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EXHIBIT 10.5(A)
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT (this "Agreement") is entered into as
of _______, 2001 (the "Effective Date"), by and between InfoCure Corporation, a
Delaware corporation ("Licensor"), and PracticeWorks, Inc., a Delaware
corporation ("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 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, sublicense, publish,
display, export, distribute and copy the Software to any third party.
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 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 the Software
and 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. Assignment. This Agreement will be binding upon and will inure
to the benefit of the Parties, their legal representatives, successors and
assigns.
10. 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.
11. 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.
12. Headings. The headings in this Agreement are for the purpose
of reference only and will not limit or define the meaning hereof.
13. 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.
14. 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.
15. 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.
16. 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.
PRACTICEWORKS, INC. INFOCURE CORPORATION
Signature: Signature:
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Print Name: Print Name:
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Title: Title:
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Address: Address:
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Phone No.: Phone No.:
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Fax No.: Fax No.:
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EXHIBIT A
