Exhibit 10.6
SOFTWARE LICENSE AGREEMENT
for
ROOT CAUSE ANALYST
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) ROOT CAUSE ANALYST ("RCA"), A JOINT VENTURE
BETWEEN ACCURATE ASSESSMENTS, INC. ("ACCURATE") AND MEDICAL RISK MANAGEMENT
ASSOCIATES ("MRMA") FOR THE SOFTWARE PRODUCT IDENTIFIED ABOVE, WHICH INCLUDES
COMPUTER SOFTWARE AND MAY INCLUDE ASSOCIATED MEDIA, PRINTED MATERIALS, AND
"ONLINE" OR ELECTRONIC DOCUMENTATION (COLLECTIVELY, "SOFTWARE PRODUCT"). THE
SOFTWARE PRODUCT ALSO INCLUDES ANY UPDATES AND SUPPLEMENTS TO THE ORIGINAL
SOFTWARE PRODUCT PROVIDED TO YOU BY RCA. BY INSTALLING OR USING THE SOFTWARE
PRODUCT OR BY OBTAINING THE SOFTWARE USE AUTHORIZATION CODE FROM ACCURATE, 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 ACCURATE. INSTEAD, PROMPTLY OBTAIN A RETURN
APPROVAL NUMBER FROM ACCURATE, AND RETURN THE SOFTWARE PACKAGE(S) AND THE
ACCOMPANYING ITEMS (INCLUDING ANY WRITTEN MATERIALS OR OTHER PACKAGING) WITHIN
THIRTY (30) DAYS TO ACCURATE FOR A FULL REFUND (AS DESCRIBED MORE FULLY BELOW).
UNLESS OTHERWISE INDICATED IN THIS AGREEMENT, ALL REFERENCES TO "RCA" SHALL BE
DEEMED TO INCLUDE RCA, ACCURATE AND MRMA.
RCA 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
RCA hereby grants to you a personal, non-transferable and non-exclusive
right to use the SOFTWARE PRODUCT. This permits you to use one (1) copy of
the SOFTWARE PRODUCT on a single computer; 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"
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on a computer when it is loaded into temporary memory (i.e., RAM) or
installed into permanent memory (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 RCA.
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 RCA and is protected by United States copyright LAWS. The SOFTWARE
PRODUCT also contains trade secrets and other proprietary materials which
are owned by RCA. 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 Accurate on behalf of RCA 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
RCA 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
RCA 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.
RCA 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
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ACCOMPANYING WRITTEN MATERIALS. RCA DOES NOT WARRANT THAT THE SOFTWARE
PRODUCT WILL MEET YOUR PARTICULAR REQUIREMENTS OR THAT ITS OPERATION WILL
BE ERROR FREE.
IN NO EVENT SHALL RCA, ACCURATE OR MRMA 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 RCA HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, RCA'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.
RCA 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 a
root causes analysis. In no way shall RCA, Accurate, MRMA 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
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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
reports is solely that of the licensee of the SOFTWARE PRODUCT and not of
RCA, Accurate, MRMA or their 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 Accurate on behalf of RCA.
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 Accurate 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.
ACTIVE SOFTWARE SUPPORT SERVICE FEE; TECHNICAL HELPLINE
RCA 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, RCA 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
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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
Without prejudice to any other rights, RCA 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 RCA shall be in addition to any and
all other legal remedies that may be available to RCA.
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. RCA 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 RCA 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
RCA. 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 Accurate on behalf of RCA 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 RCA or Accurate for any reason, please contact either at the following
address: Accurate Assessments, Inc., 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx, XX
00000 (402) 341-8880 or at xxxxxxx@xxxxxxxxxxxxxxxxxxx.xxx.
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