Exhibit 10.8
SOFTWARE LICENSE AGREEMENT
for
ORION BEHAVIORAL HEALTH SYSTEM
IMPORTANT--READ CAREFULLY BEFORE USING THE SOFTWARE: THIS SOFTWARE LICENSE
AGREEMENT (THIS "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN
INDIVIDUAL OR A SINGLE ENTITY) AND ORION HEALTHCARE TECHNOLOGY, INC. ("ORION")
FOR THE SOFTWARE PRODUCT IDENTIFIED ABOVE, WHICH INCLUDES COMPUTER SOFTWARE AND
MAY INCLUDE ASSOCIATED MEDIA, PRINTED MATERIALS, AND "ONLINE" OR ELECTRONIC
DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE PRODUCT"). THE SOFTWARE PRODUCT ALSO
INCLUDES ANY UPDATES AND SUPPLEMENTS TO THE ORIGINAL SOFTWARE PRODUCT PROVIDED
TO YOU BY ORION. BY INSTALLING OR USING THE SOFTWARE PRODUCT OR BY OBTAINING THE
SOFTWARE USE AUTHORIZATION CODE FROM ORION, YOU ARE AGREEING TO BE LEGALLY BOUND
BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT
INSTALL OR USE THE SOFTWARE PRODUCT OR OBTAIN THE SOFTWARE USE AUTHORIZATION
CODE FROM ORION. INSTEAD, PROMPTLY OBTAIN A RETURN APPROVAL NUMBER FROM ORION,
AND RETURN THE SOFTWARE PACKAGE(S) AND THE ACCOMPANYING ITEMS (INCLUDING ANY
WRITTEN MATERIALS OR OTHER PACKAGING) WITHIN THIRTY (30) DAYS TO ORION FOR A
FULL REFUND (AS DESCRIBED MORE FULLY BELOW).
ORION RETAINS ALL THE INTELLECTUAL PROPERTY IN THE SOFTWARE PRODUCT; YOU ARE
ACQUIRING A NON-EXCLUSIVE LICENSE TO USE THE SOFTWARE PRODUCT ON ONLY THE NUMBER
OF COMPUTERS FOR WHICH YOU HAVE PURCHASED A SEPARATE LICENSE, AS SET OUT MORE
FULLY BELOW.
SOFTWARE PRODUCT LICENSE
The Software Product is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. The Software
Product is licensed, not sold.
PERMITTED USE/GRANT OF LICENSE
Orion hereby grants to you a personal, non-transferable and non-exclusive
right to use the Software Product. You have purchased ________ separate
licenses for the Software Product. This permits you to use one (1) copy of
the Software Product on each of ________ computer(s); if you wish to use
the Software Product on additional computers you must obtain a separate
license for each such computer. The Software Product shall be in "use" on a
computer when it is loaded into temporary memory (i.e., RAM) or installed
into permanent memory
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(e.g., hard drive, CD-ROM, or other storage device) of that computer.
Installation on a network server for the sole purpose of internal
distribution shall not constitute "use" for which a separate license is
required, PROVIDED you have a separate license for each computer to which
the Software Product is distributed. NETWORKS AND ANY AND ALL COMPUTER
WORKSTATIONS REQUIRE SEPARATE LICENSES.
RESERVATION OF RIGHTS.
All rights not expressly granted are reserved by Orion.
COPYRIGHT/RESTRICTIONS ON USE
The Software Product (including the written materials, questions, images,
icons and text incorporated into and/or accompanying the software) is owned
by Orion and is protected by United States copyright laws. The Software
Product also contains trade secrets and other proprietary materials which
are owned by Orion. You agree that you will NOT (1) copy the Software
Product; (2) copy any of the written materials for any purpose; (3) modify,
rent, lease, loan, create derivative works based upon, copy or distribute
the Software Product in whole or in part; (4) export or grant a sub-license
of the Software Product or the license contained herein to any other party
unless authorized by Orion on behalf of Orion in writing; (5) allow the
Software Product to be used on more than the number of computer
workstations for which licenses have been purchased; and (6) reverse
engineer, decompile, or disassemble the Software Product.
OWNERSHIP
Orion is the owner of all intellectual property rights in the Software
Product, related written materials, logos and names, and all other related
materials which accompany the Software Product. No title to the
intellectual property in the above-described software or materials is
transferred to you by this Agreement.
LIMITED WARRANTY
Orion warrants that the Software Product will perform substantially in
accordance with the accompanying written materials for one (1) year from
the date of receipt of the Software Product by you.
ORION DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, WITH REGARD TO THE SOFTWARE PRODUCT AND THE
ACCOMPANYING WRITTEN MATERIALS. ORION DOES NOT WARRANT THAT THE SOFTWARE
PRODUCT WILL MEET YOUR PARTICULAR REQUIREMENTS OR THAT ITS OPERATION WILL
BE ERROR FREE.
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IN NO EVENT SHALL ORION BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES FOR
LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR
INABILITY TO USE THE SOFTWARE PRODUCT, EVEN IF ORION HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ORION'S ENTIRE LIABILITY
UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT
ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT. THE LIMITATIONS AND
EXCLUSIONS STATED HEREIN SHALL SURVIVE A BREACH OF THIS AGREEMENT.
Orion is not responsible for any problems that may occur as a result of any
incompatibility between the Software Product and any other software or
hardware.
Some states/jurisdictions do not allow the exclusion of implied warranties,
nor the exclusion or limitation of liability for consequential or
incidental damages. THEREFORE, THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT
APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION
TO THIRTY (30) DAYS FROM THE DATE OF RECEIPT OF THE SOFTWARE PRODUCT.
ADDITIONAL DISCLAIMERS
[The Software Product is licensed to you solely as a tool for performing
certain tasks. In no way shall Orion or any of their respective agents,
employees, successors or assigns be liable for damages from the use of or
reliance upon conclusions drawn from the use (proper, negligent or other
use) of the Software Product or the data entered or reports generated
therefrom.]
[Although the Software Product includes introductory material regarding
root cause analysis procedures, further education or guidance should be
sought prior to reliance on the reports generated by the Software Product
or any conclusions you may draw from such reports or from the data you have
input into the Software Product to generate such reports. Root cause
analysis, as contemplated by use of the Software Product, is a procedure of
analysis specific to the medical profession and should not be utilized in
any context without proper medical consultation and supplementary education
and consultation and in no event should be utilized outside the context of
the medical profession. Furthermore, neither the reports generated by the
Software Product nor the conclusions you may draw from such reports should
be used or relied upon other than with proper consultation with legal or
risk management professionals. All risk arising out of any use of or
reliance upon the reports generated by the Software Product or any
conclusions you may draw from such reports or the data you have input
to generate such
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reports is solely that of the licensee of the Software Product and not
of Orion or its respective agents, employees, successors or assigns.]
RETURN APPROVAL NUMBER; SOFTWARE USE AUTHORIZATION CODE
If, within thirty (30) days from the postmark date the Software Product is
shipped, you desire to return the Software Product for a refund, you will
need to obtain a RETURN APPROVAL NUMBER from Orion on behalf of Orion.
Software Product returned without a RETURN APPROVAL NUMBER written on the
outside of the return envelope will not be accepted for refund.
Additionally, no refund of Software Product will be given to anyone who has
been given a SOFTWARE USE AUTHORIZATION CODE (as described below) for use
of the Software Product.
In order to use the Software Product you will have to contact Orion to
obtain a SOFTWARE USE AUTHORIZATION CODE. In obtaining the SOFTWARE USE
AUTHORIZATION CODE you agree to be bound by the terms of this Agreement.
The SOFTWARE USE AUTHORIZATION CODE for use of the Software Product is for
one (1) license, and is limited to use on one (1) personal computer.
Individual licenses must be purchased for additional personal computers.
Once a SOFTWARE USE AUTHORIZATION CODE is given, no RETURN APPROVAL NUMBER
will be made available, and the provisions for a thirty (30) day return for
refund shall be null and void.
ANNUAL ACTIVE SOFTWARE SUPPORT SERVICE FEE; TECHNICAL HELPLINE
Orion shall provide active software support services which may include
online training services, online discussion user groups, 24-hour technical
support via the internet, a telephone helpline (as more fully described
below), the ability to download the latest features and upgrades of the
Software Product directly from the Web and the ability to transfer the
Software Product once annually from one computer to another. All of these
services will be provided to you for no charge for one (1) year from the
date of your purchase of the Software Product. Thereafter, you will be
billed for these services annually on the anniversary date of your purchase
of the Software Product at a rate equal to, as of January 1, 2001, $199.
Such rate may be subject to an annual increase of no more than 10%.
As part of the active software support services provided to you described
above, Orion shall provide a nine-hour (8:00 a.m. to 5:00 p.m. CST), Monday
through Friday, helpline staffed by experienced technical personnel
designed to handle technical operations issues. You may contact the
helpline with your technical operations questions at (000) 000-0000. For
further information concerning the technical helpline, please see the
additional materials provided with the Software Product.
TERMINATION
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Without prejudice to any other rights, Orion may terminate this Agreement
if you fail to comply with the terms and conditions of this Agreement. In
such event, you must destroy all copies of the Software Product and all of
its component parts. Such termination by Orion shall be in addition to any
and all other legal remedies that may be available to Orion.
BACKUP COPY
You may make one backup version of the installed and authorized Software
Product solely for backup of a network system. In some cases, however,
successful restoration or reinstallation of the Software Product following
a hardware malfunction will require obtaining a SOFTWARE USE AUTHORIZATION
CODE to reauthorize your use of the Software Product. Orion reserves the
right not to provide such a code to reauthorize your use of the Software
Product in the event you have not subscribed to and paid for the annual
active software support service fee described above.
MISCELLANEOUS
This Agreement is the entire agreement between you and Orion concerning
your license to use the Software Product and related materials. This
Agreement supersedes all prior agreements, whether oral or written,
regarding this subject matter. No amendment to or modification of this
Agreement shall be binding unless in writing and signed by duly authorized
representative of Orion. This Agreement shall be governed by the laws of
the State of Nebraska.
[A portion of the Software Product uses and relies upon allCLEAR,
copyrighted software duly licensed by Orion on behalf of Orion by SPSS Inc.
The terms of this Agreement also shall be deemed to run to the benefit of
SPSS Inc. with respect to allCLEAR, as incorporated in the Software
Product.]
Should you have any questions concerning this Agreement, or if you desire to
contact Orion for any reason, please contact either at the following address:
Orion Healthcare Technology, Inc., 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx, XX
00000 (402) 341-8880 or at [Xxxxxxxxx@Xxxxx.xxx].
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