Software License Agreement

Just-Write™ Software License Agreement

A Product of BartCharts, LLC

Developer has developed and licenses to users its software program marketed under the name Just-Write (the "Software").

Licensee desires to utilize a copy of the Software.

NOW, THEREFORE, in consideration of the mutual promises set forth herein, Developer and Licensee agree as follows:

License.  Developer hereby grants to Licensee a perpetual, non-exclusive, limited license to use the Software in the United States of America as set forth in this Agreement.

Restrictions.  Licensee shall not modify, copy, duplicate, reproduce, license or sublicense the Software, or transfer or convey the Software or any right in the Software to anyone else without the prior written consent of Developer; provided that Licensee may make one copy of the Software for backup or archival purposes.

Fee.  In consideration for the grant of the license and the use of the Software and technical support of the Software, Licensee agrees to pay Developer a “per patient” and “per hospital visit” fee.  Licensee shall provide monthly reports detailing the number of patients and the number of patient visits.  Report data and format shall be agreed to and approved in writing by Developer and Licensee with execution of this document.  

Title.  Developer hereby represents to Licensee that Developer is the owner of the Software or otherwise has the right to grant to Licensee the rights set forth in this Agreement. In the event any breach or threatened breach of the foregoing representation and warranty, Licensee's sole remedy shall be to require Developer or to either: i) procure, at Developer's expense, the right to use the Software, ii) replace the Software or any part thereof that is in breach and replace it with Software of comparable functionality that does not cause any breach, or iii) refund to Licensee the full amount of the license fee upon the return of the Software and all copies thereof to Developer.

Technical Support:  The Developer will provide technical support to current license holders of the Software through a variety of means, as determined appropriate by the Developer. Technical support of the Software is governed by the Technical Support Reglament, the text of which is placed on the web site of the Developer at http://www.bartcharts.com/reglament.htm.  The Licensee understands and acknowledges that the Developer at its discretion may discontinue, curtail, place limits on, or charge a fee at any time for any reason for its technical support services for this Software.

Licensee acknowledges that the Software is inherently complex, that not all errors will be identifiable or be corrected and that the time it might take to correct errors may not be commercially reasonable. The Developer provides support on a "best efforts" basis only and does not represent or warrant that it will be able to resolve every technical support request.

THE SOFTWARE IS OFFERED ON AN "AS-IS" BASIS AND NO WARRANTY, EITHER EXPRESSED OR IMPLIED, IS GIVEN. THE DEVELOPER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. LICENSEE ASSUMES ALL RISK ASSOCIATED WITH THE QUALITY, PERFORMANCE, INSTALLATION AND USE OF THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE RISKS OF PROGRAM ERRORS, DAMAGE TO EQUIPMENT, LOSS OF DATA OR SOFTWARE PROGRAMS, OR UNAVAILABILITY OR INTERRUPTION OF OPERATIONS. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USE THE SOFTWARE AND ASSUME ALL RISKS ASSOCIATED WITH ITS USE.

Payment.  Payment of the first month license and technical support fee (see 3. Fee) shall be made upon delivery of the Software. Payment of any other amount, including subsequent monthly license fee owed by Licensee to Developer pursuant to this Agreement shall be paid within thirty (10) days following invoice from Developer. In the event any overdue amount owed by Licensee is not paid following ten (10) days written notice from Developer, then in addition to any other amount due, Developer may impose and Licensee shall pay a late payment charge at the rate of one percent (1%) per month on any overdue amount.

Taxes.  In addition to all other amounts due hereunder, Licensee shall also pay to Developer, or reimburse Developer as appropriate, all amounts due for property tax on the Software and for sales, use, excise taxes or other taxes which are measured directly by payments made by Licensee to Developer. In no event shall Licensee be obligated to pay any tax paid on the income of Developer or paid for Developer's privilege of doing business.

Term and Termination

Term of Agreement.  This Agreement commences on the date Licensee accept it and continues until license granted in accordance with this Agreement have expired or been terminated.

Term License Grant.  License grant by Licensee commence on the start date specified in the applicable Agreement and for a period of one year, and all license grant will automatically renew for additional one year periods, unless either party gives written notice of non-renewal at least 60 days before the end of the relevant term.  The price per patient per visit during any renewal period shall be the same as the prior period unless Developer have given Licensee written notice of a pricing change at least 30 days before the end of such prior term, or agreed upon in advance in accordance with the applicable Agreement.

Termination for Cause.  A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

Surviving Provisions. Section 1 (License), 2 (Restrictions), 4 (Title), 10 (Warranty Disclaimer), 11 (Limitation of Liability), 12 (Mutual Indemnification) shall survive any termination or expiration of this Agreement.

Warranty Disclaimer.
DEVELOPER'S WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Limitation of Liability.
Developer shall not be responsible for, and shall not pay, any amount of incidental, consequential or other indirect damages, whether based on lost revenue or otherwise, regardless of whether Developer was advised of the possibility of such losses in advance. In no event shall Developer's liability hereunder exceed the amount of license fees paid by Licensee, regardless of whether Licensee's claim is based on contract, tort, strict liability, product liability or otherwise.

Mutual Indemnification

Indemnification by Developer. Developer shall defend Licensee against any claim, demand, suit, or proceeding (" Claim") made or brought against Licensee by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Developer for any damages finally awarded against, and for reasonable attorney’s fees incurred by Developer in connection with any such Claim; provided, that Licensee (a) promptly give Developer written notice of the Claim; (b) give Developer sole control of the defense and settlement of the Claim (provided that Developer may not settle any Claim unless the settlement unconditionally releases Licensee of all liability); and (c) provide to Developer all reasonable assistance, at Developer expense.

Indemnification by Licensee. Licensee shall defend Developer against any Claim made or brought against Developer by a third party alleging that Developer Data, or Licensee use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Developer for any damages finally awarded against, and for reasonable attorney’s fees incurred by Developer in connection with any such Claim; provided, that Developer (a) promptly give Licensee written notice of the Claim; (b) give Licensee sole control of the defense and settlement of the Claim (provided that Licensee may not settle any Claim unless the settlement unconditionally release Developer of all liability); and (c) provide to Licensee all reasonable assistance, at Licensee expense.

Exclusive Remedy. This Section 12 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.

Notice.  Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.

Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the state of California.

No Assignment.  Neither this Agreement nor any interest in this Agreement may be assigned by Licensee without the prior express written approval of Developer.

Final Agreement.  This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.

Severability.  If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

Headings.  Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.

IN WITNESS WHEREOF, Developer and Licensee have executed this Software License Agreement on the day and year first above written.