ProcoderDV™ Student License

This End User License Agreement (the “Agreement”) by and between VANDERBILT UNIVERSITY, a Tennessee non-profit corporation, having its principal place of business at 1207 17th Avenue South, Suite 105, Nashville, Tennessee 37212 (“Vanderbilt”), and You (“Customer”) constitutes a legally binding agreement and governs your and your organization’s use of the Software (as defined below).

1. Definitions.

1.1 “Confidential Information” means the object code, documentation and functionality of the Software.

1.2 “License Fee” means the fee paid by Customer in U.S. dollars as set forth in the official distribution website for the license granted and Software support provided in accordance with the terms and conditions set forth in this Agreement. Customer is responsible for any and all taxes.

1.3 “Software” means the Procoder Observational Software (“Procoder™”) licensed by Vanderbilt to Customer, including future releases and updates and all associated documentation.

1.4 “Hardware” means the computer workstations, peripherals, modems and other equipment for operating the Software which must meet the following minimum requirements: (i) 1.0 GHz or higher Intel® Pentium processor; (ii) Windows 7 or higher (iii)  2 GB of RAM; and (iv) 500 MB of available hard disk space.

2. Software License; Restrictions.

2.1 License. Subject to the terms and conditions of this Agreement and payment of the License Fee, Vanderbilt hereby grants to Customer, and Customer hereby accepts, a limited, non-transferable, non-exclusive right and license to use the Software subject to the restrictions set forth in this Agreement and for the term of the Agreement. The Software provided hereunder and all copies thereof are proprietary to Vanderbilt and title thereto remains in Vanderbilt. Other than the rights in and to the Software granted to Customer hereunder, Customer acquires no rights in the Software, including patents, copyrights, trademarks and trade secrets, if any, embodied therein. Customer acknowledges and agrees that Vanderbilt claims that the Software contains valuable proprietary information and trade secrets developed or acquired by Vanderbilt. Customer shall secure and protect the Software in a manner consistent with the maintenance of Vanderbilt’s rights therein and to take reasonable action by instruction or agreement with its employees or independent contractors who are permitted access to the Software to satisfy its obligations hereunder. Vanderbilt has not provided Customer with a copy of, and Customer acquires no rights of any kind with respect to, the Software source code.

2.2 Restrictions on Use. Customer may use one (1) copy of the Software for one user. Each user within a department shall pay a separate license fee. Additionally, Customer may make one copy of the Software for: (i) archival or backup purposes; and (ii) on a computer server that may be accessed by multiple independent users, for training purposes but users may not copy the Software. Customer shall not do or attempt to do any of the following: (i) modify, adapt, merge, decompile, disassemble or reverse engineer the Software or any part thereof (or otherwise attempt to create or divulge any related source code); (ii) create derivative works based on the Software; (iii) utilize the Software in any closed loop system, which provides medical care without human intervention; (iv) make copies of the Software or share or disclose any applicable passwords or access codes to the Software, except as otherwise permitted herein; (v) sublicense, rent, lease, lend, export or otherwise transfer the Software to any third party or to use in any country where prohibited by applicable law; (vi) provide remote processing or service bureau services utilizing the Software; (vii) allow any unauthorized third party to implement, access, or operate the Software; or (viii) remove or permit to be removed any labeling required by applicable U.S. law or other proprietary, confidential, or copyright notices, markings, or legends. Customer shall only use the Software in accordance with applicable federal, state and local laws and regulations. Customer agrees and acknowledges that the Software requires the Customer to exercise independent, clinical judgment in the delivery of patient care. Customer further agrees that nothing in the Software or anything else provided pursuant to this Agreement constitutes or is intended to be professional medical advice or a substitute for medical knowledge or judgment. Vanderbilt assumes no liability or responsibility for the decision to provide a particular treatment, instruction or prescription to a particular patient. Customer shall defend, indemnify and hold Vanderbilt and its officers, trustees, faculty, staff, employees, students, agents and their respective successors or assigns harmless from and against all claims, liabilities and expenses (including reasonable attorneys’ fees) related to any third-party claims against Vanderbilt and its successors or assigns with respect to the matters set forth in this Section 2.2. This indemnification obligation shall survive the termination or expiration of this Agreement.

3. Limited Support; Updates.

Payment of the License Fee entitles Customer to reasonable assistance by email and access to updates and new releases of the Software, which Vanderbilt may make available from time to time within its sole discretion (“Limited Support”). Limited Support is provided by e-mail queries to “jon.tapp@vanderbilt.edu” or other contact point as may be designated by Vanderbilt from time to time. Vanderbilt may, without notice, discontinue such support. In order for Customer to receive the Limited Support set forth herein, Customer must be using the latest version and all current releases and updates of the Software on the Hardware. If Vanderbilt develops new versions of the Software, the new versions will be available to Customer upon payment of additional fees. Limited Support does not include responding to Customer if, in Vanderbilt’s reasonable opinion, Customer fails to provide sufficient information, as reasonably requested by Vanderbilt, to enable Vanderbilt to identify, reproduce and analyze the reported problem; Vanderbilt reserves the right to charge additional fees for such support.

4. Limited Warranty; Disclaimers; Limitations of Liability.

4.1 Limited Warranty. EXCEPT AS STATED IN THIS SECTION 4.1, THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY, Vanderbilt warrants that it has the authority to grant the licenses contained in this Agreement. This warranties shall remain in effect provided: (i) Customer has not improperly installed, maintained, configured, altered or used the Software; (ii) Customer has complied with all configuration requirements; and (iii) Customer is not in breach of any provision of this Agreement.

4.2 Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY SET FORTH IN SECTION 4.1 IS IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS. VANDERBILT DOES NOT MAKE AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE AND SUPPORT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER VANDERBILT KNOWS OR HAD REASON TO KNOW OF CUSTOMER’S PARTICULAR NEEDS. NO EMPLOYEE, AGENT, DEALER OR DISTRIBUTOR OF VANDERBILT IS AUTHORIZED TO MODIFY THE LIMITED WARRANTY, OR TO MAKE ANY ADDITIONAL WARRANTIES. SOME COUNTRIES AND STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY OR STATE TO STATE.

4.3 Limitation of Liability. Vanderbilt’s entire liability and Customer’s exclusive remedy for a breach of this Agreement shall be termination of this Agreement by returning or destroying the Software and Vanderbilt refunding the License Fee. Vanderbilt shall have no liability for consequential, exemplary, indirect, special or incidental damages whether based on contract, tort or any other legal theory, arising out of or related to this Agreement or the inability to use the Software or Limited Support, nor shall Vanderbilt be liable for any loss of data or lost profits of Customer, even if Vanderbilt is apprised of the likelihood of such damages occurring. Vanderbilt’s total liability under this Agreement for any reason shall not exceed the amount of the License Fees paid under this Agreement. Customer acknowledges and agrees that licensing the Software for the License Fees under this Agreement reflects the allocation of risks expressed by (but not limited to) the above limitations of liability. Modification of such allocation would affect the License Fees charged by Vanderbilt, and in consideration of Vanderbilt charging the License Fees, Customer agrees to such allocation of risks. SOME COUNTRIES OR STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY.

5. Confidentiality.

Customer may only use the Confidential Information solely for its intended purpose. Customer shall not disclose the Confidential Information except to those persons having a need to know for purposes authorized in this Section 5. Customer shall take appropriate action, by instruction to or agreement with its employees, agents and subcontractors, to maintain the confidentiality of the Confidential Information. Customer shall promptly notify Vanderbilt in the event that the Customer learns of an unauthorized release or use of Confidential Information. The parties acknowledge that monetary remedies may be inadequate to protect rights in Confidential Information and that, in addition to legal remedies otherwise available, injunctive relief is an appropriate judicial remedy to protect such rights. Customer shall provide reasonable assistance and cooperation upon the reasonable request of Vanderbilt in connection with any litigation against third parties to protect the Confidential Information, provided that Vanderbilt shall reimburse the Customer for its reasonable out-of-pocket expenses.

6. Assignment.

Customer shall not assign or transfer this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Vanderbilt. Vanderbilt may assign its rights or obligations hereunder without the consent of or notice to Customer. This Agreement shall inure to the benefit of and bind successors and permitted assigns of Vanderbilt and Customer.

7. Term; Termination; Survival.

7.1 Term; Termination. This Agreement shall become effective on the date the Customer downloads the Software (as reflected by Vanderbilt’s records) (“Effective Date”) and shall terminate the earlier of: (a) one (1) year from the Effective Date whereupon this license shall automatically terminate or (b) upon voluntary termination by either party and/or as provided in this Agreement. Customer may terminate this Agreement at any time by destroying all copies of the Software in its possession and notifying Vanderbilt. This Agreement will also automatically terminate if Customer fails to comply with any term or condition of this Agreement.

7.2 Obligations upon Termination. Upon termination of this Agreement, the license granted to Customer shall immediately terminate and Customer shall: (i) promptly return to Vanderbilt all copies of the Software and all documentation associated therewith; (ii) immediately discontinue any and all use of the Software; (iii) immediately erase, remove or destroy from any and all equipment all electronic or machine-readable copies of the Software; (iv) certify in writing to Vanderbilt that Customer has completed the foregoing and that no copies of the Software exist in Customer’s possession or control and Customer has complied with Customer’s obligations set forth in this Agreement; and (v) comply with its obligations set forth in this Agreement. Termination of this Agreement shall not limit either party from pursuing other remedies available to it (to the extent such other remedies are not expressly limited hereunder), including injunctive relief.

7.3 Survival. Sections 4.2, 4.3, 5 7.3 and 8 and any provision of this Agreement related to confidentiality or which by its terms provides for survival shall survive the expiration or termination of this Agreement.

8. General Provisions.

8.1 Notices. All notices required or permitted relating to a claim or breach of this Agreement shall be in writing and sent to: (i) if to the Customer: the address provided by Customer when ordering the Software; and (ii) if to Vanderbilt: Peter C. Rousos, Office of Technology Transfer and Enterprise Development, Vanderbilt University, 1207 17th Avenue South, Suite 105, Nashville, Tennessee 37212 with a copy to: General Counsel’s Office, Vanderbilt University, 2100 West End Ave., Suite 750, Nashville, Tennessee 37203 . Either party may substitute their address from time to time by written notice to the other and shall be deemed validly given upon receipt of such notice given by certified mail, postage prepaid, or personal or courier delivery. All Limited Support or other notices relating to the usage of the Software will be provided by Vanderbilt either via telephone or e-mail.

8.2. Governing Law; Severability. This Agreement and performance hereunder shall be governed and construed in accordance with the laws of the U.S. and of the State of Tennessee, without giving effect to provisions thereof regarding conflict of laws. Each party hereto hereby submits to the exclusive jurisdiction of the United States District Court for the Middle District of Tennessee and of any Tennessee state court sitting in Nashville, Tennessee for the purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. Each party hereto irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. All agreements, clauses and covenants contained herein are severable, and in the event any of them shall be held to be unconstitutional, invalid, illegal, or unenforceable, the remainder of this Agreement shall be interpreted as if such unconstitutional, invalid, illegal or unenforceable agreements, clauses or covenants were not contained herein.

8.3. Integration; Waiver; Modification. The parties hereto acknowledge and agree that they have read this Agreement in its entirety and understand and agree to be bound by all of its terms and conditions, and further agree that this Agreement and any exhibits or schedules hereto constitute a complete and exclusive statement of the understanding between the parties with respect to the subject matter hereof, which supersede any and all other communications between the parties, whether written or oral. Any prior agreements, promises, negotiations or representations related to the subject matter hereof not expressly set forth in this Agreement, or any exhibits or schedules hereto, are of no force and effect. The failure by either party to exercise any right provided hereunder shall not be deemed a waiver of such right. This Agreement may be amended, modified or supplemented only by a writing signed by the parties to this Agreement. Such amendments, modifications or supplements shall be deemed as much a part of this Agreement as if so incorporated herein.

8.4. Independent Contractor. Nothing contained in this Agreement shall be construed to create a joint venture or partnership between the parties.

8.5. Force Majeure. Neither party hereto shall be liable for any failure or delay in performance of its obligations hereunder by reason of any event or circumstance beyond its reasonable control, including without limitation, acts of God, war, terrorism, riot, strike, labor disturbance, fire, explosion, flood, or shortage or failure of suppliers.

8.6 Compliance with Laws. Vanderbilt and Licensee will comply with all federal, state and local laws and regulations, as amended from time to time, applicable to such party’s performance of its obligations under this Agreement, including all applicable export controls and economic sanctions laws and regulations of the United States and other applicable jurisdictions. Further, because the provision of a “service” under U.S. economic sanctions is generally prohibited without a license, Vanderbilt will block the IP addresses of persons located in Iran, Syria, Republic of Sudan, Cuba, North Korea or any other country to which the provision of such services is prohibited and will take reasonable steps to exclude participation of persons identified on the U.S. Treasury Department’s List of Specially Designated Nationals, Blocked Persons and Foreign Sanction Evaders, except as licensed otherwise authorized by the U.S. Government.

8.7 U.S. Government End-Users. The Software is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End-Users acquire the Software with only those rights set forth herein.

8.8 Licensee Outside the U.S. If Customer is located outside the U.S., then the provisions of this Section 8.8 shall apply: (i) Les parties aux presentes confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui s'y rattache, soient rediges en langue anglaise. (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); and (ii) Customer is responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Software, and Customer represents that it has complied with any applicable laws and regulations or registration procedures required by applicable law to make this Agreement enforceable.