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EXHIBIT 10.5(a)
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT (this "Agreement") is entered into as
of March 5, 2001 (the "Effective Date"), by and between InfoCure Corporation, a
Delaware corporation ("Licensor"), and PracticeWorks Systems, LLC, a Georgia
limited liability company ("Licensee"). Licensor and Licensee also may be
referred to individually as "Party" or collectively as "Parties."
1. License. Licensor grants to Licensee, and Licensee accepts, a
nonexclusive, non-transferable, world-wide, royalty-free, perpetual license to
use the source code and object code versions of the software (the "Software")
described in Exhibit A.
2. Use of the Software. Licensee may use, alter, modify, adapt,
create derivative works from, reverse compile, decompile, disassemble, reverse
assemble, reverse engineer, or otherwise translate and copy the Software.
Furthermore, Licensee may sublicense, publish, display, export and distribute
the object code version of the Software to any third party. In no event will
Licensee disclose the source code version of the Software to any third party
without the prior written consent of Licensor.
3. No Obligation to Support or Maintain the Software. Licensor
has no obligation under this Agreement or otherwise to correct any bugs,
defects or errors in the Software, or to otherwise support, maintain, improve,
modify, upgrade, update or enhance the Software. Licensor will not be
responsible for providing assistance to Licensee or its customers in the use of
the Software in any manner whatsoever.
4. Proprietary Rights. As between the Parties, Licensor shall
own and retain all right, title and interest in and to the Software and any
modifications to the Software developed by or for the benefit of Licensor,
including any and all copyrights, patents, trade secret rights, trademarks and
other intellectual property rights therein. Licensee shall own and retain all
right, title and interest in and to any modifications to the Software developed
by or for the benefit of Licensee, including any and all copyrights, patents,
trade secret rights, trademarks and other intellectual property rights therein.
5. Indemnification. Licensee shall indemnify, defend and hold
harmless Licensor, its affiliates and their respective principals, agents,
employees, officers, directors and subcontractors (collectively, the
"Indemnified Parties") from and against any and all loss, claims, damage or
liabilities (or actions in respect thereof that may be assessed by any third
party) that may result from or arise out of any third party claims arising out
of or relating in any way to the Software, including without limitation any
allegation that the Software infringes upon the intellectual property or
proprietary rights of any third party. Licensee will reimburse the Indemnified
Parties for all expenses (including attorneys' fees) incurred by the
Indemnified Parties in connection with such action or claim. In addition, if
any of the Indemnified Parties becomes involved, other than as a party, in any
litigation or similar proceeding brought by or against Licensee which arises
out of or relates in any way to the Software in this or any other agreement,
Licensee agrees to reimburse the Indemnified Parties for all costs incurred by
such Indemnified Parties (including the time of its professional personnel,
rates and attorneys' fees) in connection with such litigation or proceeding,
even if the litigation or proceeding arises from or is a result of the sole or
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concurrent negligence, fault, conduct and other acts or omissions of any nature
of the Indemnified Parties.
6. Confidentiality.
6.1 It may be necessary to provide access to
confidential and/or proprietary information to each other pursuant to
this Agreement ("Proprietary Information"). Proprietary Information
includes the Software and such other information as is clearly
identified or labeled as such by the disclosing party at the time of
disclosure. Each party will protect the confidentiality of the
Proprietary Information in the same manner as it protects its own
proprietary information of like kind. The parties shall return all
Proprietary Information of the other upon the earlier of a request by
the disclosing party or upon termination of this Agreement.
6.2 Neither party shall reproduce, disclose or use
Proprietary Information except as permitted by the disclosing party.
The limitations on reproduction, disclosure, or use of Proprietary
Information shall not apply to, and neither party shall be liable for,
reproduction, disclosure, or use of Proprietary Information of the
other if (A) prior to the receipt under this Agreement, the
information was developed independently by the party receiving it, or
was lawfully received from other sources without an obligation of
confidence; or (B) subsequent to the receipt under this Agreement: (i)
the information is published or otherwise disclosed to others by the
disclosing party with out restriction, (ii) it has been lawfully
obtained by the party receiving it from other sources, (iii) it
otherwise comes within the public knowledge or becomes generally known
to the public without breach of this Agreement, or (iv) it is
independently developed by the party receiving it.
6.3 The provisions of this Article VI shall survive
termination of this Agreement.
7. Disclaimers. THE SOFTWARE IS LICENSED "AS IS" WITHOUT ANY
WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
LICENSOR HEREBY DISCLAIMS ALL WARRANTIES REGARDING THE SOFTWARE, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY
WARRANTIES AS TO THE CONDITION, QUALITY, DURABILITY AND PERFORMANCE OF THE
SOFTWARE, AND ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability. In no event shall Licensor be liable
to Licensee for any indirect, incidental, consequential, special, punitive or
exemplary damages of any kind (including lost revenues or profits, loss of
business or loss of data) in any way related to this agreement or use of the
Software whether in contract, tort or otherwise, regardless of whether such
damages were foreseeable or known by the parties. The cumulative liability of
Licensor to Licensee for all claims for direct damages relating to or arising
out of the Software or this Agreement shall not exceed ten thousand dollars
($10,000.00). The limitation upon damages and claims is intended to apply
without regard to whether other provisions of this Agreement have proven
ineffective.
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9. Bankruptcy. In the event Licensor voluntarily or
involuntarily becomes subject to the United States Bankruptcy Code, Licensee
shall be entitled to all of the benefits of the Bankruptcy Code, as amended,
including the protections of Section 365(b). If Licensor or its trustee in
bankruptcy rejects this Agreement under Section 365(n) of the United States
Bankruptcy Code, Licensee may elect to (i) treat this Agreement as terminated,
or (ii) retain its rights under this Agreement including the right to exercise
its rights in and to the Software. Failure by Licensee to assert its right to
retain its benefits to the intellectual property embedded in the Software
pursuant to Section 365(n)(1)(B) of the Bankruptcy Code under an executory
contract rejected by the trustee in bankruptcy will not be construed as a
termination of this Agreement by Licensee under Section 365(n)(1)(A) of the
Bankruptcy Code.
10. Assignment.
10.1 This Agreement will be binding upon and will inure
to the benefit of the Parties, their legal representatives, successors
and assigns.
10.2 Notwithstanding Section 10.1 above, (i) in
connection with the closing of the transactions contemplated by the
Loan Agreement dated as of March 5, 2001 (as amended, modified,
supplemented or restated from time to time, the "PracticeWorks Loan
Agreement") by and between PracticeWorks, Inc. ("PracticeWorks") and
FINOVA Capital Corporation (together with its successors and assigns,
"FINOVA"), Licensee agrees that it shall assign this Agreement and its
rights, interests and benefits hereunder to FINOVA pursuant to, among
other things, the Collateral Assignment of Distribution Transaction
Documents dated the date of the PracticeWorks Loan Agreement executed
by PracticeWorks in favor of FINOVA, whereupon FINOVA shall be
permitted to exercise any remedy, claim of action or other right
afforded to Licensee hereunder and (ii) in connection with the closing
of the transactions contemplated by the Second Amendment to Loan
Agreement and Other Loan Documents dated as of March 5, 2001 (as
amended, modified, supplemented or restated from time to time, the
"InfoCure Loan Agreement") by and between Licensor and FINOVA,
Licensor agrees that it shall assign this Agreement and its rights,
interests and benefits hereunder to FINOVA pursuant to, among other
things, the Collateral Assignment of Distribution Transaction
Documents dated the date of the InfoCure Loan Agreement executed by
Licensor in favor of FINOVA, whereupon FINOVA shall be permitted to
exercise any remedy, claim of action or other right afforded to
Licensor hereunder.
11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia without regard to
its conflicts of laws principles.
12. Amendments. No modification, amendment or change hereof will
be effective or binding on any Party unless set forth in writing, duly executed
by the Parties.
13. Headings. The headings in this Agreement are for the purpose
of reference only and will not limit or define the meaning hereof.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be an original but all of which will
constitute one instrument.
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15. No Waiver. Failure by either Party to enforce any rights
under this Agreement shall not be construed as a waiver of such rights, nor
shall a waiver by either Party in one or more instances be construed as
constituting a continuing waiver or as a waiver of other instances.
16. Severability. In the event that any of the terms of this
Agreement are currently, become in the future, or are declared to be invalid or
void by any court or tribunal of competent jurisdiction, such term or terms
shall be null and void and shall be deemed severed from this Agreement and all
the remaining terms of this Agreement shall remain in full force and effect.
17. Entire Agreement. This agreement, including all exhibits
attached hereto, constitutes the entire agreement of the parties relating to
the subject matter hereof and supersedes any prior agreements and
understandings, whether oral or written, between the parties relating to the
same subject matter as of the effective date of this agreement. The parties,
intending to be legally bound, have executed this agreement. the signers
represent that they have full authority to execute this agreement on behalf of
the parties, and that they have read and understand all of its terms and
provisions.
[signature page follows]
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PRACTICEWORKS SYSTEMS LLC INFOCURE CORPORATION
Signature: /s/ Xxxxx X. Xxxxx Signature: /s/ Xxxxxxxxx X. Fine
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Xxxxx X. Xxxxx Xxxxxxxxx X. Fine
President President and Chief
Executive Officer
Address: Address:
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Phone No.: Phone No.:
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Fax No.: Fax No.:
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