Software Product License (Terms and Conditions apply)
NO
197, Dr. Natesan
Road, Mylapore,
Chennai - 600004. Tamil Nadu, INDIA. +91 - 44 - 2498 1061 +91 - 44 - 2498 8226
Subject to the provisions
contained herein, M/s Media Logic Solutions Private Limited ("Licensor")
hereby grants to the License, a non-exclusive license to use the Licensed
Software and Documentation specified below:
Full Name of Licensee:
Address of Licensee:
Contact Person:
Tel No:
Fax No:
Product:
By signing this order Form, Licensee
agrees to all the terms and conditions attached ("the Agreement").
SOFTWARE LICENSING
AGREEMENT
This Agreement, effective
as of the Effective Date, is executed between Media Logic Solutions Private
Limited, a company incorporated under the provisions of the Companies
Act, 1956 and having its registered office at No. 353, Avvai Shanmugam
Salai, Gopalapuram, Chennai 600 086 (hereinafter referred to as LICENSOR);
and your or your organization, as the Licensee of the Licensed Software,
(hereinafter referred to as LICENSEE).
Whereas:
LICENSOR has developed
a comprehensive and flexible reporting package "SONOCARE" ("LICENSED
SOFTWARE") for structured ultrasound reporting to suit the needs
of a small clinic or a large imaging Department. The LICENSED SOFTWARE
is modular and has optional imaging engine for storage, archival and retrieval
of both DICOM and Non-DICOM IMAGES;
LICENSOR has developed
certain accompanying documentation regarding the LICENSED SOFTWARE
("DOCUMENTATION");
LICENSEE desires
to be licensed the modules of the LICENSED SOFTWARE described under Schedule
I hereto);
Whereas, LICENSOR is willing to grant a LICENSE on the terms and conditions
provided below:
NOW, therefore, in
consideration of the mutual covenants and promises contained herein, and
for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
As used in this agreement the following definitions
shall apply:
1.1
"Agreement"
shall mean this agreement between the LICENSOR and LICENSEE in respect
of theLICENSED SOFTWARE.
1.2
"Confidential Information"
shall mean any information relating to or disclosed in the course
of the Agreement, which is or should be reasonably understood to
be confidential or proprietary to the disclosing party. "Confidential
Information" shall not include information (a) that are shown by
documentary evidence to have been lawfully within LICENSEE's possession
prior to the EFFECTIVE DATE and not under a duty of non-disclosure;
(b) that are voluntarily disclosed to LICENSEE by a third party
which did not breach any obligation not to reveal any such data,
information or techniques in so disclosing; (c) that are developed
by the LICENSEE independently of the disclosure; (d) that are generally
known or revealed to the public other than by breach of the confidentiality
obligations of the LICENSEE of a third party.
1.3
"LICENSEE" shall mean the licensee of the Licensed
Software.
1.4
"DELIVERY DATE" shall
mean the date that the LICENSOR delivers the LICENSED SOFTWARE to
the LICENSEE, either through physical delivery and if delivery
is through mail, the date on which the Licensor ships the Licensed
Software by courier or registered mail, with acknowledgment due
to the Licensee to its designated address.
1.5
"Documentation" shall
mean the user manual(s), system documentation and any other materials
supplied by LICENSOR for use with the LICENSED SOFTWARE.
1.6
"EFFECTIVE DATE" shall mean the date of installation
of the LICENSED SOFTWARE.
1.7
"LICENSEE FEE" shall mean
the fee for licensing the LICENSED SOFTWARE specified in the attached
Schedule to the Agreement.
1.8
"LICENSED SOFTWARE" shall
refer to as SONOCARE, the software reporting solution for managing,
tracking and reporting a wide range of ultra sound studies developed
by the LICENSOR or any modules thereof which are licensed pursuant
to this Agreement and more fully described in Schedule I hereto.
1.9
LICENSOR" shall refer
to MEDIA LOGIC SOLUTIONS PRIVATE LIMITED, a company having its Office
at No: 353, Avvai Shanmugam Salai, Gopalapuram, Chennai-600 086,
INDIA.
2. GRANT OF LICENSE
2.1
LICENSOR hereby grants to the LICENSEE, and the LICENSEE hereby
accepts, a permanent non-exclusive and non-transferable license
to use the LICENSED SOFTWARE at the Licensee's premises specified
in Schedule 2.1 ("Authorised Location") for LICENSEE's internal
business purposes only subject to the terms and conditions of this
Agreement. LICENSEE may make only one copy of the LICENSED SOFTWARE
for back up or archival purposes. Such use shall not include remote
network access of the LICENSED SOFTWARE. LICENSEE's use of the LICENSED
SOFTWARE shall be in accordance with the terms described herein
and any accompanying user documentation and system documentation
("Documentation"). Except as expressly granted in this Section,
no other licenses to patents, copyright, trade marks, trade secrets
or other intellectual property or proprietary rights are granted
by implication, estoppel, exhaustion or any other theory. Under
no circumstances will the LICENSE granted hereunder be construed
as granting by implication, estoppel or otherwise, a license to
any licensor technology other than the LICENSOR SOFTWARE and the
Documentation as expressly defined herein.
2.2
The license
granted by this agreement authorizes use of this LICENSED SOFTWARE
by only by a Single User who is either an employee or an independent
contractor who has signed an appropriate non-disclosure agreement
with the LICENSEE ("Authorized User").
2.3
The license
granted by this Agreement authorizes use of the LICENSED SOFTWARE
on hardware which has the minimum system specifications set out
in Schedule 2.3.
2.4
LICENSEE
shall maintain adequate records of usage of the LICENSED SOFTWARE
by the Authorized Users to assure compliance with the limitations
of this license. Such Records shall be available to the LICENSOR
for inspection upon request during business hours upon reasonable
notice.
2.5
LICENSEE
shall not re-package the LICENSED SOFTWARE or any of its components
with any other software/hardware thereby creating any new software/hardware
solution.
3. SCOPE OF THE AGREEMENT
3.1
This agreement shall apply to the modules of the LICENSED SOFTWARE
that the LICENSEE is currently licensing from the LICENSOR and more
fully described in Schedule I hereto or shall license in the future.
Any additional modules that the LICENSEE desires to license to the
LICENSOR shall be mutually agreed upon by the parties in writing
and annexed to Schedule I and the list of additional modules so
annexed shall be deemed to be part and parcel of this Agreement
and shall be subject to the terms hereof. The license fee payable
in respect of such additional modules that may be licensed to the
LICENSOR shall be fixed by the LICENSOR from time to time.
3.2
No Maintenance, New Releases,
or Updates.
Unless the
Parties agree to otherwise in a separate maintenance agreement,
LICENSEE expressly acknowledges and agrees that LICENSOR is not
obligated to maintain the LICENSED SOFTWARE or to provide LICENSEE
with any new releases of or updates to the LICENSED SOFTWARE. To
the extent the Parties have executed a separate maintenance agreement,
any all error corrections, new releases and updates provided by
LICENSOR to LICENSEE under such maintenance agreement shall, upon
delivery, be deemed to be part of the LICENSED SOFTWARE for all
purposes of this License Agreement.
4. RESTRICTION AGAINST THIRD PARTY
USE
4.1
The LICENSED SOFTWARE
shall not be used by any other person or entity that is not an Authorized
User.
5. DELIVERY AND INSTALLATION
5.1
The LICENSED SOFTWARE may be delivered to the LICENSEE's premises
agreed upon between the LICENSOR and the LICENSEE. The risk of transit
until the LICENSED SOFTWARE is delivered to the LICENSEE's premises
as set out above shall be with the LICENSOR. Thereafter, any further
transit after taking delivery of the LICENSED SOFTWARE by the LICENSEE
as above would be at the risk of the LICENSEE.
5.2
Installation
of the LICENSED SOFTWARE shall be the LICENSEE's responsibility.
LICENSEE shall follow the installation procedures contained in the
documentation strictly and shall ensure the system requirements
necessary for such installation. LICENSEE shall be responsible for
the installation of the LICENSED SOFTWARE within thirty (30) days
of receipt of the LICENSED SOFTWARE.
6. ACCEPTANCE
6.1
The software will be deemed accepted when the software has been
installed and performs substantially in accordance with the Documentation
or if the LICENSEE does not reject the LICENSED SOFTWARE within
30 days of the DELIVERY DATE whichever is earlier.
7. PAYMENT OF SOFTWARE LICENSE FEE
7.1
The LICENSED SOFTWARE may be delivered to the LICENSEE's premises
agreed upon between the LICENSOR and the LICENSEE. The risk of transit
until the LICENSED SOFTWARE is delivered to the LICENSEE's premises
as set out above shall be with the LICENSOR. Thereafter, any further
transit after taking delivery of the LICENSED SOFTWARE by the LICENSEE
as above would be at the risk of the LICENSEE.
a.
Upon execution of this Agreement, 50% of
the invoice value shall be paid.
b.
Upon delivery and
installation of the LICENSED SOFTWARE and the LICENSEE's acceptance
of the same the remaining 50% of the License Fee shall be
paid.
7.2
In addition
thereto, the LICENSEE shall pay any taxes, charges or assessments
excluding taxes imposed on the net income of the LICENSOR, imposed
during the term of this Agreement by any foreign or domestic national,
state, provincial or local government bodies, or sub divisions thereof
relating to the provision of the LICENSED SOFTWARE to the LICENSEE
(collectively, "taxes"). If the LICENSEE is required by law to withhold
any such taxes directly from the amounts due to the LICENSOR, then
LICENSEE shall increase the amounts due to the LICENSOR so that
the amounts actually received by the LICENSOR after the deduction
or withholding of any taxes will equal 100% of the charges originally
owed.
8. ACKNOWLEDGEMENT OF LICENSOR'S OWNERSHIP
RIGHTS.
8.1
LICENSEE acknowledges that it obtains no ownership rights in the
software under the terms of the Agreement. All rights in the Software
including but not limited to Confidential Information, trade secrets,
trade marks, service marks, patents, and copyrights are, shall be,
and will remain the property of the LICENSOR. All copies of the
LICENSED SOFTWARE delivered to the LICENSEE remain the property
of the LICENSOR.
8.2
LICENSEE acknowledges
that any customization or development done by the LICENSOR to the
LICENSED SOFTWARE at the instance of or to meet the requirements
of the LICENSOR shall be the absolute property of the LICENSOR and
the LICENSEE shall have no right, title or interest whatsoever in
respect of such customization or development. The LICENSEE agrees
to execute any document or agreement necessary to more fully perfect
the title of the LICENSOR in respect of such portion of the LICENSED
SOFTWARE customized or developed for the LICENSEE. The LICENSEE
acknowledges that the LICENSOR is fully entitled to use such software
as part of its LICENSED SOFTWARE in the license or distribution
of the same to third parties.
9. CONFIDENTIAL INFORMATION.
9.1
Licensee acknowledges that the LICENSED Software and Documentation
contain proprietary and confidential information of the LICENSOR.
Licensee agrees to keep the LICENSED Software and Documentation
in confidence and to take all reasonable precautions to ensure that
no unauthorized persons have access to the LICENSED SOFTWARE and
Documentation, and that no unauthorized copies are made. Breach
of this provision shall be grounds for immediate termination of
this Agreement without further obligation to LICENSEE, at the LICENSOR's
option. LICENSEE is liable for all acts or omissions of its officers,
directors, employees, independent contractors and its other agents
as if LICENSEE had performed such act or made omission itself. For
the purpose of determining compliance with this Agreement, the LICENSOR
and its representatives shall have access to the places where the
LICENSED SOFTWARE and Documentation are located and used and shall
have the right to observe the use made of the LICENSED SOFTWARE
and the Documentation and to examine all instruments used in connection
therewith.
9.2
LICENSEE
shall not alter any proprietary markings on the LICENSED SOFTWARE,
including copyright, trademark, trade secret, and patent legends.
9.3
LICENSEE
shall not itself nor cause or permit others to decompile, disassemble,
or reverse engineer, de-code or otherwise attempt to derive any
assembly or higher level programming language, i.e. source code
or derive the proprietary logic, design or structure that is embodied
in the object code of the LICENSED SOFTWARE.
9.4
LICENSEE acknowledges
that, because of the nature of the Confidential Information, the
LICENSOR would suffer irreparable harm in the event of a material
breach of the provisions of this Agreement, and that monetary damages
would be inadequate to compensate the LICENSOR for such a breach.
Notwithstanding any other provision herein, LICENSEE agrees that,
in the event of a material breach or threatened material breach
by the LICENSEE of any such provisions. LICENSOR shall be entitled
to, in addition to such other legal and equitable remedies which
might be available, injunctive relief in any court of competent
jurisdiction against the threatened material breach or continuation
of any such material breach without showing or proving any actual
damage sustained by the LICENSOR. If the LICENSOR prevails in any
action brought to enjoin a material breach or a threatened breach
of this Agreement, it shall be entitled to reasonable attorney's
fees and costs in relation to such legal proceedings.
10. LICENSEE'S OBLIGATION FOR DATA
PROTECTION.
10.1
LICENSEE
is responsible for performing periodic backups of the data on the
computer system on which the LICENSED SOFTWARE is being used so
that the likelihood of data loss is minimized. LICENSEE shall be
solely responsible for back up software and hardware. LICENSEE shall
be responsible for keeping its computer system free of viruses.
11. WARRANTY.
11.1
LICENSOR warrants
that the LICENSED SOFTWARE will perform substantially in accordance
with accompanying documentation for a period of 90 days from date
of installation ("Software Warranty Period"). The LICENSOR also
warrants that all accompanying hardware supplied by the LICENSOR
will perform substantially in accordance with the provided documentation
for a period of 180 days from date of supply or 90 days from the
date of installation, whichever is earlier. The LICENSOR disclaims
all warranties in respect of composite cables, video cables, footswitches
and dongles. The LICENSEE acknowledges that in the event that the
dongle is lost, there shall be no replacement of the same by the
LICENSOR and the LICENSEE shall have to purchase the LICENSED SOFTWARE
once again.
11.2
LICENSOR AND ANY OTHER
THIRD PARTY FROM WHOM LICENSOR HAS LICENSED SOFTWARE, OR OUTSOURCED
HARDWARE OR TECHNOLOGY DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT
TO THE LICENSED SOFTWARE AND THE ACCOMPANYING DOCUMENTATION. LICENSOR
AND ANY THIRD PARTY FROM WHOM LICENSOR HAS LICENSED SOFTWARE, OR
OUTSOURCED HARDWARE OR TECHNOLOGY WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL,
INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL DAMAGES OR LOSSES INCLUDING
LOST PROFITS, LOST OPPORTUNITIES, INABILITY TO TRADE OR BUSINESS
INTERRUPTION OR LOSSES FROM PROBLEMS WITH THE LICENSED SOFTWARE,
DOCUMENTATION OR LICENSEE'S SYSTEM, INCREASED EXPENSES OF OPERATION
OR DAMAGES INCURRED BECAUSE OF ANY FAILURE TO MEET ANY DUTY INCLUDING
BUT NOT LIMITED TO ANY DUTY OF GOOD FAITH, LACK OF NEGLIGENCE OR
OF WORKMANLIKE EFFORT OR ANY OTHER DAMAGES ARISING OUT OF OR RELATED
TO THE SOFTWARE OR DOCUMENTATION, EVEN IF THE LICENSOR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS UNDER ANY CIRCUMSTANCES.
11.3
EXCLUSIVE REMEDY: LICENSEE's
EXCLUSIVE REMEDY AGAINST THE LICENSOR FOR BREACH OF THIS AGREEMENT
OR CAUSE OF ACTION OF ANY NATURE (INCLUDING WITHOUT LIMITATION,
TORT) RELATING TO OR ARISING FROM THIS AGREEMENT, THE LICENSED SOFTWARE
OR DOCUMENATATION INVOLVING THE LICENSOR OR ANY OF ITS AFFILIATES
OR AGENTS SHALL BE, AT THE LICENSOR'S OPTION BE (A) CORRECTION OF
ANY ERROR OR DEFECT IN THE LICENSED SOFTWARE AS TO WHICH THE LICENSEE
HAS GIVEN NOTICE (B) REPLACEMENT OF THE LICENSED SOFTWARE OR DOCUMENTATION
INVOLVED (C) REFUND OF PROPORTIONATE LICENSE FEES AS MAY BE DETERMINED
BY THE LICENSOR. UNDER NO CIRCUMSTANCES SHALL THE AGGREGATE LIABILITY
OF THE LICENSOR EXCEED THE LICENSE FEE RECEIVED IN RESPECT OF THE
LICENSED SOFTWARE.
11.4
Any Warranty under this
Agreement shall not apply in respect of damage to LICENSED SOFTWARE
or the accompanying hardware caused due to mishandling of equipment,
improper handling, electricity problem or any burn marks on the
products.
11.5
If any problem operational
failure or error of the LICENSED SOFTWARE has resulted from any
alteration of the program, accident, abuse or misapplication, then
this warranty shall be null and void, at the LICENSOR's option.
12. RESTRICTION ON TRANSFER TO A NEW
LOCATION.
12.1
LICENSEE may not transfer the storage or operation of the software
to a location other than the Authorized location except that the
LICENSEE may move the LICENSED SOFTWARE to a new location with prior
approval of the LICENSOR.
12.2
In case of
any transfer of the LICENSED SOFTWARE permitted under this agreement,
shipment of the LICENSED SOFTWARE to the new location shall be at
LICENSEE's sole expense, risk and control, and the LICENSEE shall
be solely responsible for the protection of the LICENSED SOFTWARE
during transport.
13. RIGHTS UPON TERMINATION.
13.1
Upon termination of this agreement, the LICENSEE's license to use
the LICENSED SOFTWARE shall terminate, and the LICENSEE shall immediately
turn over to the LICENSOR all copies of the LICENSED SOFTWARE and
Documentation, and any other confidential information relating to
the LICENSED SOFTWARE and Documentation and shall remove and erase
completely any copies of the LICENSED SOFTWARE installed or recorded
on any hard disc or other storage medium. LICENSEE shall promptly
certify to the LICENSOR in writing that it has complied with this
requirement.
13.2
Upon termination
of this agreement, LICENSEE shall pay to the LICENSOR all fees due
through the effective date of such termination. Unless otherwise
specified herein or otherwise agreed in writing, all fees collected
or accrued prior to the date of termination shall be retained by
the LICENSOR without any pro rata refund to the Licensee.
13.3
The termination
of this agreement shall not extinguish any rights or obligations
of the parties relating to protection of Confidential Information.
14. GENERAL PROVISIONS.
14.1
Applicable Law: This agreement shall
be construed pursuant to substantive law of India.
14.2
Shipping costs and risk
of loss: All costs relating to the shipment of the LICENSED SOFTWARE
and the Documentation, including freight and insurance costs shall
be borne by the LICENSOR. When delivery is made to the LICENSEE's
official Location, further transit risk after first delivery lies
with the LICENSEE. Upon delivery and installation of the LICENSED
SOFTWARE and the Documentation, LICENSEE shall assume risk of loss
and damage to the LICENSED SOFTWARE and the Documentation, and shall
at its sole cost and expense replace any lost or damaged portion
thereof.
14.3
LICENSEE warrants that
it has obtained lawful permission to use all hardware and software
required in order for the LICENSED SOFTWARE to be used on the LICENSEE's
Computer system.
14.4
LICENSEE consents to the public use of its name
as a LICENSEE of the LICENSED SOFTWARE.
14.5
MODIFICATON, This Agreement
may not be modified or amended except by writing which is signed
by authorized representatives of each of the parties.
14.6
No Waiver. The failure
of either party to exercise any right or the waiver by either party
of any breach, shall not prevent a subsequent exercise of such right
or be deemed a waiver of any subsequent breach of the same or any
other terms of this Agreement.
14.7
Force Majeure. Neither
party shall be deemed in default of this Agreement to the extent
that the performance of their obligations or attempts to cure any
breach are delayed or prevented by reason of any act of God, fire,
natural disaster, accident, act of Government, or any other cause
beyond the control of such party, provided that such party gives
the other party written notice thereof promptly.
14.8
Entire Agreement. This Agreement
constitutes the sole and entire agreement of the parties with respect
to the subject matter hereof and supersedes any prior oral or written
promises or agreements. There are no promises, covenants or undertakings
other than those expressly set forth in this Agreement.
14.9
ARBITRATION. Any dispute
relating to the terms interpretation, or performance of this Agreement
shall be resolved through binding Arbitration. The LICENSOR shall
be entitled to nominate an arbitrator to adjudicate upon the disputes
between the parties. The Arbitration shall be conducted in accordance
with the provisions of the Arbitration and Conciliation Act, 1996
or any statutory modifications or re-enactments thereof. The venue
of such arbitration shall be Chennai, India.
14.10
Costs and Legal Fees. In
any legal action or arbitration proceeding brought by LICENSOR on
account of LICENSEE's breach, the latter shall be liable for all
of LICENSOR's litigation expenses including arbitration expenses
and legal fees.
14.11
Exclusive Jurisdiction
and Venue. Any cause or action arising out of or related to this
Agreement, including an action to confirm or challenge or confirm
an Arbitration Award, may only may be brought exclusively before
the courts at Chennai the parties hereby submit to the jurisdiction
and venue of such courts.
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