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End User License AgreementNutrabalance software is available through Total Health Enterprises, Inc. for PC compatibles, Windows 95/98 or Windows 3.1 systems. The End User License Agreement found below is required with any software purchase from Nutrabalance. This Agreement can be faxed to Nutrabalance care of Total Health Enterprises at (303)-494-7887 or it can be mailed to us at Total Health Enterprises - 4740 Table Mesa Drive, Suite B - Boulder, CO 80305. TOTAL HEALTH ENTERPRISES, INC., a Colorado corporation (hereinafter "Licensor"), for good and valuable consideration, hereby grants a nonexclusive license to: _____________________________, (hereinafter "Licensee"), to use the Software described on the Software Schedule attached hereto, subject to the terms and conditions hereof (hereinafter "License"). 1. GRANT OF LICENSE A. Licensor grants to Licensee a nonexclusive, nontransferable License to use Proprietary Software pursuant to this Agreement, solely within the United States and solely for Licensee's own use in its internal operations. Said License shall be in effect in perpetuity. The Software is not sold hereunder and constitutes proprietary information and embodies trade secrets of Licensor. Title to and full ownership of the Software including any modifications or revisions thereto shall at all times remain in Licensor. Licensee agrees to pay a License fee to Licensor in accordance with the provisions contained in Section 3 hereof and the Schedule attached hereto, which License fee shall entitle Licensee to use of the Software at one (1) site identified herein. B. Licensee shall have the right to License the Software for an additional site or sites, subject to Licensor's consent and the payment of an additional License fee. Such additional site or sites shall be identified on the Additional Site Addendum. Licensee warrants and represents that any additional sites shall be under the control of Licensee and that the use of the Software at such additional site shall be subject to all of the terms and conditions of this Agreement. C. The Software shall be used only for Licensee's own business and internal operations. Under no circumstances may Licensee utilize the Software to provide services to others. As used in this Agreement, the term "Licensee" shall include affiliates of Licensee. For purposes of this Agreement, affiliate shall mean an entity that directly or indirectly, through one or more intermediaries, controls or is controlled by Licensee, or is under common control with Licensee, so long as, but only so long as, such control exists. D. The License granted herein includes no right to copy the Software for any reason other than for personal backup purposes. E. Licensee (1) shall treat the Software as confidential information which is proprietary to Licensor, and not make any part thereof available to others; and (2) shall promptly return to Licensor all materials associated with the Software upon termination of this License. F. Licensee shall not itself, nor shall Licensee permit or allow others, other than Licensor, to copy other than for personal backup purposes, remove, disassemble, modify or in any way tamper with Software for any reason. Licensee further agrees that it shall neither reverse assemble nor decompile the Software, in whole or in part. G. In the event Licensee should breach this Agreement, or cause, permit or suffer the removal, disassembly, reverse assembly, decompilation of, modification of, or tampering with, the Software, Licensor may at its option do any or all of the following: (1) immediately terminate this License as to all or part of the Software; (2) enter Licensee's premises and remove the Software and the documentation associated therewith; (3) at Licensee's expense, reconfigure Licensee's system to that last configured by Licensor; or (4) enjoin Licensee from further breach or use of the Software. 2. TITLE AND PROTECTION OF SOFTWARE The Software, any modifications thereto, all programs developed hereunder and all copies thereof are proprietary to Licensor and title thereto remains in Licensor. All applicable rights to patents, copyrights, trademarks and trade secrets in the Software or any modifications made at Licensee's request are and shall remain in Licensor. Licensee shall not sell, license, transfer, publish, disclose, display or otherwise make available the Software or copies thereof to others. Licensee agrees to secure and protect the Software, documentation and copies thereof and to take appropriate action by instruction or agreement with its employees or consultants who are permitted access to the Software to satisfy its obligations hereunder. Violation of any provision of this paragraph shall be the basis of immediate termination of this Agreement. In the event of any breach or violation of the provisions of this paragraph, the parties hereto agree that injunctive relief may be obtained, in addition to any other remedies. The obligations set forth in this paragraph shall survive the cancellation of this Agreement. 3. FEES AND PAYMENT Licensee shall make payment to Licensor for the Software License pursuant to the fees and in the manner set forth on the attached Schedule. Licensee acknowledges that payment due Licensor for License Fees are independent obligations of Licensee. 4. MAINTENANCE A. Nothing in this Agreement shall be construed to entitle Licensee to any support or maintenance for the Software other than for installation for a period of 90 days from the date of purchase. B. Support and maintenance of the Software may be obtained by Licensee from Licensor by entering into a separate Maintenance Agreement. 5. WARRANTY AND DISCLAIMER A. Licensor represents that the Software will conform, as to all substantial operational features, to the current published specifications therefor when installed and properly used in the operating environment approved by Licensor prior to installation, and will be free of defects under normal use and circumstances which substantially affect the performance thereof for a period of ninety (90) days from the date of delivery of Software. B. Licensee must notify Licensor in writing, within ninety (90) days from the date of delivery of the appropriate Software of its claim of any defect. If the Software is found defective by Licensor in a manner which substantially affects system performance, Licensor's sole obligation under this warranty is to remedy such defect in a manner consistent with Licensor's regular business practices. C. THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY LICENSOR. EXCEPT AS IS EXPRESSLY SET FORTH HEREIN, LICENSOR MAKES NO WARRANTY, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ACCEPTS THE ENTIRE RISK AS THE SELECTION AND USE OF THE SOFTWARE. LICENSOR DISCLAIMS THAT THE SOFTWARE WILL MEET ANY OF THE LICENSEE'S PARTICULAR REQUIREMENTS OR THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE AS A RESULT OF FORCE MAJEURE; Total Health Enterprises, Inc. shall not be liable for failure to perform or for delay in performance due to any Uncontrollable Circumstances. "Uncontrollable Circumstances" shall mean any act, event or condition which substantially precludes performance by the software if such act or event is beyond the reasonable control of and is not the result of willful or grossly negligent action or omission by Total Health Enterprises, Inc.. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR THE LOSS OR NON-RECOVERABILITY OF ANY DATA OR STORED INFORMATION. D. This warranty shall not apply if modifications to the Software are made by Licensee. If difficulties or defects are traceable to Licensee's errors or systems changes, any repairs or corrections made by Licensor may, at Licensor's discretion, be billed at Licensor's standard time and material charges. E. This warranty is conditioned upon: (1) Licensee's proper use, management and supervision of the Software for which it is Licensed; (2) the use with the Software of supplies approved by Licensor; (3) a suitable installation environment for the Software as defined by Licensor; and (4) the absence of any intentional or negligent act or other cause external to the Software affecting operability or serviceability. Said warranty shall be null and void if, without the prior written approval of the Licensor, there shall be any modification or maintenance performed on the Software other than by Licensor. Licensor shall be given free access to the Software to perform service pursuant to this Warranty. 6. LIMITATION OF LIABLIITY A. LICENSOR SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE BREACH OF ANY WARRANTY (EXCEPT AS PROVIDED FOR HEREIN), NEGLIGENCE, OR OTHERWISE OR FOR ANY OTHER OBLIGATION OR LIABILITY ON ACCOUNT OF THE SOFTWARE, THIS AGREEMENT, OR WHICH ARISES OUT OF ANY ACT OR OMISSION OF LICENSOR, ITS AGENTS OR ASSIGNS. B. IN NO EVENT SHALL LICENSOR BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR ANY REASON, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS. C. LICENSOR SHALL HAVE NO LIABILITY TO ANY THIRD PARTIES ARISING FROM THE USE BY LICENSEE OF THE SOFTWARE; AND LICENSEE AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR FROM ANY LIABILITY TO ANY THIRD PARTIES WHICH MAY ARISE DIRECTLY OR INDIRECTLY FROM LICENSEE'S USE OF THE SOFTWARE. D. LICENSEE UNDERSTANDS THAT RECOMMENDATIONS MADE BY COMPUTERIZED TECHNOLOGY ARE INTENDED SOLELY TO BE EDUCATIONAL TO THE PATIENT AND INFORMATION AS TO THE HEALTH CARE PROVIDER, AND ARE NOT INTENDED TO CONSTITUTE OR BE A SUBSTITUTE FOR PROPER MEDICAL DIAGNOSIS OR TREATMENT. SUCH COMPUTERIZED RECOMMENDATIONS ARE NOT INTENDED OR DESIGNED TO REPLACE TRADITIONAL METHODS OF MEDICAL TREATMENT. LICENSEE ACKNOWLEDGES THAT LICENSOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY HEALTH CARE TREATMENT AND THAT THE RESPONSIBILITY FOR HEALTH CARE TREATMENT LIES SOLELY WITH THE HEALTH CARE PRACTITIONER. E. EXCLUDED FROM THE FOREGOING DISCLAIMERS ARE ANY OBLIGATIONS OR DUTIES WHICH CANNOT BE DISCLAIMED BY LAW OR PURSUANT TO ANY STATUTE OR WHICH CANNOT BE MUTUALLY ALLOCATED BETWEEN THE PARTIES. IN SUCH EVENT LICENSOR'S LIABILITY FOR DAMAGES TO LICENSEE FOR ANY CAUSE WHATSOEVER REGARDLESS OF THE CLAIM OR FORM OF ACTION WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE, SHALL BE LIMITED TO THE TOTAL PRICE PAID HEREUNDER FOR THE SPECIFIC SOFTWARE WHICH IS THE SUBJECT OF THE CLAIM OR CAUSE OF ACTION. 7. PATENTS & COPYRIGHTS A. Licensor will defend, at its own expense, any action brought against Licensee to the extent that it is based on a claim that the Software infringes a valid United States patent or copyright and Licensor will pay those costs and damages finally awarded against Licensee which are attributable to such claim, on condition that: (1) Licensor shall be notified promptly in writing of any such action and any related claim; (2) Licensor shall have the sole control of the defense including the right to select counsel and compromise claims; and (3) should the Software become, or in Licensor's opinion be likely to become, the subject of a claim of infringement of a United States patent or copyright, that Licensee shall permit Licensor, at Licensor's sole option and expense, to procure for Licensee the right to continue using the Software to replace or modify the same so that the Software becomes noninfringing, or to terminate the License Agreement. B. Licensor shall not have any liability to Licensee under any provision of this Section with respect to any claim of patent or copyright infringement which is based upon (1) the combination or utilization of the Software with software, equipment or devices not furnished by Licensor, or (2) the modification of the Software. C. The foregoing states the entire liability of Licensor with respect to infringement of patents and copyrights and its Licensee's sole and exclusive remedy for any such infringement. 8. CONFIDENTIALITY Licensee agrees to maintain all confidential or proprietary information of Licensor in confidence whether the same is in tangible or intangible form and will not disclose or permit Licensee's employees to disclose to anyone outside of Licensee's organization any such information. The obligation of preserving confidentiality shall survive termination of this or any other agreements until (1) the information or data has entered the public domain; (2) the information or data is obtained from a third party without breach of any duty of confidentiality; (3) the information or data is publicly disclosed by Licensor, or (4) Licensor consents in writing to such disclosure. Trade secrets or other proprietary information or data, for the purpose of this paragraph, shall mean such information or data which is marked as private, sensitive, proprietary or as a trade secret or is otherwise known or made known to Licensee as being either private, sensitive, proprietary or a trade secret of Licensor, and includes specifically but is not limited to, processes, circuit diagrams, circuit boards, inventions, software, firmware, formulae, customers, suppliers, manuals and specifications. A. In the event of any breach of this Agreement the breaching party agrees to pay liquidated damages in the amount of $50,000 to Joseph R. Montante M.D., the disclosing parties. 9. NON-CONSUMER The parties agree that Licensee shall not be deemed a consumer as defined by any federal or state act and that the goods or services or both provided for herein are not covered as consumer goods or services under any consumer act or covered by any trade practices act. The parties agree that no claims arising out of the License of Software shall be made pursuant to such acts and that each will rely on the remedies provided for in this Agreement as a mutually agreeable allocation of risk upon which the benefit of this Agreement is based. 10. GENERAL A. This Agreement including attachments, supersedes all proposals and other prior communications relating to the License of the Software, and constitutes the full understanding between Licensor and Licensee with respect to such subject matter. B. In the event that either party shall institute any proceedings, legal or otherwise, against the other for violation or breach of the Terms or Conditions of this Agreement, it is agreed that whichever party shall prevail in any such action shall recover from the other party all court costs including reasonable attorney's fees incurred in connection with such proceedings. C. This Agreement may not be modified, amended or altered except by a written instrument duly executed by the parties. D. This Agreement, and any action arising out of or related to it, shall be governed in accordance with the laws of the State of Colorado. This Agreement shall be binding upon and for the benefit only of the parties hereto and their respective successors and permitted assigns. Licensee may assign this Agreement and any of its rights, duties or obligations hereunder only with the prior written consent of Licensor. E. All software license sales are final. Due to the proprietary nature of expert diagnostic software, no refunds will be allowed after software has been delivered. The parties hereto agree to the terms and conditions set forth herein and on the following pages of this document.
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Nutrabalance |
Phone: 800-468-7903 |