DYMAXIUM GENERAL SOFTWARE LICENSE, SUPPORT & SERVICES TERMS (“Terms”)
1.0 GENERAL TERMS
1.1 These Terms, effective the Effective Date, are between Dymaxium Inc. and its affiliates (“Dymaxium”), and a customer of Dymaxium. The Terms govern the license by Customer of Dymaxium’s software programs in object code form ("Software"), and the related user manuals and documentation, in hard copy or electronic format (“Related Documentation”), as well as the provision of support for the Software (“Support”) and other services relating to the Software (“Services”). In these Terms, unless otherwise stated, the word “Software” includes “Related Documentation”.
1.2 Software, Support and Services will be provided to Customer, pursuant to the attached Platform Licensing Agreement or in a separate or any subsequent document referencing these Terms executed by both parties ("Platform Licensing Agreement"). Each Platform Licensing Agreement will be subject to these Terms. Any conflict between these Terms and a Platform Licensing Agreement will be resolved in favor of the latter for that Platform Licensing Agreement only and any conflict between Platform Licensing Agreements will be resolved in favor of the most recent.
2.0 SOFTWARE LICENSE
2.1 Dymaxium grants to Customer a perpetual, non-exclusive, non-transferable (except as otherwise provided herein) license to use, copy and transmit the Software described in a Platform Licensing Agreement in the applicable jurisdiction. Each copy of the Software and any upgrade or new release of the Software provided to Customer is subject to the provisions of these Terms. Dymaxium will deliver to Customer a set of master media for the current version of each item of Software from which Customer may copy the Software as licensed.
2.2 Customer’s use of Software is limited to the hardware (computers, CPU’s or servers), the number of copies or users, and such other restrictions, as are set out in a Platform Licensing Agreement, except that a reasonable number of copies may be made for archival or back-up purposes. Customer is responsible for installing the Software and for copying and installing any upgrades or new releases of the Software, unless otherwise set out in a Platform Licensing Agreement. Customer may purchase additional copies of Related Documentation at prevailing Dymaxium prices.
2.3 Except as otherwise provided in an Platform Licensing Agreement, Customer will use the Software only for the determination or presentation of the value of medications, medical products or medical services to health care decision makers, and Customer will not sublicense, distribute or otherwise make the Software available to any unrelated third party (including, without limitation, any contractor, franchisee, agent or dealer) without first obtaining the written agreement of (a) Dymaxium to that use, and (b) the third party to comply with these Terms.
2.4 Customer may distribute or make the Software available to any entities over which the Customer exercises effective control (“Affiliates”). The term “control” means the possession, direct or indirect, of the power to direct or cause the direction of management and policies, whether through the ownership of voting shares or by contract. Additional copies/users of the Software for use by Affiliates may be either licensed by Customer on behalf of Affiliates named in an Platform Licensing Agreement (for which the Customer will be jointly and severally liable) or an Affiliate may execute a separate Platform Licensing Agreement subject to these Terms.
3.1 Dymaxium will provide the level of Support for the Software set forth in the Platform Licensing Agreement in accordance with the prevailing Dymaxium Support Guide. The Dymaxium Support Guide is a document issued by Dymaxium describing Support options and procedures and may be amended from time to time by Dymaxium. Any changes to the Dymaxium Support Guide shall become effective upon the next annual support term. Requests for Support will be directed through the Customer’s authorized contacts to the Dymaxium Support Centers identified in the Dymaxium Support guide. Support will commence on delivery of the Software to Customer.
3.2 If specified in the Platform Licensing Agreement, Support may include Basic Support, which means that the Dymaxium shall use commercially reasonable efforts to correct failures of the Software to accord with that documentation, and shall provide any updates or patches available from the Consultant for the Software for the support period. The Basic Support shall renew automatically for successive support periods, unless terminated in writing by the Customer before the end of the current support period. In any event, the Basic Support shall terminate upon the end date specified in the Platform Licensing Agreement.
3.3 If specified in the Platform Licensing Agreement, Support may include Extended Support, which consists of up to a fixed number of hours in the support period (“Support Hours”) of assistance with installation or configuration of the Software on the Customer’s systems, and assistance with the use of the Software for Customer end users or administrators. The Support Hours apply only to Extended Support, and not to the Basic Support. Extended Support shall renew automatically for successive support periods, unless terminated in writing by the Customer before the end of the current support period. In any event, Extended Support shall terminate upon the end date specified in the Platform Licensing Agreement.
3.4 Customer may request that the Dymaxium provide Extended Support in excess of the Support Hours in a particular support period. Extended Support provided in excess of the Support Hours shall be payable by Customer at Dymaxium’s then current hourly rates. Unused Support Hours from one support period cannot be used in any subsequent support period.
3.5 Support is solely provided remotely by telephone, email or online, as applicable. Support is provided only for the hardware and software environment specified in the Dymaxium Support Guide. Support is provided only in the English language. Support is provided from 9AM to 5PM EST.
4.1 Dymaxium will perform the Services (consulting, training, customization, installation, configuration, education or other Services), if any, described in an Platform Licensing Agreement. Dymaxium may assign the performance of any Services to any contractor, with the consent of Customer (which will not be unreasonably withheld). Dymaxium does not guarantee any estimates but will notify Customer as soon as practicable if an estimate will be exceeded. Customer may cancel any Service by providing ten (10) days written notice to Dymaxium. Customer will pay for Services performed before termination and will be liable to pay for cancelled training or education which was scheduled within such ten (10) day period.
4.2 Dymaxium retains all right, title and interest in any ancillary software, documentation or other works provided or developed as a result of performing Services (“Works”). Dymaxium grants Customer a perpetual, non-exclusive, non-transferable license to use and modify the Works solely for Customer’s internal purposes and not to sublicense, distribute or make available to third parties. Either party may (a) independently develop works competitive with or similar to the Works, and (b) make use of the know-how acquired, principles learned or experience gained during the performance of the Services. For greater certainty, the Works do not include the licensed Software and Related Documentation.
5.0 FEES & CHARGES
5.1 Customer will pay Dymaxium the fees, charges or other amounts specified in an Platform Licensing Agreement. Such amounts shall be due and payable upon Customer’s receipt of an invoice. Dymaxium may issue an invoice: (a) upon the shipment of Software or Related Documentation, (b) in advance of the provision of Support or Services unless otherwise set forth in an Platform Licensing Agreement or applicable statement of work executed by both parties. Customer shall pay a service charge on amounts not paid within thirty (30) days of the date of the invoice equal to the lesser of 1.5% per month or the maximum legal interest rate.
5.2 All sales, value-added and other taxes relating to Customer’s payments to Dymaxium for Software, Related Documentation, Support and/or Services, excluding taxes on the income of Dymaxium, will be paid by Customer. To the extent Customer is claiming exemption from any applicable taxes, Customer shall provide Dymaxium with a valid exemption certificate at the time each applicable Platform Licensing Agreement is executed.
6.0 CONFIDENTIAL INFORMATION
6.1 In the course of their dealings, the parties may disclose to one another information that is marked “confidential” relating to their business (“Confidential Information”). Neither party will disclose the other party’s Confidential Information to any third party without the prior written consent of the other party, nor will a party make use of any of the other party’s Confidential Information except in the performance of rights or obligations under these Terms. Each party will use at least the same degree of care to avoid disclosure of the other party’s Confidential Information as it uses with respect to its own Confidential Information, but in no event shall less than reasonable care be used.
6.2 Confidential Information does not include information: (a) generally available to or known to the public, (b) previously known to the recipient without any obligation of confidentiality, (c) independently developed by the recipient outside the scope of these Terms without any use of the other party’s Confidential Information, (d) lawfully disclosed to the recipient by a third party under no obligation of confidentiality or (e) disclosed pursuant to a valid court order or as required by a court or tribunal of competent jurisdiction.
7.1 Dymaxium warrants that: (a) it has the right to grant the license to use the Software as set out in these Terms; (b) for a period of thirty (30) days following the initial delivery of the Software, or of any new release of the Software, to Customer (i) the Software will perform in conformity with its Related Documentation, and (ii) the media provided by Dymaxium will be free of defects in workmanship; and (c) Support and Services will be provided with reasonable skill and care conforming to generally accepted software industry standards. Dymaxium does not warrant uninterrupted or error-free operation of the Software or that Dymaxium will correct all Software defects. Customer is responsible for the results obtained from the use of the Software.
7.2 THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE.
7.3 If the above warranties are breached, Dymaxium will, at its option and at no cost to Customer, (a) provide remedial services necessary to enable the Software, Support or Services to conform to the warranty, or (b) replace any defective Software or media, or (c) refund amounts paid in respect of the defective Software, Support or Services. Dymaxium’ warranty obligations will only extend to material errors that can be demonstrated to exist in an unmodified version of the Software except where the modifications were carried out by Dymaxium or with its approval. Customer will notify Dymaxium promptly in writing of any breach of warranty. Customer will provide Dymaxium with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. The remedies set out in this subsection are the Customer’s sole remedies for breach of the above warranties.
8.0 LIMITATION OF LIABILITY
8.1 Dymaxium will not be liable to Customer for: (a) loss of profits, business, revenue, goodwill, or anticipated savings, (b) loss of or damage to data, or (c) special, indirect, incidental, consequential or exemplary damages, including costs or legal expenses, in connection with the supply, use or performance of the Software or the performance of its other obligations pursuant to these Terms, even if it is aware of the possibility of the occurrence of such damages.
8.2 In any event, the total liability of Dymaxium (including the licensors of products forming part of the Software) to Customer for any claim under these Terms or any Platform Licensing Agreement, whether it arises by statute, contract or otherwise, will not exceed the lesser of $100,000 or the amounts paid to Dymaxium by Customer under these Terms or any Platform Licensing Agreement for the Software, Support or Services which form the subject of the claim. The foregoing limit does not apply to (a) the indemnity given in Section 10.0, or (b) death or personal injury arising from negligence of Dymaxium, (c) a breach of the confidentiality provisions of Section 6.0; or (d) in respect of loss of, or damage to Customer’s tangible property, to the extent caused by the negligence of Dymaxium, its employees or subcontractors. In the event of loss of or damage to Customer’s tangible property, to the extent caused by the negligence of Dymaxium, its employees or subcontractors, the limit of liability is $1,000,000.
9.0 PROPRIETARY RIGHTS
Customer acknowledges Dymaxium’ representation that the Software contains confidential and proprietary information and trade secrets belonging to Dymaxium and its licensors, and that title in and rights to the Software remains exclusively with Dymaxium. Customer’s rights to the Software are strictly limited to those granted in these Terms. Customer will not decompile, disassemble or otherwise reverse engineer the Software. If the foregoing provision is prohibited by applicable law, Customer will provide Dymaxium with advance written notification of (a) its intention to decompile, disassemble or otherwise reverse engineer the Software, and (b) the nature of the work involved. Dymaxium will be given the right of first refusal to perform such work at its prevailing rates and prices.
10.0 PATENT AND COPYRIGHT INDEMNIFICATION
Dymaxium, at its expense, will indemnify, defend and hold harmless the Customer against any claims or legal actions arising out of or in connection with any claims that the Software infringes or violates any patent or copyright of any third party (“Claim”), on the condition that Customer notifies Dymaxium promptly of the Claim and gives Dymaxium sole control of, and cooperates with Dymaxium in, the defense and negotiations for its settlement or compromise, provided that Dymaxium shall not settle the Claim in a manner that imposes any obligation on the Customer or involves a remedy other than the payment of money without the prior written consent of the Customer (which consent shall not be unreasonably withheld). If Customer is, or may become, prohibited from continued use of any Software by reason of an actual or anticipated Claim, Dymaxium will use its reasonable efforts to (a) obtain for Customer the right to continue using the Software, or (b) replace or modify such Software so that it is no longer subject to a Claim, but performs the same functions in an equivalent manner. If neither of the foregoing options are reasonably available in Dymaxium’ sole discretion, Dymaxium will refund to Customer the unused portion of the license fees paid in respect of the Software (determined by depreciating the license fees paid on a straight-line basis over three years) and any corresponding unused fees paid in respect of Support. Dymaxium will have no liability for any Claim based on (i) use of other than a prevailing release of the Software (if the Claim could have been avoided by that release), or (ii) any use or modification of Software not approved in writing by Dymaxium or contemplated by the Related Documentation. THIS SECTION STATES THE ENTIRE RESPONSIBILITY OF DYMAXIUM CONCERNING CLAIMS.
Either party may terminate these Terms if the other party fails to remedy a breach of any material obligation under these Terms or any Platform Licensing Agreement within thirty (30) days of receiving written notice from the other party detailing such breach. If the termination is related to other than a material breach by Customer, Customer shall continue to have the right to use Software licensed prior to the date of termination. Upon termination, Customer shall continue to be liable for any obligations arising, liabilities accrued or amounts payable under all Platform Licensing Agreements executed prior to termination. In addition to any other remedies, Dymaxium may seek injunctive relief for any breach of these Terms or any Platform Licensing Agreement by Customer (or any Affiliate). Sections 2, 6, 8, 9, and 12 of these Terms shall survive the termination of this agreement.
12.0 AUDIT RIGHTS
Customer will keep accurate records of the number of copies of Software made and distributed, the number of end users and their location. Dymaxium or its authorized representative may enter Customer’s premises during business hours on five (5) business days notice for the purpose of examining, or having examined (at Dymaxium’ own expense) and making copies of, Customer’s relevant books, records and computers to verify Customer’s fulfillment of its obligations under these Terms and/or any applicable Platform Licensing Agreement.
13.1 All notices pursuant to these Terms will be in writing and given by: hand delivery, registered or certified mail (postage prepaid) to the other party at the address appearing on the Platform Licensing Agreement. Customer party will promptly give written notice of any change in its address or addressee. Notices will be deemed to be received: on delivery or on the fifth (5th) business day after mailing, as the case may be.
13.2 No delay or failure in exercising any right under these Terms, or any partial or single exercise of any right, will constitute a waiver of that right or any other rights under these Terms. No consent to a breach of any express or implied term set out in these Terms constitutes consent to any subsequent breach.
13.3 If any provision of these Terms is, or becomes, unenforceable, it will be severed from these Terms and the remainder of these Terms will remain in full force and effect.
13.4 Customer may not assign any right or license granted under these Terms, in whole or in part, without the prior written consent of Dymaxium. Any attempt to assign without consent is void. The Customer may assign all, but not part of its rights to a subsidiary or legal entity (such as a corporation) of which a Customer owns more than a 50 percent interest or to a successor organization of Customer through merger or acquisition. Notwithstanding the foregoing, if all or part of the Customer’s business is acquired by a third party (by way of asset or share purchase, merger or amalgamation) or if it becomes an Affiliate of a third party, the scope and effect of these Terms and any Platform Licensing Agreement(s) will be limited (a) to the business carried on by the Customer and its Affiliates prior to the acquisition, and (b) to the total number of copies or users of Software actually deployed by Customer immediately prior to either of the foregoing events. Dymaxium is also permitted to assign its rights to payments without obtaining Customer’s consent.
13.5 This agreement, consisting of the Terms and all Platform Licensing Agreements referencing the same, and any matters relating to it, will be governed, construed and interpreted in accordance with the laws applicable in the Province of Ontario, Canada, excluding its law relating to conflicts of laws and the United Nations Convention on Contracts for the International Sale of Goods (and any legislation implementing such Convention). Customer consents to the jurisdiction of competent courts located in the Province of Ontario.
13.6 Customer will ensure that, to the extent permitted hereunder, the Software (and any direct products thereof) is exported or re-exported in compliance with applicable statutes or regulations (including Canadian export laws) relating to the country of destination, or to the users or uses of the Software.
13.7 This agreement, consisting of the Terms and all Platform Licensing Agreements referencing the same, is the entire understanding and agreement between Customer and Dymaxium with respect to the Software, and it supersedes all prior negotiations, commitments and understandings, verbal or written, any purchase order issued by Customer and any terms (in any form or medium) provided with or in the Software. These Terms or a Platform Licensing Agreement may only be amended or otherwise modified by written agreement signed by the authorized signatories of both parties.
13.8 Customer authorizes Dymaxium and its subsidiaries (and their successors and assigns, contractors and business partners) to store and use Customer’s business contact information wherever they do business, in connection with the provision of Software, Support and Services or in furtherance of Dymaxium’ business relationship with Customer. At such time as these Terms and any Platform Licensing Agreement become effective, the Customer authorizes Dymaxium to use Customer’s name in a press release or similar communication referring to the license of the Software by the Customer. Any additional information relating to the license of the Software shall be reviewed and approved by Customer prior to publication.