LICENSE. MPN Software Systems, Inc. (MPN) hereby grants to you a non-exclusive, non-transferable license (the License) to use ECLIPSE® (the Software) with a database such that any two or more users will always access the exact same database and only one database exists on your computer. You are licensed to use the Software solely in your own health care practice and solely for the purpose for which the Software is intended.
TERM. The License shall terminate (1) if you violate any of the terms set forth under “Restrictions” below, (2) you fail to pay any license or subscription payments when due, (3) you make false public statements about the Software or engage in conduct we believe is detrimental to the reputation of the Software, or (4) you engage in a pattern of behavior regarding the Software we deem abusive (e.g., the use of threatening or profane language).
RESTRICTIONS. You may not (1) transfer or assign the License, (2) sublicense the Software or otherwise grant to third parties any interest in the Software, (3) decompile, reverse engineer, disassemble, or otherwise reduce the software to human perceivable form, (4) create derivative works from the Software, (5) modify the Software, (6) rent or lease the Software, (7) use the name or trademarks of MPN or ECLIPSE EHR Solutions, LLC (EES) or refer to the Software directly or indirectly in any papers, articles, advertisements, sales presentations, news releases or releases to any third party, (8) release the results of any performance or functional evaluation of the Software to any third party, (9) demonstrate the Software to third parties, (10) use the Software except in your own health care practice, or (11) use the Software for any purpose other than the purpose for which it is intended.
OWNERSHIP. MPN and EES own all of the copyrights, patents, and other intellectual property rights associated with the Software. You neither own any claim or right of ownership to the Software or to any associated intellectual property nor acquire any such claim or right by virtue of the License. The License is not a sale of the Software. Your interest in the Software is limited to the rights conveyed by the License. Upon the termination of the License you will have no interest in the Software.
LICENSE FEES. If you fail to pay any license fees when due, we may suspend or terminate your License without incurring any liability to you. You will also be responsible for any cost of collection we incur, including reasonable attorneys’ fees.
RESPONSIBILITY OF CUSTOMER. You are exclusively responsible for your use of the Software, including but not limited to (1) training your staff, (2) backing up your data, (3) implementing procedures and checks to ensure the accuracy of input and output, (4) maintaining a proper operating environment, including computers, networking equipment, software, cables, and an uninterruptible power supply, (5) advising us promptly of suspected errors in the Software, and (6) providing data we specify to enable us to verify and check the system when requested.
LIMITED SOFTWARE WARRANTY. MPN warrants that the Software will perform in accordance with its specifications for a period of ninety (90) days following the date of the original purchase. If the Software fails to perform in accordance with its specifications during such period, MPN will use reasonable diligence to correct the failure. This is your only remedy for the failure of the Software. MPN shall not be responsible for (1) user error, (2) lack of training, (3) conflicts between the Software and any hardware or other software, (4) defects or incompatibility in any aspects of your operating environment, including cables, hardware, power supply, or Internet connection, (5) defects in any other software, or (6) any problem other than the failure of the Software itself.
EXCEPT AS EXPRESSLY SET FORTH IN “LIMITED SOFTWARE WARRANTY,” THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. MPN AND EES EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE OR THE CUSTOMER’S PURPOSE, AND ANY WARRANTIES THAT MAY BE IMPLIED FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. YOU ASSUME ALL RISKS ASSOCIATED WITH USE OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO THE RISKS OF ERRORS, THE RISK OF LOSS OF OR DAMAGE TO DATA, THE RISK OF UNAVAILABILITY OR INTERRUPTION OF OPERATIONS, THE RISK OF INFECTION OF SOFTWARE VIRUSES, AND THE RISK OF SECURITY BREACHES.
THE AGGREGATE LIABILITY OF MPN AND EES FOR CLAIMS OF ANY NATURE SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE BY THE ORIGINAL PURCHASER. IN NO EVENT SHALL MPN or EES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF DATA, OR LOSS OF USE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY.
LAW. This End User License Agreement and all matters arising from your license and use of the Software shall be governed by New Jersey law without taking into account principles of conflicts of laws.
DISPUTES. Any dispute, difference, disagreement, or controversy arising from this End User License Agreement or your license and use of the Software shall be resolved by arbitration by and in accordance with the rules of the American Arbitration Association. Such arbitration shall take place in Camden County, New Jersey unless MPN agrees otherwise. Every award or determination of such arbitration shall be final and binding upon all of the parties. There shall be no appeal from such award or determination, and judgment thereon may be entered in any court of competent jurisdiction. Disputes shall not be subject to any “class action” procedures.
WAIVER. The failure of MPN or EES to insist upon performance of any of the provisions of this End User License Agreement or to pursue their rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights.
AMENDMENT. This End User License Agreement shall not be amended except by a written document that (1) is signed by you and MPN, and (2) refers explicitly to one or more of the provisions of this End User License Agreement and states the intention to amend such provision.