SOFTWARE LICENSE
THIS SOFTWARE LICENSE ("License") is
made as of the Effective Date by and between Synergistic Office
Solutions, Inc. a Florida corporation with offices located at
17445 E. Apshawa Road, Clermont, Florida 34711
("Synergistic") and the party identified below as
Licensee.
W I T N E S S E T H:
WHEREAS, Synergistic owns certain Software as
defined hereinafter, that provides accounts receivable
management, patient records, appointment scheduling and billing
support to healthcare providers; and
WHEREAS, Licensee has had an opportunity to
review the Software and is familiar with the Software; and
WHEREAS, Licensee desires to license such
Software; and
WHEREAS, Synergistic desires to grant Licensee
a license to use the Software, as provided hereunder.
NOW, THEREFORE, in consideration of the mutual
benefits of the covenants and restrictions herein contained,
Synergistic and Licensee hereby agree as follows:
ARTICLE I: RECITALS AND DEFINITIONS
Section 1.01 -- Recitals: The above
recitals and identification of parties are true and correct.
Section 1.02 -- Definitions: The
following definitions shall apply:
(1) Access: The term "access"
and variants thereof shall mean to store data in, retrieve data
from or otherwise approach or make use of (directly or
indirectly) through electronic means or otherwise.
(2) Authorized Person: The term
"Authorized Person" shall mean a person or
organization who is authorized in writing by Synergistic to
receive Confidential Information and who agrees to maintain the
confidentiality of such Confidential Information.
(3) Cancellation Notice: The term
"Cancellation Notice" shall mean that written notice
sent by one party to this License to the other party to this
License seeking to cancel this License because of breach by such
other party.
(4) Computer: The term
"Computer" shall mean those certain computer systems
owned or leased by Licensee, located at the Licensee Facility
and identified in Exhibit A, which is attached hereto and by
this reference incorporated herein.
(5) Confidential Information: The term
"Confidential Information" shall mean all information
disclosed by Synergistic to Licensee which is not: (i) already
known to Licensee; (ii) in the public domain; (iii) conveyed to
Licensee by a third party; (iv) released by Synergistic without
restriction; (v) independently developed by Licensee; and (vi)
required by Court Order to be released by Licensee. For purposes
of this definition, Confidential Information shall be deemed to
include all information concerning this License, the Software
and Documentation.
(6) Defect: The term "Defect"
shall mean programming or software design errors which
substantially impair the performance, utility and functionality
of the Software on the Computer as represented in the
Documentation.
(7) Defect Notice: The term
"Defect Notice" shall mean that certain written notice
from Licensee to Synergistic identifying Defects.
(8) Delivery Date: The term
"Delivery Date" shall mean the date Synergistic
delivers the Software to Licensee.
(9) Documentation: The term
"Documentation" shall mean that certain Software
user's guide in printed or electronic form as made available to
Licensee by Synergistic on the Delivery Date.
(10) Effective Date: The term
"Effective Date" shall mean the first date this
License is signed by both Synergistic and Licensee, whichever is
later.
(11) Implement: The term
"implement" and variants thereof (including, but not
limited to, the terms "implementation",
"implementing" and "implemented") shall mean
to load and make fully functional for user access and use.
(12) License Fee: The term
"License Fee" shall mean the amount of money specified
as the License Fee in Exhibit A, which is attached hereto and by
this reference incorporated herein.
(13) License Term: The term
"License Term" shall mean a period of time beginning
on the Effective Date and continuing for a period of twenty (20)
years unless, prior to the expiration of such twenty (20) years,
this License is terminated or canceled in accordance with
Article IV of this License.
(14) Licensee: The term
"Licensee" shall mean the party identified as Licensee
on the signature page of this License.
(15) Licensee Facility: The term
"Licensee Facility" shall mean the facilities of
Licensee identified in Exhibit A, which is attached hereto and
by this reference incorporated herein.
(16) Support Agreement: The term
"Support Agreement" shall mean that certain Software
Support Agreement between Synergistic and Licensee (as Customer
there under).
(18) Restatements: The term
"Restatements" shall mean Section 757 of the
Restatement of Torts, Section 39 of the Restatement (Third) of
Unfair Competition, and Section 1 of the Uniform Trade Secrets
Act.
(19) Software: The term
"Software" shall mean the executable code for that
certain software as made available by Synergistic to Licensee on
the Delivery Date and identified in Exhibit A, which is attached
hereto and by this reference incorporated herein.
(20) Termination Notice: The term
"Termination Notice" shall mean that written notice
sent by one party to this License to the other party to this
License seeking to terminate this License.
(21) Unauthorized Access: The term
"Unauthorized Access" shall mean any access to the
Software or Documentation except for the exclusive purposes of
providing accounts receivable management, patient records,
appointment scheduling and billing support to healthcare
providers; evaluating the performance, utility and functions of
the Software; and training employees of Licensee in the use of
the Software.
(22) Unauthorized User: The term
"Unauthorized User" shall mean any individual who
accesses the Software or Documentation except for: (1) employees
of Licensee authorized by Licensee to access the Software for
the exclusive purposes of providing accounts receivable
management, patient records, appointment scheduling and billing
support to healthcare providers; evaluating the performance,
utility and functions of the Software; and training employees of
Licensee in the use of the Software and (2) Authorized Persons
who are authorized in writing by Synergistic to access the
Software and Documentation.
ARTICLE II: SCOPE OF LICENSE
Section 2.01 -- Grant of License:
Synergistic hereby grants to Licensee a non-exclusive and
non-transferable license to use the Software on the Computer and
to use the Documentation at the Licensee Facility for the
License Term for the exclusive purposes of providing accounts
receivable management, patient records, appointment scheduling
and billing support to healthcare providers, subject to the
terms and provisions of this License.
Section 2.02 -- Acceptance: Synergistic
shall deliver the Software to Licensee on the Delivery Date.
Licensee shall implement the Software on the Computer. The
Software shall be deemed accepted by Licensee thirty (30) days
after delivery of the Software unless Defect Notice is received
by Synergistic by such thirtieth (30th) day. Upon
receiving Defect Notice from Licensee, Synergistic shall review
the asserted Defect to determine if the Defect is valid. If, in
the reasonable professional judgment of Synergistic the asserted
Defect is valid, Synergistic shall correct the Defect and
resubmit the Software for acceptance by Licensee. If, in the
reasonable professional judgment of Synergistic the asserted
Defect is not valid, Synergistic shall submit to Licensee a
written explanation of the reasons why such asserted Defect is
not valid. The written explanation of Synergistic set forth
herein shall be deemed accepted by Licensee within ten (10) days
after receipt by Licensee of the written explanation unless
Synergistic receives from Licensee written notice rejecting such
explanation and terminating this License within such ten (10)
day period. Upon receipt of Defect Notice from Licensee by
Synergistic as set forth above, the Software shall be deemed
accepted by Licensee except as to the asserted Defects specified
in the Defect Notice.
Section 2.03 -- Risk of Loss: Licensee
shall assume risk of loss to the Software and Documentation as
of the Delivery Date.
Section 2.04 -- Authorized Use:
Licensee shall prevent Unauthorized Users from accessing the
Software and Documentation. Licensee shall prevent Unauthorized
Access to the Software and Documentation.
Section 2.05 -- Site Restriction:
Licensee shall use the Software only on the Computer and only at
the Licensee Facility.
ARTICLE III: PAYMENT
Section 3.01 -- Fees: Licensee shall
pay the License Fee to Synergistic on the Effective Date.
Section 3.02 -- Costs: Licensee shall
pay all direct costs incurred or anticipated by Synergistic in
providing any services pursuant to this License excluding
reasonable telephone, postage, shipping, and reproduction costs
(as determined exclusively by Synergistic). Such direct costs
shall include (without limitation) travel, per diem, and
expedited shipping costs.
Section 3.03 -- Invoicing and Payment:
Synergistic shall invoice Licensee for any costs incurred or
anticipated by Synergistic in providing services under this
License at the time such costs are determined by Synergistic.
Licensee shall pay any such invoice in full immediately upon
receipt.
Section 3.04 -- Taxes: Licensee shall
pay any and all applicable taxes (excluding income taxes
assessed against Synergistic).
Section 3.05 -- Late Fee: Any amount
which is not paid when due by Licensee shall be increased by a
late charge equal to 1% of such unpaid amount for each month in
which such amount is due and not paid.
Section 3.06 -- Refund: Upon
termination or cancellation of this License, Synergistic shall
be entitled to retain all payments rendered to Synergistic under
this License, including (without limitation) all fees and
expenses rendered to Synergistic by Licensee hereunder.
Termination or cancellation of this License shall not terminate
or cancel any payment obligation of Licensee under this License.
ARTICLE IV: TERMINATION
Section 4.01 -- Termination Limitations:
This License shall only be terminated and canceled as provided
under this Article IV.
Section 4.02 -- Term: This License
shall be valid for the License Term.
Section 4.03 -- Termination: Licensee
may terminate this License for convenience upon providing thirty
(30) days advance Termination Notice to Synergistic.
Section 4.04 -- Cancellation for Cause:
If a party violates its obligations under this License, the
other party may cancel this License by sending Cancellation
Notice describing the noncompliance to the non-complying party.
Upon receiving Cancellation Notice, the non-complying party
shall have ten (10) days from the date of such notice to cure
any such noncompliance. If such noncompliance is not cured
within the required ten (10) day period, the party providing
Cancellation Notice shall have the right to cancel this License
as of the eleventh (11th) day after the date of the
Cancellation Notice.
Section 4.05 -- Nonpayment:
Notwithstanding anything to the contrary hereunder, Licensee
failure to pay an invoice when due shall be sufficient cause for
cancellation of this License as provided under Section 4.04.
Section 4.06 -- Destruction upon
Termination: Upon termination or cancellation of this
License, Licensee shall destroy all copies of the Software and
Documentation provided to Licensee by Synergistic pursuant to
this License and shall provide Synergistic with a certificate of
compliance with this Section 4.06 signed by an authorized
representative of Licensee.
ARTICLE V: WARRANTY
Section 5.01 -- Performance Warranty:
Synergistic represents and warrants that the Software shall
perform substantially as represented in the Documentation. In
the event Licensee is not satisfied with the Software for any
reason, Licensee may return the Software to Synergistic within
forty-five (45) days after the Delivery Date for a full refund
of the License Fee, provided however, that the Software is
functioning and in substantially similar condition as provided
to Licensee (as determined in the exclusive discretion of
Synergistic). A full refund of the License Fee shall be subject
to the discretion of Synergistic to account for loss, damage, or
modification to the Software caused by Licensee.
Section 5.02 -- WARRANTY LIMITATION:
THE FOREGOING PERFORMANCE WARRANTY OF SECTION 5.01 IS IN LIEU OF
ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE AND WARRANTIES OF MERCHANTABILITY. EXCEPTING THE
WARRANTY EXPRESSLY ACKNOWLEDGED HEREUNDER, Synergistic HEREBY
DISCLAIMS AND LICENSEE HEREBY WAIVES ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY.
Section 5.03 -- Express Warranties:
Licensee hereby acknowledges and agrees that Synergistic
(including officers, employees, agents, directors and
independent contractors of Synergistic) has not made any express
warranties concerning the Software, excepting the performance
warranty of Section 5.01 and the warranties expressly
acknowledged under the Support Agreement, if any.
Section 5.04 -- Indemnification: If a
third party receives a judgment from a court of competent
jurisdiction upholding claims that the Software violates trade
secrets, copyrights, or patent rights of such third party,
Synergistic shall perform one or more of the following actions
(as determined exclusively by Synergistic) within one year of
the date judgment in favor of such third party's claim is
rendered by a court of competent jurisdiction:
(1) Replacement Replace the Software
with a non-infringing software product of substantially
equivalent functional and performance capability;
(2) Modification: Modify the Software
to avoid the infringement without substantially eliminating the
functional and performance capabilities of the Software;
(3) Obtain License: Obtain a license
for use of the Software from the third party claiming
infringement for use of the Software.
The remedies set forth herein shall be the
sole and exclusive remedy of Licensee under this Section 5.04.
Section 5.05 -- Limitation of Damages:
Synergistic shall not be liable to Licensee under this License
for any consequential, exemplary, incidental or punitive
damages, regardless of whether Synergistic has been advised of
the possibility of such damages in advance or whether such
damages are reasonably foreseeable. The liability of Synergistic
for any reason and for any cause of action whatsoever in
connection with this License and the Software, regardless of the
form of action, whether in contract or in tort, including
negligence, shall not exceed the License Fee paid by Licensee to
Synergistic pursuant to this License. This Section 5.05 shall
survive termination or cancellation of this License.
Section 5.06 -- Force Majeure:
Synergistic shall not be liable to Licensee for failing to
perform its obligations under this License because of
circumstances beyond the control of Synergistic. Such
circumstances shall include, but not be limited to, any acts or
omissions of any government or governmental authority, natural
disaster, act of a public enemy, riot, sabotage, dispute or
differences with workers, power failure, computer failure,
telecommunications failure, third party software defects, delays
in transportation or deliveries of supplies or materials, acts
of God, or terrorism.
Section 5.07 -- No Contest: Licensee
shall not contest or aid in contesting the ownership or validity
of the trademarks, service marks, trade secrets or copyrights of
Synergistic.
Section 5.08 -- Indemnification: Except
as provided in Section 5.04 of this License, Licensee shall
release, defend, indemnify and hold harmless Synergistic from
and against any and all claims, damages and liability arising
from (i) the negligence of Licensee; (ii) any breach by Licensee
of its obligations hereunder; (iii) the security, privacy,
publicity, back-up or loss of Licensee's data; or (iv) any use
of the Software by Licensee. This Section 5.08 shall survive
termination or cancellation of this License.
Section 5.09 -- Cooperation: Licensee
shall provide Synergistic information concerning the Computer
and Software, as may be requested by Synergistic from time to
time, and shall fully cooperate with Synergistic in good faith
in the performance of this License.
ARTICLE VI: INTELLECTUAL PROPERTY
Section 6.01 -- Ownership and Title:
Title to the Software and Documentation including ownership
rights to patents, copyrights, trademarks and trade secrets in
connection therewith shall be the exclusive property of
Synergistic.
Section 6.02 -- Confidential Information:
Licensee shall not disclose Confidential Information except to
Authorized Persons. Licensee shall not duplicate, use or
disclose Confidential Information except as otherwise permitted
under this License.
Section 6.03 -- Trade Secrets: Licensee
hereby acknowledges and agrees that the Confidential Information
derives independent economic value (actual or potential) from
not being generally known to other persons who can obtain
economic value from its disclosure or use and from not being
readily ascertainable by proper means by other persons who can
obtain economic value from its disclosure or use; is the subject
of reasonable efforts under the circumstances to maintain its
secrecy; and is a trade secret as defined under Chapter 688 of
the Florida Statutes [Section 688.002(4)] and the Restatements.
Section 6.04 -- Reverse Engineering:
Licensee shall not reverse engineer the Software and shall not
allow the Software to be reverse engineered.
Section 6.05 -- Backup Copy:
Notwithstanding anything in this License to the contrary,
Licensee may create one copy of the Software only for backup use
on the Computer at the Licensee Facility.
Section 6.06 -- Copies: Except as
provided in Section 6.05, Licensee shall not copy the Software
or Documentation and shall not allow the Software or
Documentation to be copied without the prior written consent of
Synergistic.
Section 6.07 -- Modifications: Licensee
shall not modify the Software and shall not allow the Software
to be modified without the prior written consent of Synergistic.
Licensee shall not use the Software or any materials incident
thereto to develop computer software without the prior written
consent of Synergistic. If the Software is modified, such
modifications shall be the sole and exclusive property of
Synergistic and Synergistic shall own all of the rights, title
and interests to such modifications and any resulting computer
software, including (but not limited to) any and all copyrights,
patents and trade secrets related thereto.
Section 6.08 -- No Contest: Licensee
shall not contest or aid in contesting the ownership or validity
of the trademarks, service marks, trade secrets or copyrights of
Synergistic.
Section 6.09 -- Continuation: The terms
and provisions of this Article VI shall survive termination and
cancellation of this License.
ARTICLE VII: MISCELLANEOUS
Section 7.01 -- Assignments: All
assignments of rights under this License by Licensee without the
prior written consent of Synergistic shall be void.
Section 7.02 -- Entire License:
Excepting the Support Agreement, if any, this License contains
the entire understanding of the parties and supersedes previous
verbal and written agreements between the parties concerning
licensing of the Software.
Section 7.03 -- Equitable Remedies: The
parties hereby acknowledge that damages at law may be an
inadequate remedy for Synergistic. Therefore, Synergistic shall
have the right of specific performance, injunction or other
equitable remedy in the event of a breach of this License by
Licensee.
Section 7.04 -- Amendments and
Modifications: Waivers, alterations, modifications or
amendments of a provision of this License shall not be binding
unless such waiver, alteration, modification or amendment is in
writing and signed by Synergistic.
Section 7.05 -- Severability: If a
provision of this License is rendered invalid, the remaining
provisions shall remain in full force and effect.
Section 7.06 -- Captions: The headings
and captions of this License are inserted for reference
convenience and do not define, limit or describe the scope or
intent of this License or any particular section, paragraph, or
provision.
Section 7.07 -- Counterparts: This
License may be executed in multiple counterparts, each of which
shall be an original, but which together shall constitute one
and the same instrument.
Section 7.08 -- Governing Law: This
License shall be governed by the laws of the State of Florida
and venue shall be Duval County, Jacksonville, Florida.
Section 7.09 -- Notice: All
communications shall be in writing. Notices shall be deemed
delivered when delivered by hand, commercial overnight delivery
or by Certified or Registered Mail - Return Receipt Requested -
to the address set forth below for Synergistic and to the
address set forth on the signature page of this License for
Licensee. Notice shall be deemed given on the date of receipt -
as evidenced in the case of Certified or Registered Mail by
Return Receipt.
Synergistic:
Synergistic Office Solutions, Inc.
17445 East Apshawa Road
Clermont, FL 34711-9049
Section 7.10 -- Pronouns/Gender:
Pronouns and nouns shall refer to the masculine, feminine,
neuter, singular or plural as the context shall require.
Section 7.11 -- Waiver: Waiver of
breach of this License shall not constitute waiver of another
breach. Failing to enforce a provision of this License shall not
constitute a waiver or create an estoppel from enforcing such
provision.
Section 7.12 -- Relationship of the Parties:
It is agreed that the relationship of the parties is primarily
that of licensee and Synergistic. Nothing herein shall be
construed as creating a partnership, an employment relationship,
or an agency relationship between the parties, or as authorizing
either party to act as agent for the other. Each party shall
maintain its separate identity.
Section 7.13 -- Arbitration: Any
controversy or claim arising out of or relating to this License,
or breach thereof, shall be settled by arbitration in accordance
with the Commercial Arbitration Rules (excluding Expedited
Procedures) of the American Arbitration Association in the City
of Jacksonville, Florida. Judgment upon the award rendered by
the arbitrators may be entered in any Court having jurisdiction
thereof, unless a subsequent request for reconsideration has
been filed by either under this Section 7.13. Three qualified
arbitrators shall be appointed in accordance with the Commercial
Arbitration Rules (excluding Expedited Procedures) of the
American Arbitration Association and this License. Such
qualified arbitrators shall be members of the Florida Bar and
shall have at least three years of experience in computer law
matters. Each party shall have the right of discovery as set
forth in the Federal Rules of Civil Procedure. A stenographer
shall be present at the arbitration proceedings and the
stenographer record shall be the official record of the
proceeding. The arbitration award shall be in writing and shall
include findings of fact and conclusions of law. Both parties
shall have the right to appeal any decision by the arbitrators
by filing a request for reconsideration of any arbitration
decision with the American Arbitration Association within ninety
days of receiving such decision. Upon receiving such request for
reconsideration, the American Arbitration Association shall
reconsider the matter de novo using a different panel of three
appellate arbitrators and the forgoing procedures. Such panel of
appellate arbitrators shall be selected using the same
procedures as used to select the original panel of arbitrators.
Each party shall pay an equal share of the fees and expenses of
the arbitrators and administrative fees and expenses of
arbitration. Florida Statue §682 shall apply.
Section 7.15 -- Assurances: Each party
hereby represents and warrants that all representations,
warranties, recitals, statements and information provided to
each other under this License are true, correct and accurate as
of the Effective Date of this License to the best of their
knowledge.
Section 7.16 -- Litigation Expense: In
the event of litigation or arbitration arising out of this
License, each party shall pay its own costs and expenses of
litigation and arbitration (excluding fees and expenses of
arbitrators and administrative fees and expenses of
arbitration).
IN WITNESS WHEREOF, this License has been
executed as of the Effective Date.
Synergistic:
Synergistic Office Solutions, Inc.
Signature:______________________________
Print Name:_____________________________
Title :__________________________________
Date:__________________________________
Licensee:_______________________________
Signature:_______________________________
Print Name :_____________________________
Title :___________________________________
Date:___________________________________
Address :________________________________
________________________________________
