Read the following agreement carefully before downloading, installing or using the iCARE Optometric Practice Management Software (“Software”) on any computer. This site license agreement (“Agreement”) is between you and Bryware (“Company”). For the purpose of this agreement, the term “you’ and “your” means you as an individual. If you do not agree with the terms and conditions do not use the software. By downloading, installing or using the software in any way, you are indicating your complete understanding and acceptance of the terms of this agreement.
WHEREAS, Licensor has developed certain computer programs, related documentation and training materials (the "Products") and desires to grant Licensee a site license to use the Software.
WHEREAS, Licensee wishes to use the Software under the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, Licensee and Licensor hereby agree as follows:
The following definitions shall apply to this Agreement:
"Software" means the computer programs and documentation as provided by the licensor comprising the iCARE Optometric Practice Management computer program system.
"Install" means placing the Software on a computer's hard disk, CD-ROM or other secondary storage device.
"Derivative Works" means a work that is based upon one or more preexisting works, such as a revision, modification, translation, abridgment, condensation, expansion or any other form in which such a preexisting work may be recast, transformed or adapted, and that, if prepared without authorization by the owner of the preexisting work, would constitute copyright infringement.
"Use" means (i) loading and/or executing the Software on any computer at the site of the licensee, and (ii) copying the Software for archival or emergency restart purposes.
2. SOFTWARE LICENSE DURATION OF LICENSE
This License is effective when executed by both parties and will last for a term of one (1) year. Thereafter, this License shall automatically be renewed Licensor for successive one (1) year terms unless Licensee gives Licensor written notice at least thirty (30) days before the day on which the license or renewal would expire of its intention not to renew this License.
TYPE OF LICENSE
Licensor hereby grants to Licensee a nonexclusive site license to install and use the Software on any computer located in a single office setting, provided such computers cannot be accessed from outside the site by a telecommunications network or otherwise.
3. LICENSE FEE
As consideration for the site license to use the Software System granted to Licensee herein, Licensee shall pay to Licensor the total sum of three hundred sixty dollars ($360.00 CAD) for the renewal of the site license for the period of one (1) year from the renewal date.
4. LICENSEE’S RIGHTS AND OBLIGATIONS
Licensee may either:
A. Make one copy of the Software solely for backup or archival purposes, or
B. Transfer the Software to a single hard disk, provided Licensee keep the original solely for backup or archival purposes.
The Software and Documentation are protected by Canadian copyright laws and international treaties. Licensee must treat the Software and Documentation like any other copyrighted material – for example a book. Licensee may not:
A. Copy the Documentation
B. Copy the Software except to make archival or backup copies as provided above
C. Modify or adapt the Software or merge it into another program
D. Reverse engineer, disassemble, decompile or make any attempt to discover the source code of the Software
E. Place the Software onto a server so that it is accessible via a public network such as the Internet
F. Sublicense, rent, lease, sell or lend any portion of the Software or Documentation.
5. LIMITED WARRANTY
Licensor warrants that for a period of thirty (90) of days after delivery of the Software to Licensee:
A. The physical media on which this copy of the Software is distributed will be free from defects in materials and workmanship under normal use, and
B. The Software will perform in substantial accordance with the Documentation.
To the extent permitted by law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND LICENSOR DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, regardless
of whether Licensor knows or had reason to know of Licensee particular needs. No employee, agent, or distributor of Licensor is authorized to modify this warranty, nor to make any additional warranties.
6. LIMITED REMEDY
Licensor entire liability and Licensee exclusive remedy shall be:
A. The replacement of any CD-ROM(s) or other media not meeting the Limited Warranty which is returned to Licensor or
B. If Licensor is unable to deliver a replacement CD-ROM(s) or other media that is free of defects in materials or workmanship, Licensee may terminate this Agreement by returning the Software and Documentation and Licensee’s money will be refunded.
IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OR THE INABILITY TO USE THE SOFTWARE OR FOR ANY CLAIM BY ANY OTHER PARTY.
7. REPRESENTATIONS AND WARRANTIES
Licensor hereby represents and warrants to Licensee that:
A. Licensor is the owner of all right, title and interest, including copyright, in all the Licensed Materials, or has the authority to enter into this Agreement on behalf of the owner.
B. Licensor has not granted any rights or licenses to the Licensed Materials that would conflict with Licensor's obligations under this Agreement.
C. Licensor is fully aware of Licensee's business requirements and intended uses for the Software and the Software shall satisfy such requirements and is fit for such intended uses.
D. Licensor will not enter into any agreement with any third party which would affect Licensee's rights under this Agreement, or bind Licensee to any third party, without Licensee's prior written consent.
E. Licensee's use of the Licensed Materials as authorized by this Agreement will not infringe any existing copyright, trade secret, patent or trademark rights of any third party.
Licensor shall have the right to immediately terminate this License if Licensee fails to perform any obligation required of Licensee under this Agreement or if Licensee becomes bankrupt or insolvent. This License Agreement takes effect upon Licensee’s use of the software and remains effective until terminated. Licensee may terminate this license at any time by written notice of his/her intention not to renew this License at least thirty (30) days before the day on which the license or renewal would expire. This License will also automatically terminate if Licensee fails to comply with any term or condition of this License Agreement.
9. LOSS OF SUPPORT AND UPDATES UPON TERMINATION
Upon termination of this License, Licensee will no longer be eligible to receive technical support or software updates.
10. TITLE TO SOFTWARE
Licensor retains title to and ownership of the Software. Licensor also retains title to and ownership of all enhancements, modifications and updates for which the licensor has a physical copy (CD-ROM(s) or other media) up to and including the date of termination of this license agreement.
11. MODIFICATION AND ENHANCEMENTS
Licensee will make no efforts to reverse engineer the Software, or make any modifications or enhancements without Licensor's express written consent.
12. THE SOFTWARE
The Software shall consist of the modules or components, shall perform the functions, and shall comply with the proposals and specifications, identified by Licensor.
The Documentation shall consist of all operator and user manuals, training materials, guides, listings, specifications, and other materials for use in conjunction with the Software. Licensor shall deliver to Licensee one (1) complete copy of the Documentation. Licensee shall have the right, as part of the license granted herein, to make as many additional copies of the Documentation for its own use as it may determine.
14. SOURCE CODE
The Software distributed shall NOT include its Source Code form (the "Source Code"), or any relevant explanations and documentation of the Source Code (collectively, "Commentary").
15. OPERATING ENVIRONMENT
The Licensee will be responsible for all or any part of the operating environment on which software is installed. Should the software not function correctly on the combination of computer equipment (``Hardware``) the programming language and the operating system the Licensee shall apply any required changes to the operating environment to allow the software to function correctly.
Within fifteen (15) days of the execution of this Agreement by Licensor, and upon no less than fifteen (15) days' prior notice to Licensee, Licensor shall deliver and/or forward to Licensee's premises a copy of the Software together with a complete copy of the Documentation. Upon at least fifteen (15) days' notice to Licensor, Licensee may postpone the delivery of the Software System to a mutually agreed-upon date no more than fifteen (15) days thereafter. Licensor shall bear all freight, shipping and handling costs for such delivery of the Software System and all risk of loss, including any insurance costs.
17. SOFTWARE INSTALLATION AND ACCEPTANCE
The Licensee shall install the Software on the Hardware at the site of the License. Should it be deemed necessary, Licensor shall provide full support of the Software to resolve any problems the Licensee may encounter during the installation process to ensure a successful installation.
18. MULTIPLE USE OPTION
Licensee shall have the option of this site license to include use of the Software on more than a single CPU located on the Licensee site specified in this agreement. To include use of the software at a second or any other site will require a separate agreement.
The License Fee includes all costs for the training of Licensee and/or representative on the use and operation of the Software, including instruction in any necessary conversion of Licensee's data for such use. Pursuant to a mutually agreed upon schedule, Licensor shall provide sufficient experienced and qualified personnel to provide training for personnel of Licensee at a location designated by Licensee. Training will be supported by written documentation, instructional videos and access to a web site.
20. SOFTWARE MAINTENANCE
A. During the warranty period, Licensor shall promptly notify Licensee of any defects or malfunctions in the Software or Documentation of which it learns from any source. Licensor shall promptly correct any defects or malfunctions in the Software or Documentation discovered during such warranty period and provide Licensee with corrected copies of same, without additional charge. Licensor's obligation hereunder shall not affect any other liability which it may have to Licensee.
B. Licensor shall provide to Licensee, without additional charge, copies of the Software System and Documentation revised to reflect any enhancements to the Software System made by Licensor during the warranty period. Such enhancements shall include all modifications to the Software System which increase the speed, efficiency or ease of operation of the Software System, or add additional capabilities to or otherwise improve the functions of the Software System.
21. ADDITIONAL SUPPORT
During the warranty period and thereafter, Licensor shall provide to Licensee, without additional charge, all reasonably necessary telephone or written consultation requested by Licensee in connection with its use and operation of the Software System or any problems therewith. Telephone consultation shall be requested and provided only during Licensor's normal business hours and Licensee shall pay all long distance telephone charges in connection therewith.
Each party agrees that it shall not disclose to any third party any information concerning the customers, trade secrets, methods, processes or procedures or any other confidential, financial or business information of the other party which it learns during the course of its performance of this Agreement, without the prior written consent of such other party. This obligation shall survive the cancellation or other termination of this Agreement.
The Software contains trade secrets and proprietary know-how that belong to us and it is being made available to Licensee in strict confidence.
ANY USE OR DISCLOSURE OF THE SOFTWARE, OR OF ITS ALGORITHMS, PROTOCALS OR INTERFACES, OTHER THAN IN STRICT ACCORDANCE WITH THIS LICENSE AGREEMENT, MAY BE ACTIONABLE AS A VIOLATION OF OUR TRADE SECRET RIGHTS.
Licensor shall not refer to the existence of this Agreement in any press release, advertising or materials distributed to prospective customers, without the prior written consent of Licensee.
24. LICENSOR'S PROPRIETARY NOTICES
Licensee agrees that any copies of the Software or Documentation which it makes pursuant to this Agreement shall bear all copyright, trademark and other proprietary notices included therein by Licensor and, except as expressly authorized herein, Licensee shall not distribute same to any third party without Licensor's prior written consent. Notwithstanding the preceding sentence, Licensee may add its own copyright or other proprietary notice to any copy of the Software or Documentation which contains modifications to which Licensee has ownership rights pursuant to this Agreement.
25. MOST FAVORED CUSTOMER
Licensor agrees to treat Licensee as its most favored customer. Licensor represents that all of the prices, warranties, benefits and other terms being provided hereunder are equivalent to or better than the terms being offered by Licensor to its current customers. If, during the warranty period, Licensor enters into an agreement with any other customer providing such customer with more favorable terms, then this Agreement shall be deemed appropriately amended to provide such terms to Licensee. Licensor shall promptly provide Licensee with any refund or credits thereby created.
26. LIMITATION OF LIABILITY
In no event will the company, its employees, officers, directors, agents, affiliates or licensors be liable for any incidental, indirect, special consequential or punitive damages, or any damages whatsoever (including, without limitation, damages for injury to person or property, for loss of profits, business interruption, loss of business information, loss of privacy, failure to meet any duty and negligence) arising out of or in any way related to the use or inability to use the software, even if the company has been advised of the possibility of such damages. In no event will the liability of the company for damages with respect to the software exceed the amount actually paid by you for the software regardless of the form of the claim.
27. COMPLETE AGREEMENT
This Agreement sets forth the entire understanding of the parties as to its subject matter and may not be modified except in a writing executed by both parties.