END-USER LICENSE AGREEMENT
This End User License Agreement (“EULA”) is effective between PerformusTrack and the “End User” as of the first access by the End User (“Effective Date”) of PerformusTrack’s analytical, informatics, workforce management software (“Software”), related Database Schema for generating automated reports (“Reports”) and Interfaces to third-party instrumentation and/or electronic records software, and any Bespoke software (collectively referred to as “Software”). In consideration of the foregoing, the respective covenants, agreements and undertakings contained herein, the sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
License GRANT. In accordance with the terms of that certain Software and Services License Agreement (“SSA”), between PerformusTrack and Customer, PerformusTrack hereby grants End User as an authorized employee, agent or contractor of Customer, a personal, non-exclusive, non-transferable limited license to use the Software on a Customer licensed Device. Any access or use of the Software on and unlicensed Device is a violation of applicable law and international treaty. PerformusTrack reserves the right to update or deploy new Versions or Releases of the Software. The substitution shall have no effect on the rights and obligations of the parties under this EULA. End User acknowledges and agrees that PerformusTrack is not responsible for third-party Devices, software, hardware, products or services. End User agrees to indemnify, defend and hold harmless PerformusTrack for any allegation, claim, suit, proceeding or action arising out of or relating to End User’s failure to comply with the requirements and obligations of End User under this EULA, regardless of the nature of the claim, whether in tort, contract or otherwise.
End User Covenants and obligations. This EULA provides a limited right to access and use the Software as provided herein. End User agrees that it will not, and will not permit any other person or entity to, create, duplicate, replicate, copy, adapt, “unlock,” translate, alter, revise, sell, resell, assign, rent, lease, lend, transfer, distribute, sublicense, modify, merge, disassemble, manufacture, localize, port, reverse engineer, reverse compile, make derivative works of the Software or any documentation or components thereof for any purpose whatsoever, directly or indirectly by any method, except where and only to the extent that such operations are permitted according to mandatory, non-waivable, statutory legislation and End User complies with said legislation in all respects. End User agrees not to develop any software based on any portion or (to the extent this prohibition is permitted by law) based on any function of the Software. End User acknowledges that modification and alteration of the Software may affect the operability and functions of the Software and that Envision shall be relieved of all of its obligations under this EULA.
End User has been advised and acknowledges that the Software is a valuable and unique asset of PerformusTrack, and that it is protected by intellectual property registrations, markings and/or as a trade secret of PerformusTrack. End User agrees to maintain all matters and information related to the Software, including, without limitation, all Releases and new Versions (collectively, “Confidential Information”) in strict confidentiality, will use the Confidential Information only as expressly permitted by this EULA. Without limiting the foregoing, End User shall maintain at least as protective procedures regarding Confidential Information as it maintains with respect to its own confidential information, but in no event less than a reasonable standard of care. End User shall not remove any proprietary notices contained on or in the Software. The parties agree that in addition to available State Law, that confidential information exchanged pursuant to this Agreement will be construed to be a trade secret in accordance with the United States Defend Trade Secrets Act (DTSA), and/or European Union Directive 2016/943 (EU943), and protectable in accordance with the rights and remedies afforded thereunder. Notwithstanding anything herein to the contrary, neither Party, or an individual employee thereof, shall be criminally or civilly liable for the disclosure of Confidential Information 1) made in confidence to a Federal, State or Local government official or to an attorney for the purpose of reporting or investigating a possible violation of law, 2) is made under seal in a complaint or other document filed in a lawsuit or legal proceeding, or 3) where the individual files a lawsuit for retaliation for reporting a suspected legal violation and discloses Confidential Information to the individual’s attorney, or under seal in a court proceeding, or otherwise pursuant to court order.
Term of License; Termination. Subject to the terms of this EULA, the license granted under this EULA shall only be effective as long as the SSA is in effect, and shall terminate immediately upon termination of the SSA or End User’s relationship with Customer. Upon the termination of this EULA or the license granted herein, End User shall have no further right to use or access the Software.
Title. End User has been advised and acknowledges that PerformusTrack has sole and exclusive ownership of all right, title and interest in and to the Software, documentations and Confidential Information as well as all Versions or Releases thereof (whether or not authorized) and all documentation relating to such, and all intellectual property rights associated therewith (including, without limitation, rights to copyrights, trademarks, trade secrets, or know-how). Based upon such, this EULA is only a license of the Software, and is not a transfer or agreement of any right, title or interest in or to the Software, or any other software, documentation, or Confidential Information.
DISCLAIMER OF WARRANTIES. END USER ACKNOWLEDGES AND AGREES THAT, WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH HEREIN, PERFORMUSTRACK HAS MADE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EITHER ORAL OR WRITTEN, EITHER EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE LICENSED HEREUNDER OR THE SERVICES TO BE PROVIDED HEREUNDER, AND TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, ENVISION SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES CONCERNING SUCH SOFTWARE AND SERVICES, BOTH EXPRESS AND IMPLIED, ORAL AND WRITTEN, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, ACCURACY OF DATA, SYSTEM INTEGRATION, AND NON-INFRINGEMENT AND ALL WARRANTIES RELATING TO RESULTS TO BE DERIVED FROM THE USE OF SUCH SOFTWARE OR SERVICES OR OTHER MATERIALS PROVIDED IN CONNECTION WITH THIS EULA. PERFORMUSTRACK DOES NOT REPRESENT OR WARRANT THAT SOFTWARE OR SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, OR OTHER PROGRAM LIMITATIONS, OR ABLE TO PROCESS, LOCATE, REVEAL OR REMOVE ALL HIDDEN DATA. END USER ACKNOWLEDGES THAT IT IS A SOPHISTICATED PARTY TO THIS EULA AND RECOGNIZES AND AGREES THAT THIS PROVISION IS AN INTEGRAL PART OF ENVISION’S PRICING AND PERFORMANCE OF SERVICES HEREUNDER, AND IS A MATERIAL FACTOR IN HUDSONALPHA’S AUTHORIZATION FOR THE GRANT OF THE LICENSE AND USE HEREUNDER.
LIMITATION OF LIABILITY. IN NO EVENT SHALL PERFORMUSTRACK BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR DESTRUCTION OF DATA, BUSINESS INTERUPTION, COSTS OF COVER, LOSS OF USE, LOSS OF ANTICIPATED REVENUES OR PROFITS, OR DAMAGES RESULTING FROM OR RELATING TO CLAIMS BROUGHT AGAINST END USER BY THIRD PARTIES, REGARDLESS OF WHETHER ENVISION OR HUDSONALPHA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND THE END USER CANNOT CLAIM, DEMAND OR SEEK RECOVERY FROM PERFORMUSTRACK OR THEIR REPRESENTATIVES FOR ANY OF THE FOREGOING LOSSES OR DAMAGES AND PERFORMUSTRACK WILL NOT INDEMNIFY THE END USER FOR ANY SUCH CLAIMS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PERFORMUSTRACK DISCLAIMS ANY PRODUCT LIABILITY AS A CONSEQUENCE OF LOSS OR DAMAGE TO PROPERTY OR PERSON WHICH. THESE LIMITATIONS SHALL APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE.
CYBERSECURITY. End User acknowledges, understands and accepts that (i) there is inherent risk of compromising information when sharing or transferring electronic information, and End User accepts those risks and the fact that the Software does not eliminate the risk of compromising information; (ii) End User shall be solely responsible for insuring that its disclosure of confidential information or Customer Data complies with all applicable local, state, federal and international laws, rules, regulations and requirements relating to privacy, including, without limitation, the Health Insurance Portability and Accountability Act of 1996 and any and all amendments thereto; and (iii) improper or unauthorized use of the Software, including use beyond the scope of the License granted herein, may increase the risk of the inadvertent disclosure of compromising information.
Governing Law. This EULA will be governed by and construed in accordance with the laws of the State of Alabama without regard to conflict of law principles. End User hereby submits to the exclusive jurisdiction of the state and federal courts located in Alabama for the resolution of any dispute arising out of or in connection with this EULA.
Assignment. End User may not assign or otherwise transfer, by operation of law or otherwise, this EULA or any of its rights, interests, benefits, or obligations hereunder, without the prior written consent of PerformusTrack.
Force Majeure. PerformusTrack shall not be liable to the End User for any delay, failure or inability to perform its obligations under this EULA due to any cause beyond its reasonable control, including, but not limited to, utility failures, data center disruption, network disruption, equipment breakdowns, fires, storms, accidents, acts of God, acts of war, acts of terrorism, or any act or omission of the End User or its employees, contractors or agents.
EXPORT RESTRICTIONS. End User acknowledges that the Software may be subject to U.S. export restrictions. End User agrees to comply with all applicable US and international laws that may apply to the Software, as well as any end-use, end-user, and destination restrictions regarding export restrictions of the jurisdiction in which the Software is used or to or from which the Software is exported.
Authorization. End User represents that the person accepting this EULA on its behalf is fully authorized to do so, and that this EULA constitutes a valid and binding obligation of such party fully enforceable in accordance with its terms. Further, the undersigned confirms that End User has read, understands and agrees to the provisions set forth above, and to be bound to the terms of this EULA.