MediTrax is a
Corporate Sponsor
of the OEM Worldwide ListServ
and the
Medical Center MCOH-EH Maillist

HOME  

MEDITRAXTM SOFTWARE SUPPORT AGREEMENT [Specimen]



This Agreement is made between Occupational Health Systems, Inc., a California corporation with principal offices at 943 Ina Drive, Alamo, California 94507 (hereinafter "OHS") and ____________________________, with principal offices at ____________________________ (hereinafter "Licensee"). This Agreement will become effective only after it has been accepted and signed by a properly authorized officer of OHS.

WHEREAS, USER desires that OHS provide software updates and remote technical support for MediTraxTM software, subject to the terms and conditions hereof;

NOW, THEREFORE, in consideration of the annual Software Update and Technical Support Fee of _________________, and in reliance on the mutual agreements contained herein, the parties agree as follows:

1. DEFINITIONS

1.1 The "Licensed Software" means the copyrighted computer software and programs known as "MediTrax", for which USER has obtained a valid MediTraxTM Software License Agreement, together with associated Documentation, and any software modifications or upgrades which are delivered to USER by OHS under this Agreement or under any other agreement or arrangement between the parties.

1.2 "Update" means the latest version of MediTraxTM, including all of the lastest enhancements. Updates are released, at the discretion of OHS, to provide new features and enhancements to MediTrax. Updates are also released, as needed, to correct any significant nonconformance to the published Functional Specifications described in the "MediTrax Functions" information published on the Internet at www.meditrax.com/mtfunctions.html and as modified from time to time.

1.3 "Software Failure" means an operational failure of the Licensed Software. Software Failures may be caused by Programming Errors, or by factors external to the Licensed Software (such as hardware failure, network configuration problems, or communication failures between workstations and file servers). Software Failures may be manifested by the display of an "Error Message" displayed on the screen, or by a "lockup" condition in which the Licensed Software stops functioning and does not respond to keyboard input, or by errors in displayed and/or printed data.

1.4 "Programming Error" means a Software Failure caused by an underlying error in the source code of the Licensed Software.

1.5 The "Minimum System Requirements" means

  i. A Windows® 7 or Windows® 8 Operating System

  ii. A Pentium II or comparable CPU, 512 MB of RAM, SVGA monitor, keyboard, pointing device, 1 available printer port or network printer access, and 500 MB of available space on a hard drive or file server;

1.6 "Normal Business Hours" means 7:00 AM to 6:00 PM PST, Monday through Friday.

2. TERMS AND CONDITIONS

2.1 System Specifications. USER agrees to operate the software on a computer workstation which meets or exceeds the Minimum System Requirements. >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 numbers, 925-820-7758 or 800-626-4701, 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      .
 

Agreed to and accepted by: Agreed to and accepted by:

                                                     
Authorized signature and title

                                                     
Authorized signature and title
Date: Date:

Copyright copy; 2002-2017 Occupational Health Systems, Inc. All Rights Reserved.

CALENDAR
OF EVENTS
 
  • CHAAOHN
    Spring Conference
    Long Beach CA
    February 11
  • AAOHN
    National
    Conference
    New Orleans LA
    April 24-27
  • AOHP
    National
    Conference
    Denver CO
    September 6-9
  • -->
  • Western
    Occupational
    Health
    Conference
    Wailea
    Maui HI
    September 13-16
  • NAOHP
    RYAN Associates
    31st National
    Conference
    Chicago IL
    October 16-18
  • CSAOHN
    Annual Conference
    Sacramento CA
    November 9-11
  • NECOEM
    Annual Conference
    Newton MA
    November 30-
    December 1
  • MediTrax 5
    User Group
    Meetings
    Various Locations
    2017

  • ‡ Photo Credit:
    Peter Anderson
    (Sacramento)
  •