EHS, INC. EHS MASTER LICENSE AGREEMENT

Transcription

1 EHS, INC. EHS MASTER LICENSE AGREEMENT This EHS Master License Agreement ( Agreement ), between EHS, Inc. an Alabama corporation with its principal address at One Metroplex Drive, Suite 500, Birmingham, AL and Lincoln Lancaster County Public Health., ( Licensee ) with its principal address at 440 South 8 th Street, Lincoln, NE 68508, effective on September 15th, 2008 ( Effective Date ) sets forth the terms and conditions under which the parties agree that Licensee may pursuant to the Software Investment Summary, obtain licenses to use EHS proprietary software ( Software ), the associated user documentation ( Documentation ), and/or purchase the services listed on the relevant Schedule. This Agreement shall consist of this Agreement and the Software Investment Summary. This Agreement is effective only upon full execution by both parties. By signing below, each party agrees to the terms of this Agreement. Any executed copy of this Agreement made by reliable means (e.g., photocopy or facsimile) is considered an original. 1. LICENSE GRANT AND RIGHT OF USE. a. Definitions: Documentation means the user guides, reference manuals, installation materials and other written materials provided by EHS to Licensee and related to the Software. Software means the object code versions of the EHS Software, including any third party software imbedded in the Software, identified on the Software Investment Summary, together with all subsequent EHS-authorized updates, replacements, modifications or enhancements provided by EHS to Licensee under Maintenance. b. EHS grants to Licensee a non-exclusive and non-transferable license to install and use the number of copies of the object code version of the Software pursuant to the terms and conditions herein and in the fully executed Software Investment Summary attached hereto. Provided that Licensee pays all fees and expenses as defined herein and in the attached Software Investment Summary, Licensee shall be granted continued use of the Software as defined in this Agreement. Each EHS Software Client license is restricted to users authorized by the Licensee under the terms of this Agreement to access the EHS Software Server solely for the internal business use of Licensee. Each EHS Software Named User Client license is further restricted to use by the individual in whose name the license is authorized but Licensee may disable a Named User Client license in favor or enabling a new Named User Client license for a different employee. c. Licensee shall not (and shall not permit any employee or other third party to) copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Software or any trade secret information or process contained in the Software. Any third party software imbedded in the Software may be used only in conjunction with the Software and may not be used separately. d. Licensee shall not alter or remove any notices, graphics or text contained on or in the Software or the Documentation; or modifies the Software in any form, without the express written permission from EHS. e. Licensee may keep a reasonable number of copies of the Software, solely for back-up or archival purposes. Licensee may copy the Documentation, as needed, for Licensee s use EHS MASTER LICENSE AGREEMENT GENERAL TERMS AND CONDITIONS as specified in this Agreement and the Software Investment Summary hereto. f. Licensee may not rent or lease the Software to others not bound by this Agreement. g. Licensee s rights in the Software will be limited to those expressly granted in this Agreement. EHS and/or Manufacturer retain exclusive rights to all tables, forms, templates or other works developed or created by EHS or Licensee under this Agreement. Licensee shall retain exclusive rights to its specific financial data and uniquely identifiable patient data. EHS reserves all rights and licenses in and to the Software not expressly granted to Licensee under this Agreement. 2. FEES a. Licensee shall pay EHS the license fees and the Maintenance fees for the Software specified on the applicable attached Schedule within 30 calendar days after receipt of EHS invoice. All license fees paid hereunder are nonrefundable, except as provided in Section 6.a. below. b. Licensee shall pay any other fees and prices specified on a Schedule within 30 days after receipt of EHS applicable invoice. Licensee shall be subject to payment of a late fee of one-and-one-half percent (1.5%) per month or part thereof, if not paid within 30 calendar days from the due date. If Licensee has not paid all or a portion of an invoice within 30 calendar days, EHS shall provide written notice to Licensee that it has breached the Agreement and Licensee shall have 30 calendar days after notice to cure the breach. In the event of non-payment of an invoice after the cure period, EHS may, in addition to other rights and remedies under this Agreement and in law, suspend any or all services and terminate this Agreement, in whole or in part, without additional notice to the Licensee. If EHS is required to bring legal action for recovery of any amounts due hereunder, Licensee agrees to be responsible for the payment of reasonable attorney's fees and costs incurred by EHS. c. All prices and fees are in U.S. dollars unless otherwise specified. All amounts payable under this Agreement are exclusive of all sales, use, value-added, excise, property, withholding, and other taxes and duties. Licensee will pay all taxes and duties assessed by any authority in connection with this Agreement and with Licensee s performance hereunder. Licensee will promptly reimburse EHS for any and all taxes or duties that EHS may be required to pay in connection with this Agreement or its performance. This provision does not apply to Page 1 of 5

2 franchise taxes, taxes based on EHS income, or any taxes for which Licensee is exempt, provided Licensee has furnished EHS with a valid tax exemption certificate. d. Prices are exclusive of freight and installation charges unless expressly specified. EHS may change prices for products and services provided by a supplier other than EHS without notice to Licensee. EHS may increase other prices charged from EHS to Licensee with a ninety (90) day written notice provided that any prepaid contracted services are not affected thereby and that any such increase will not exceed on a cumulative basis the greater of a) six (6) percent annually or b) the percentage change in the Consumer Price Index (CPI) since the last increase. 3. MAINTENANCE, SUPPORT AND OTHER SERVICES a. Provided Licensee pays all applicable Maintenance and Support fees, EHS shall provide Licensee with the following Maintenance and Support services, for the then current and one prior version of the Software, for the period commencing on the date EHS delivers the relevant Software to Licensee through the period ending one anniversary year thereafter (the Initial Maintenance and Support Period ): i. Updates to the Software. An Update shall mean a subsequent release of the Software that EHS makes generally available to its current Maintenance Licensees for the Software licensed by Licensee. Updates include changes and corrections to the Software as are required to keep the Software in substantial conformance with the applicable Documentation and that are created by EHS as corrections for defects in the Software. Updates shall not include any release, option or future product that EHS licenses separately; and i iv. Web-based support, consisting of information on the most current release of the Software through EHS web site; and Phone Support in the form of advice and counsel via telephone regarding Licensee s use of the Software. Unless otherwise specified on the relevant Schedule, Phone Support shall be provided from 7:00 AM to 6:00 PM (Central Time), Monday through Friday, exclusive of holidays observed by EHS; and Phone support 24 hours a day 7 days a week for critical issues related to the operation of the Software. b. Upon expiration of the Initial Maintenance and Support Period, Maintenance and Support shall automatically renew for successive annual periods (each an Annual Maintenance and Support Period ), provided (i) EHS continues to offer Maintenance and Support to its general Licensee base; (ii) Licensee pays the Maintenance and Support fees applicable for the relevant Annual Maintenance and Support Period; and (iii) Licensee does not terminate Maintenance and Support by providing EHS with at least 30 days written notice prior to the expiration of the applicable Initial or Annual Maintenance and Support Period. Fees for Software maintenance and support periods shall be based on the then current EHS price list for Maintenance and Support services. c. Licensee agrees to provide EHS with all information and materials requested by EHS for use in replicating, diagnosing and correcting an error or other Software problem reported by Licensee. Licensee acknowledges that all Updates provided by EHS will be cumulative in nature, and therefore Licensee agrees to install all Updates provided by EHS. Licensee further acknowledges that EHS ability to provide satisfactory Maintenance and Support is dependent on Licensee (i) installing all Updates; (ii) providing EHS with the information necessary to replicate Software problems; (iii) using only EHS approved products and maintaining the correct operating environment in accordance with any specified requirements; (iv) designating a single service contact per location; and (v) allowing EHS internet access, pursuant to EHS specifications, to Licensee s computer system and necessary data. d. EHS shall provide consulting and training services (each a Work Order or Purchase Schedule ), under the terms of this Agreement, agreed to by the parties and specified on one or more separately executed Work Order or Purchase Schedules. As agreed by the parties, consulting and training services may be performed at EHS offices or on-site at Licensee s location. In the event of any conflict between this Agreement and a Work Order, the provisions of the Work Order shall prevail. All Work Orders shall be billed on a time and materials basis at EHS then-current consulting rates unless otherwise specified on a Schedule. EHS shall have the right to use third parties in performance of Work Orders hereunder and, for purposes of this Agreement, all references to EHS or its employees shall be deemed to include such third parties. Licensee shall provide EHS access to its equipment, systems and other facilities to the extent reasonably required by EHS for the performance of Work Orders hereunder. For any on-site services requested by Licensee, Licensee agrees to reimburse EHS for its actual, reasonable travel and other out-of-pocket expenses incurred in connection therewith. e. Through EHS University, EHS on-line training and certification center, EHS shall provide a training curriculum and training services for Licensee s employees based on each employee s role and Software modules licensed by Licensee. Prior to use of the Software, Licensee shall insure that all of Licensee s employees have satisfactorily completed all required training classes. As Licensee adds additional employees, Licensee shall insure that each new employee satisfactorily completes all required training classes for their job function prior to use of the Software. EHS shall not be obligated to perform Support Services for any individual (s) that have not satisfactorily completed all required training classes. 4. CONFIDENTIALITY a. Any business, operational or technical information provided to Licensee by EHS hereunder that is marked or otherwise identified as confidential or proprietary, or that Licensee knows or should know is confidential or proprietary, the Software and other deliverables furnished by EHS (including, but not limited to the oral and visual information relating thereto and provided in EHS training classes, seminars, and publications), and the terms of and pricing under this Agreement (collectively EHS Proprietary Information ) contain valuable and confidential information that is proprietary to EHS and to third parties from whom EHS has obtained marketing rights (the Third Party Licensors ), and which includes and constitutes trade secrets Page 2 of 5

3 and unpublished copyrighted material of EHS and the Third Party Licensors. Licensee agrees to maintain the confidentiality of EHS Proprietary Information and to only use it in carrying out its rights and obligations under this Agreement. Nothing in this Agreement shall be construed to convey any title or ownership rights to the Software or Proprietary Information to Licensee. Licensee shall not sublicense, rent, assign, transfer or disclose the Proprietary Information to any third party and shall not reproduce, perform, display, prepare derivative works of, or distribute the Proprietary Information except as expressly permitted in this Agreement. Licensee shall not disclose the results of any benchmark tests of the Software to any third party without EHS prior written approval. Licensee shall make commercially reasonable efforts to prevent the theft of any Proprietary Information and/or the disclosure, copying, reproduction, performance, display, distribution and preparation of derivative works of the Proprietary Information except as expressly authorized herein. b. EHS agrees to maintain the confidentiality of business, operational and other information provided by Licensee to EHS hereunder, provided such information is marked or otherwise identified by Licensee as confidential or proprietary or is of a nature that EHS knows or should know is confidential or proprietary (also referred to herein as Proprietary Information ), and will only use it in carrying out its rights and obligations under this Agreement. c. Both parties agree to restrict access to the Proprietary Information of the other only to employees who (i) require access in the course of their assigned duties and responsibilities in connection With this Agreement, and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section 4. Unless agreed to in writing by the other party, neither party may: a) reveal the terms, conditions or pricing of this agreement to a third party or b) make any published comments whether in print, the internet or a blog site containing any information related to this agreement or use of the Software or Services. d. The confidentiality obligations of the parties regarding the Proprietary Information of the other shall not apply to any material or information that (i) is or becomes a part of the public domain through no act or omission by the receiving party, (ii) is independently developed by employees of the receiving party without use or reference to the Proprietary Information of the other party; (iii) is disclosed to the receiving party by a third party that, to the receiving party s knowledge, was not bound by a confidentiality obligation to the other party, or (iv) is demanded by a lawful order from any court or any body empowered to issue such an order. Each party agrees to notify the other promptly of the receipt of any such order, and to provide the other with a copy of such order. 5. TERM AND TERMINATION a. This Agreement shall continue in force and effect perpetually unless terminated pursuant to its provisions. b. This Agreement, any Schedule or Work Order, and/or any license granted hereunder may be terminated in accordance with the following: i. EHS may terminate this Agreement, any Schedule or any Work Order and/or any licenses granted herein: a) Upon 30 calendar days notice if Licensee uses, transfers or discloses any of the Software or other Proprietary Information, or any copy or modification thereof, in violation of this Agreement, unless Licensee has fully cured such breach within such 30 day period; b) Upon 30 calendar days written notice if Licensee has breached any other material provision of this Agreement, including failure to make payments when due, and such breach is not fully cured within such 30 day period. Licensee may terminate this Agreement or any Schedule or Work Order on 30 calendar day s written notice if EHS has breached any material provision of this Agreement and such breach is not fully cured within such 30 day period. e. Upon termination of the Agreement or any license(s) granted herein, Licensee s right to use and/or possess the affected Software and other related Proprietary Information shall immediately cease. Licensee shall immediately stop using all such Proprietary Information (including Software) and shall return all copies to EHS, except that Licensee may instead choose to delete all installed copies off of any and all storage media possessed by Licensee. Licensee shall provide EHS with written certification signed by an officer of Licensee that all copies of the Software have been returned or destroyed and that Licensee has retained no copies. d. Any incomplete Work Order(s) shall be terminated concurrently with this Agreement. Licensee shall pay a pro-rata portion of any Work Order that is incomplete at the time of termination and for which payments have not been made and EHS shall deliver to Licensee copies of all such incomplete work for which payment has been made, unless any applicable license for such work has been terminated. e. Termination of this Agreement, any Work Order or any license granted hereunder shall not limit the remedies otherwise available to either party, including injunctive relief. f. EHS will provide Licensee appropriate digital media, such as DVD, compact disk, or magnetic tape containing Licensee Data in an Oracle Export format upon termination of this agreement. 6. WARRANTIES a. EHS warrants that for the first 30 days following delivery of the Software to Licensee (the Warranty Period ), (i) the Software as delivered will perform substantially in conformance with the applicable Documentation, and (ii) that the digital or electronic media on which the Software and the Documentation are distributed are free from defects in materials and workmanship. EHS does not warrant that the Software will operate in combinations except as specified in the Documentation. Notwithstanding any other provision of this Agreement, EHS and Licensee acknowledge that Licensee s use of the Software or other deliverables provided hereunder may not be uninterrupted or error-free. The foregoing warranty shall extend past the initial 30 day period for as long as Licensee is covered by Maintenance services as specified in paragraph Page 3 of 5

4 b. EHS warrants that its Services provided hereunder shall be performed consistent with generally accepted industry standards. This warranty shall be valid for 60 days from the date of performance of the relevant service. c. EHS warrants to Licensee that EHS has the right to enter into this Agreement and to grant the rights and licenses herein and, that to the best of EHS knowledge; the Software does not infringe any patent or copyright or violate any other proprietary rights of a third party. EHS sole and exclusive obligation, and Licensee s sole and exclusive remedy, for breach of this warranty with respect to intellectual property or proprietary rights of any kind, is EHS indemnification of Licensee as set forth in Section 7 below. d. EHS warrants that it will use commercially reasonable efforts to ensure the Software as delivered by EHS does not contain viruses, worms, Trojan horses or other unintended malicious or destructive code ( Malicious Code ). If Malicious Code is discovered in Software as delivered by EHS, EHS shall provide Licensee with a clean copy that does not contain such Malicious Code within 30 days following Licensee s notice to EHS of a breach of this warranty. However, Licensee is hereby notified that the Software will contain license keys intended to ensure the limits of a particular license will not be exceeded. e. Except as set forth in the immediately preceding paragraphs, EHS PROVIDES THE SOFTWARE AND THE DOCUMENTATION WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES OF QUALITY OR PERFORMANCE. Except for EHS indemnification of Licensee as set forth in Section 7, Licensee s exclusive remedy with respect to the Software, the Documentation and this Agreement will be limited to, at EHS option, (a) the replacement of any defective Software or Documentation, or (b) refund of the original purchase price paid for the Software. 7. EHS INDEMNITIES a. EHS will defend or settle, at its expense, any action brought or allegation made against Licensee to the extent that it is based upon a claim that the Software, as provided by EHS to Licensee under this Agreement and used within the scope of this Agreement, infringes any copyright, trade secret, U.S. patent or other proprietary right, and will pay all costs, damages and reasonable attorneys fees attributable to such claim that are awarded against Licensee. EHS obligations hereunder are contingent on the following conditions: i. Licensee must notify EHS in writing promptly after Licensee becomes aware of a claim or the possibility thereof; and i Licensee must grant EHS the sole control of the settlement, compromise, negotiation, and defense of any such action; and Licensee must provide EHS with all information related to the action that is reasonably requested by EHS; and Page 4 of 5 iv. EHS may, at its option, (a) obtain the right for Licensee to continue using the Software; or replace or modify the Software so it is no longer infringing, or (b) terminate the applicable license(s) and remove the Software. If EHS so terminates the applicable license(s) and removes the Software, EHS shall refund to Licensee a pro-rata, un-amortized portion of the license fees paid for such license(s) based on applying straight-line amortization over a 60- month period following the relevant delivery date(s). b. The foregoing indemnity shall not apply to any infringement claim to the extent arising from (i) Software that has been modified by anyone other than EHS; and/or (ii) Licensee s use of the Software in conjunction with Licensee data where use with such data gave rise to the infringement claim; and/or (iii) Licensee s use of the Software with other software or hardware, where use with such other software or hardware gave rise to the infringement claim; and/or (iv) use of other than the most current, unaltered Update to the Software if such claim would have been avoided by the use of such Update and/or (v) compliance by EHS with designs, plans or specifications furnished by or on behalf of Licensee. c. EHS shall not be liable hereunder for any settlement made by Licensee without EHS advance written approval or for any award from any action in which EHS was not granted control of the defense. d. The parties agree to cooperate in good faith in the defense of any legal action or suit that causes one party to invoke an indemnity hereunder. e. THIS SECTION 7 STATES EHS S ENTIRE LIABILITY AND LICENSEE S EXCLUSIVE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND. 8. LIMITATIONS OF LIABILITY a. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO EHS OBLIGATIONS UNDER SECTION 7, NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT (INCLUDING NEGLIGENCE) STATUTORY LIABILITY OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT AGAINST EHS, NEITHER EHS NOR ITS THIRD PARTY LICENSORS SHALL BE LIABLE HEREUNDER FOR DAMAGES WHICH EXCEED, IN THE AGGREGATE, THE FEES PAID BY LICENSEE FOR THE SPECIFIC SOFTWARE OR SERVICES WHICH GAVE RISE TO SUCH DAMAGES. b. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE DAMAGES, OR FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO THOSE FOR BUSINESS INTERRUPTION OR LOSS OF PROFITS, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. c. The provisions of this Agreement allocate the risks between Licensee and EHS. EHS pricing reflects this allocation of risk and the limitations of liability specified herein. 9. MISCELLANEOUS

5 a. Arbitration. Except for actions to protect Proprietary Rights and to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Birmingham, Alabama, if proceedings are initiated by Licensee, and in Licensee s choice of venue, if initiated by EHS. The arbitrator shall apply the laws of the State of Alabama to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration. b. Licensee may not assign this Agreement or any license granted or created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of EHS, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, except in the case of an enterprise-wide license for the Software, Licensee may assign this Agreement to any Affiliate of Licensee, provided that (i) the assignee agrees in writing to be bound by the terms and conditions of this Agreement, (ii) neither Licensee nor the assignee are in default hereunder, (iii) the assignee is not a competitor of EHS, and (iv) Licensee agrees to remain liable for any breach of this Agreement by the assignee. ( Affiliate of a party shall mean such party s parent corporation, an entity under the control of such party s parent corporation at any tier, or an entity controlled by such party at any tier. Control shall mean the power to direct or cause the direction of the management and policies of the entity through the ownership of more than 50% of the outstanding voting interests in such entity.) c. The parties are independent contractors and nothing in this Agreement shall be deemed to make either party an agent, employee, partner or joint venture of the other party. Neither party shall have the authority to bind, commit, or otherwise obligate the other party in any manner whatsoever. EHS may use Licensee s plain text name to list Licensee as a Licensee of EHS. d. During the term of this Agreement and for six months thereafter, both parties agree not to solicit or to offer employment to any employees of the other party without the other party s prior written consent. e. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon mailing by first class mail, properly addressed and postage prepaid, or delivery by courier service to the address specified on the face page hereof or to such other address as the parties may designate in writing. f. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be deemed eliminated and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such deletion. g. Definitions set forth in any part of this Agreement shall apply to all parts of this Agreement. In the event of a conflict between the terms of different parts of this Agreement, the following order of priority shall apply: first, the relevant Schedule(s); second, the relevant Work Order(s); third the Software Investment Summary; and fourth, the Agreement. h. The obligations of the parties under this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive termination, cancellation, or expiration of this Agreement. i. Neither party shall be considered in default in performance of its obligations hereunder if performance of such obligations is prevented or delayed by force majeure or any cause beyond its reasonable control. j. This Agreement (including the attached Purchase Schedules(s), Work Order(s), Exhibit(s), and referenced Attachment(s) constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto. The parties agree that this Agreement cannot be altered, amended or modified, except in writing, signed by an authorized representative of both parties. It is expressly agreed that the terms of any Licensee purchase order or other ordering document (except for mutually executed Software Investment Summary, license Schedule (s) and Work Order(s) shall be without force and effect. k. This Agreement shall be governed by and interpreted in accordance with the laws of the United States and State of Alabama, excluding its choice of law rules. Agreed to by: EHS, Inc. By: W. Sanders Pitman President and Chief Executive Officer Date: Lincoln Lancaster County Public Health By: (Name typed or printed) (Title) Date: Page 5 of 5