SURGERYLETTERTM SOFTWARE LICENSE
AND ACCESS AGREEMENT
This Software License and Access Agreement (the “Agreement”) is made this 11th day of
November, 2011 (the “Effective Date”), by and between Indiana Hemophilia and Thrombosis Center,
Inc., an Indiana non-profit corporation (“Licensor”) and EC Hemophilia Treatment Center (“Licensee”,
collectively, the “Parties” and singly, “Party”).
RECITALS
A.
Licensor is the owner and/or master licensee of all right, title and interest in and to the
SURGERYLETTERTM software (“Software”), including all “Intellectual Property Rights” therein,
which means any unpatented inventions, patent applications, patents, design rights, copyrights,
trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other
trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of
a similar nature anywhere in the world.
B.
Licensee wishes to obtain a license to use the Software;
C.
Licensor wishes to grant to Licensee use of the Software for the purpose of creating
documents containing patient-specific instructions for the pre/peri/post-operative care of bleeding
disorder patients (the “Purpose”).
NOW, THEREFORE, in consideration of the premises, the mutual terms and conditions hereof,
and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties, intending to be legally bound, agree as follows:
1.
Incorporation of Recitals.
The recitals of this Agreement are incorporated herein by reference.
2.
Grant of License; Services.
2.1
Licensor hereby grants to Licensee and Licensee hereby accepts a limited,
revocable, nonexclusive, non-transferable, license to use and have access to the Software for the Purposes
on the terms and conditions set forth in this Agreement.
2.2
Licensor will make the Software available to the Licensee in manner exclusively
determined by the Licensor.
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Ownership and Use of the Software.
3.1 The Software is and shall remain the sole and exclusive property of Licensor. Nothing in this
Agreement shall preclude Licensor from making any use of the Software. This Agreement does
not grant Licensee, by implication, estoppel or otherwise, any license or other right in or to the
Software or the Intellectual Property Rights except for those rights expressly granted.
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3.2 Licensee may use the Software solely for the Purpose defined herein.
3.3 Licensee shall not:
3.3.1
license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially
exploit or make available to any third party the Software;
3.3.2
modify or make derivative works based upon the Software;
3.3.3
reverse engineer, decompile, disassemble or access the Service for any reason.
Notwithstanding the foregoing, if Licensee modifies the Software, Licensee hereby assigns,
conveys, and otherwise transfers to Licensor all of its right, title, and interest in and to such
intellectual property rights.
3.4 If Licensee becomes aware of any infringement, misuse or misappropriation of any Intellectual
Property Rights of Licensor, Licensee shall notify Licensor within a commercially reasonable
period of time, not to exceed ninety (90) days, and shall cooperate reasonably with Licensor to
terminate or remedy such infringement, misuse or misappropriation.
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Term.
4.1 The term of this Agreement shall begin on the date written above and shall continue in full force
and effect for a period of three (3) years unless terminated earlier by mutual agreement or
pursuant to Section 4.3 hereof.
4.2 : Section 8 (Indemnification), Section 10 (Nondisclosure and Non-Use), and Section 12
(Governing Law/Jurisdiction) shall survive the termination of this Agreement.
4.3 “Event of Default” shall mean the failure to:
4.3.1
observe or comply with any other material provision or covenant in this Agreement, and
such failure is not cured to the reasonable satisfaction of the non-defaulting party within
thirty (30) days of the date written notice of such default is delivered, which notice shall
specify with reasonable particularity the basis for the default claimed.
4.4 Upon the occurrence of an Event of Default, the non-defaulting party may seek the following
remedies, which shall be cumulative and not mutually exclusive: (i) immediate termination of
this Agreement; and (ii) all other legal and equitable remedies available. The failure to enforce a
breach of this Agreement shall not be construed as a waiver of the right to enforce such breach at
a later time or to enforce any other breach.
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Completion of Annual Survey.
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5.1 Licensee hereby agrees to completely, accurately, and timely respond to an annual survey
conducted by the Licensor. Failure to respond to this survey shall be construed as a material
breach of this agreement and shall result in the immediate revocation of the License granted
herein.
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Licensor's Representations and Warranties. Licensor represents and warrants:
6.1 Licensor is a corporation, duly formed, existing and in good standing in accordance with the
laws of the State of Indiana.
6.2 Licensor is the owner and/or master licensee of all right, title and interest in and to the Software
and/or Licensor has all necessary rights, and legal authority to grant to Licensee the License, and
no other person or entity is required to give its consent for the License to be valid.
6.3 Licensor has other customers who currently use the Software. Licensor may continue to license,
sell, or provide the Software to persons or entities other than Licensee.
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Licensee’s Representations and Warranties.
7.1 Licensee is a corporation duly formed pursuant to its articles of incorporation or other charter
documents, and in good standing in its state of organization and in the state or states where it
does business.
7.2 Licensee has all the necessary rights, powers and authority to enter into this Agreement without
the consent of any other person or entity.
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Indemnification.
8.1 Licensee shall indemnify, defend, and hold harmless Licensor and its officers, directors,
shareholders, employees, representatives, agents, and Affiliates from all claims, demands,
liabilities, losses, damages, judgments or settlements, including all reasonable costs and
expenses related thereto including attorney’s fees and court costs, directly or indirectly resulting
from: (a) personal injury, death, or property damage in connection with the use of the Software
and Licensee’s Services; (b) any claimed infringement or violation of any patents, trademarks,
copyrights, trade secrets, or other intellectual property rights by Licensee; (c) any material
breach by the Licensee of the terms, conditions, or provisions of this Agreement; or, (d) the
untruth of any representation or warranty made by the Licensee in this Agreement.
8.2 Notwithstanding anything to the contrary in this Agreement, the Licensee to this Agreement is
under any obligation to indemnify and hold the Licensor harmless unless and until: (a) the
Licensee shall have been promptly notified by the other party of the suit or claim and furnished
with a copy of the communication, notice or other action relating to said claim; (b) the
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Licenseeshall have the right to assume sole authority to conduct the trial or settlement of such
claim or any negotiations related thereto at its own expense, except that no compromise or
settlement of any claim admitting liability of or imposing any obligations on the other party may
be affected without the prior written consent of that party; and (c) the Licensorshall provide
reasonable information and assistance requested by the Licensee, including access to books and
records, in connection with the defense of such claim. If the Licensee refuses to defend or does
not make known to the Licensor its willingness to defend against a claim within ten (10) days
after it receives notice thereof, then the Licensor indemnification shall be free to investigate,
defend, compromise, settle or otherwise dispose of such claim in its best interest and incur other
costs in connection therewith, all at the expense of the Licensee. Notwithstanding the foregoing,
each party at all times reserves the right to retain counsel of its own to defend its interests.
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Assignment and Sublease.
The rights, duties or obligations under this Agreement may not be assigned or delegated by Licensee or
by operation of law, without the prior written consent of Licensor. Any assignment or delegation in
violation of the previous sentence shall be void.
10 Nondisclosure, Non-Use, and Non-Competition.
10.1
“Confidential Information” means any non-public technical information, trade secrets and
any other confidential information regarding the Software Intellectual Property, business affairs
of a Party, its employees, agents or assigns including, without limitation, any information
concerning methods of business operations; information comprising the identity, lists or
descriptions of any customers, potential customers or referral sources; or other confidential
information regarding one Party which may be conveyed to the other from any source, including
but not limited to scientific and technical information related to the development, manufacture,
use, implementation, or marketing of the Software.
10.2
Without the prior written consent of the other party or a valid court order from a court of
competent jurisdiction, neither Licensor nor Licensee shall:
10.2.1 Disclose, publish, or otherwise make available (orally or in writing) to any third party
any of the other Party’s Confidential Information;
10.2.2 Use any of the other Party’s Confidential Information except as required for the
performance of this Agreement or upon the express prior written consent of the Party
whose Confidential Information is to be used; or
10.2.3 Sell, transfer, or otherwise exploit any of the other Party’s Confidential Information, or
permit such sale, transfer, or exploitation by a third party (including any employee of the
receiving Party).
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10.3
Each Party will suffer immediate and irreparable harm to its goodwill and business, which
will not be compensable by damages alone, in the event the other Party repudiates or
breaches the provisions of this Section 10, or threatens or attempts to do so. In the event of
any breach or any threatened breach by a Party of the covenant with respect to Confidential
Information, the non-breaching Party, in addition to and not in limitation of any other
rights, remedies or damages available to the non-breaching Party, at law or in equity, shall
be entitled to seek a temporary, preliminary and permanent injunction in order to prevent or
restrain any such breach by the breaching Party or by any partner, agent, representative,
employer, employee and/or any other persons acting, directly or indirectly, in concert or
participation with the breaching Party, and the non-breaching Party shall not be required to
post a bond as a condition for the granting of such relief.
11 Patient Data.
Licensor does not and will not own any Patient Data. Licensee, and not Licensor, shall have sole
responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual
property ownership or right to use of all Patient Data. Licensor shall not be responsible or liable for the
deletion, correction, destruction, damage, loss or failure to store any Patient Data. Licensor will not store
any Patient Data and Licensee agrees not to send or permit the sending of Patient Data to Licensor. All
storage including computer storage of Patient Date shall be the responsibility of Licensee. “Patient Data”
means any data, information, or material provided or submitted by any Patient, including but not limited
to personal identifiable information (“PII”) or health information.
12 Governing Law/Jurisdiction.
This Agreement shall be construed in accordance with, and governed by Indiana law, without regard to
conflicts of law principles. The Parties consent to the exclusive personal and subject matter jurisdiction
of courts located within Marion County, Indiana.
13 Force Majeure.
Neither party shall be liable for any failure or delay in the performance of its obligations due to fire,
flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorder,
rebellions, or other similar cause beyond the reasonable control of the party affected, provided such
default or delay could not have been prevented by reasonable precautions and cannot reasonably be
circumvented, and provided further that the party hindered or delayed immediately notifies the other party
describing the circumstances causing delay. Notwithstanding the foregoing, in the event that such
condition prevents or delays performance of any party for a period in excess of thirty (30) days, the other
party shall have the right to immediately terminate this Agreement upon written notice.
14 Counterparts; Signatures.
This Agreement may be executed in several counterparts, each of which shall constitute an original and
all of which, when taken together, shall constitute one Agreement. A signature sent by facsimile or other
electronic means shall be as effective as an original signature.
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15 Severability.
If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this
Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or
unenforceable by any court of competent jurisdiction, and if limiting such provision would make the
provision valid, then such provision shall be deemed to be construed as so limited. Should the severance
of any such part of this Agreement materially affect any other rights and obligations of the Parties
hereunder, the Parties hereto will negotiate in good faith and amend this Agreement in a manner
satisfactory to the Parties.
16 Notice.
Any notice required or otherwise given pursuant to this Agreement shall be in writing and delivered in
person, sent by United States mail, certified, return receipt requested, postage prepaid, or sent by
overnight delivery service for next business day delivery (e.g., FedEx or U.P.S.), addressed to Licensor as
follows:
If to Licensor:
Attention: Chris Roberson
Indiana Hemophilia & Thrombosis Center, Inc.
8402 Harcourt Road, Suite 500
Indianapolis, Indiana 46260
Fax: 317-871-0010
If to Licensee:
Attention: Ivonne Fuentes
3400 Grand Blvd.
East Chicago, IN 46312
Any notice given as set forth herein shall be deemed to have been duly given (a) when delivered, if
personally delivered, (b) on the third (3rd) business day after mailing, if mailed in the United States to the
Party to whom notice is to be given by first class mail or (c) on the next business day after delivery to a
nationally recognized overnight courier service or the Express Mail service maintained by the United
States Postal Service. Any notice not sent in accordance with the provisions of this section shall be
deemed given only upon confirmed receipt.
17 Headings.
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The headings for the sections and paragraphs herein are for convenience only and shall not be used to
interpret or modify and of the provisions of this Agreement.
18 Entire Agreement.
This Agreement constitutes the entire agreement regarding the relationship between Licensor and
Licensee, and supersedes any prior understanding or representation of any kind preceding the date of this
Agreement. There are no other promises, conditions, understandings or other Agreements, whether oral
or written relating to the subject matter of this Agreement.
19 Modification; Waivers.
This Agreement may not be modified, changed or amended orally, and may only be modified, changed or
amended by a writing signed by the Party charged with such modification, change or amendment. The
failure to insist upon strict compliance of any of the terms, covenants or conditions hereof shall not be
deemed a waiver of such terms, covenants or conditions, nor shall any waiver or relinquishment of any
right or power hereunder at any one time or times be deemed a waiver or relinquishment of such right or
power at any other time or times.
20 Binding on Successors.
This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective
heirs, executors, legal representatives, successors, and permitted assigns.
21 LIMITATIONS OF WARRANTIES.
BUT FOR THE WARRANTIES CONTAINED IN SECTION 6 OF THIS AGREEMENT, LICENSOR
MAKES NO REPRESENTATIONS, EXTENDS NO WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, QUALITY, QUIET ENJOYMENT, ACCURACY, COURSE OF
DEALING, USAGE OR TRADE AND LICENSOR ASSUMES NO RESPONSIBILITY
WHATSOEVER WITH RESPECT TO USE, OR THE RIGHT TO PRODUCE PRODUCTS MADE BY
THE USE OF THE SOFTWARE INTELLECTUAL PROPERTY UNDER THIS AGREEMENT.
22 LIMITATIONS OF LIABILITY.
IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR ITS PATIENTS OR BUSINESS
PARTNERS FOR ANY INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE REMEDIES
SET FORTH IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. LICENSOR’S
MONETARY LIABILITY PERTAINING TO ANY SINGLE USE OF THE SERVICES SHALL limited
to what they pay. REGARDLESS OF THE FORM OF ACTION, BE LIMITED TO THE SUM OF
FIFTY DOLLARS ($50.00), AND TO TEN THOUSAND DOLLARS ($10,000.00) IN THE
AGGREGATE.
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23 Construction.
The Parties have participated jointly in the negotiation and drafting of this Agreement, and, in the event of
an ambiguity or a question of intent or a need for interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed the day and
year first above written.
LICENSOR:
INDIANA HEMOPHILIA AND THROMBOSIS
CENTER, INC.
By:__________________________________
Its:__________________________________
LICENSEE:
_____________________________________
By: __________________________________
Its:___________________________________
______________________________________
(Street Address)
______________________________________
(City, State and Zip)
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