or sent by recognized commercial overnight courier, or mailed
by United States registered or certified mail, addressed to the other party
at the address shown at the beginning of this Agreement or to such other
address as provided in writing by either party for such purpose. Any such
notice shall be effective as of the date of receipt.
4.9 Independent contractors. In performing
any and/or all of their respective obligations hereunder, OHS and USER
shall each operate as and have the status of being an independent contractor
of the other party, and neither party shall act as or be an agent or employee
of the other party. Neither party shall have any right or authority to
assume or create any obligations or to make any representations or warranties
on behalf of the other party, whether express or implied, or to bind the
other party in any respect whatsoever.
4.10 Force Majeure. Neither party shall be
liable for damages for any delay or failure of delivery arising out of
causes beyond their reasonable control and without their fault or negligence,
including, but not limited to, Acts of God, acts of civil or military authority,
fires, riots, wars, or embargoes.
4.11 Multiple Counterparts. This Agreement
may be executed simultaneously in two or more counterparts, each one of
which shall be deemed an original, but all of which shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties have caused
this Agreement to be duly executed as of the
day
of
, 20 .
