End User License Agreement

The following, together with the terms and conditions contained in the Quote or the Statement of Work that you have signed (each hereinafter a “Quote”) with Zen Healthcare IT, a California Corporation (“Zen”), which, among other things, identifies the Zen software that is being licensed to you (the “Zen Software”), constitute the agreement between you and Zen pertaining to your use of the Zen Software, and is referred to below as this “EULA”.

1.   Grant of Commercial Subscription Software License.

The license described in this section applies to Zen Software identified or described in a Quote. Zen hereby grants you a non-exclusive, non-transferable, non-assignable, non-sublicensable license (“Subscription License”) to use, subject to Section 13 (Termination of Agreement) below, the object code of Zen Software identified in the Quote on a server owned or leased and controlled by you.

2.   Authorized Use.

The Subscription Licenses granted herein are subject to the limits of use set forth in the applicable Quote (the “Limits”). The rights and licenses granted to you with respect to the Zen Software are limited to those expressly stated in this EULA, and no other rights or licenses shall arise by implication or otherwise. It shall be a material breach of this EULA for you to use the Zen Software other than as expressly authorized by this EULA.

3.   Restrictions on Distribution and Copying.

During the License Term, hereinafter defined, for Zen Software, you are authorized to create only as many copies of such Zen Software as are strictly necessary to support the Limits of use authorized. Unless expressly authorized in writing by Zen, Zen Software may not be distributed to any other person or entity. Any such distribution shall be deemed a copyright infringement as well as a material breach of this EULA.

4.   Limits Based on Production Instances.

An “Instance” is a single installation of Zen Software running on a single physical or virtual server you provide. A “Production Instance” is used to serve the primary purpose for which you have purchased a license to use the Zen Software. Examples of a Production Instance include, but are not limited to, the primary system housing or handling live production data; a secondary system used for reporting purposes; and an additional active system used to distribute or segregate load. A “Non-Production Instance” is an additional installation of Zen Software used to directly support one or more Production Instances. Examples of a Non-Production Instance include, but are not limited to, a system used to test or stage software configurations or interfaces prior to deployment to a Production Instance; a system used to develop interfaces, plugins, or components for use in a Production Instance; a passive standby or failover system used to provide high availability to a Production Instance; and a demo or training system used to prepare users of a Production Instance. You may make a reasonable number of copies of Zen Software for use as Non-Production Instances for no additional fee.

5.   Limits Based on Accounts.

Some Zen Software is licensed based on a number of users, physician-users, or accounts (“Accounts”). An Account Limit represents the maximum number of Accounts allowed under the license. If at any time during the License Term your use of the Zen Software will exceed the Account Limit, you must immediately contact Zen and secure an appropriately sized license or reduce the Accounts in use in the Zen Software.

6.   Prohibition on Decompiling, Modifying, et al.

You may not translate, reverse engineer, decompile or disassemble the Zen Software. You may not make any modifications or additions to the Zen Software without Zen’s prior written consent.

7.   Delivery.

You may obtain the Zen Software by electronically downloading the Zen Software from Zen, receive the Zen Software directly from Zen or an authorized Zen Software provider, or by performing an authorized software update using services provided by Zen. All Zen Software shall be deemed delivered upon download, copying, or receipt from Zen.

8.   Agreement Term.

This EULA shall remain in effect with respect to each Zen Software Product for the period of time (“License Term”) indicated for that Zen Software in an approved Quote.  This EULA shall terminate with the expiration of the License Term for all the associated Zen Software, subject to earlier termination as provided in Section 13 (Termination of Agreement) below.

9.   Limited Warranty and WARRANTY DISCLAIMER.

ALL ZEN SOFTWARE PROVIDED HEREUNDER IS PROVIDED “AS IS”. Zen expressly warrants that it is the owner or licensee of Zen Software, including any and all copyrights and trade secrets, and has the right and authority to enter into this EULA in accordance with the terms herein. EXCEPT AS MAY BE PROVIDED IN ANOTHER WRITTEN AGREEMENT BETWEEN ZEN AND YOU, THE FOREGOING WARRANTY IS EXCLUSIVE OF ALL OTHER WARRANTIES, whether written, oral, express or implied, INCLUDING BUT NOT LIMITED TO any warranty of non-infringement of third-party patent rights and the implied warranties of merchantability or fitness for a particular purpose. ZEN DOES NOT WARRANT that the Zen Software will meet your requirements, or that the operation thereof will be uninterrupted or error-free.

10. Audit.

During the License Term and for one (1) year thereafter, upon fourteen (14) days advance written notice, Zen or Zen’s representative may perform reasonable audit and inspection to confirm that you are in compliance with the terms and conditions of this EULA. You shall reasonably cooperate in any such inquiry and you may escort or observe Zen during the performance of the audit. You shall pay any underpayment at Zen’s then current rate and within thirty (30) days.

11. LIMITATION OF LIABILITY.

EXCEPT AS MAY BE PROVIDED IN ANOTHER WRITTEN AGREEMENT BETWEEN ZEN AND YOU, IN NO EVENT SHALL ZEN BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR CONTINGENT DAMAGES INCLUDING LOSS OF PROFITS, EVEN IF ZEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ZEN SHALL NOT BE LIABLE FOR DIRECT DAMAGES IN ANY AMOUNT GREATER THAN THE FEES YOU PAID TO ZEN FOR THE ZEN SOFTWARE DURING THE PREVIOUS TWELVE (12) MONTHS. THE FOREGOING LIMITATIONS SHALL APPLY WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR ANY OTHER THEORY.

12. Proprietary Rights.

You recognize and acknowledge Zen’s ownership of the Zen trademark and of Zen’s copyrights, patents, trademarks, trade secrets, and any other intellectual property and proprietary rights of any kind in any jurisdiction pertaining to or embodied in Zen Software or on Zen’s website. You shall not remove from any copies of the Zen Software any copyright notice or other proprietary notice of Zen appearing thereon, and shall include such copyright and other notices at the appropriate place on each copy of the Zen Software made by you. Zen hereby agrees that any data collected by you using Zen Software shall be and remain your intellectual property.

13. Termination of Agreement.

Either party may terminate this EULA and the licenses granted hereunder upon written notice for any material breach of this EULA that the other party fails to cure within thirty (30) days following written notice specifying such breach. In the event of expiration or termination of this EULA for any reason, all rights granted hereunder shall automatically terminate, except as specified in another written agreement between the parties. The termination or expiration of this EULA shall not, however, relieve either party from any obligation or liability that has accrued under this EULA prior to the date of such termination or expiration. The provisions of Sections 9 (Limited Warranty and WARRANTY DISCLAIMER), 10 (Audit), 11 (LIMITATION OF LIABILITY), 12 (Proprietary Rights), this Section 13, and Section 18 (General) will survive the expiration or termination of this EULA for any reason.

14. U.S. Government Customers and End Users.

Any Zen Software or related materials are “commercial items” as that term is defined in 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1, 227.7202-3 and 227.7202-4, if the end user hereunder is the U.S. Government or any agency or department thereof, any Zen Software and related materials are licensed (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users and customers pursuant to the terms and conditions of this EULA.

15. Severability.

If the application of any provision or provisions of this EULA to any particular set of facts or circumstances is held to be invalid or unenforceable by a court of competent jurisdiction, the validity of said provision or provisions to any other particular set of facts or circumstances shall not, in any way, be affected. Such provision or provisions shall be reformed without further action by the parties to the extent necessary to make such provision or provisions enforceable when applied to that set of facts or circumstances.

16. Amendment and Waiver.

This EULA may not be modified or amended except in a writing signed by a duly authorized representative of each party. The waiver by either party of any of its rights or remedies hereunder shall not be deemed a waiver of such rights or remedies in the future unless such waiver is in writing and signed by an authorized officer of such party. Such a waiver shall be limited specifically to the extent set forth in said writing.

17. Assignment.

You may not assign this EULA or any right or obligation hereunder, without Zen’s prior written consent, which shall not be unreasonably withheld. However, you may assign this EULA in the event of a merger or consolidation or the purchase of all or substantially all of your assets. This EULA will be binding upon and inure to the benefit of the permitted successors and assigns of each party.

18. General.

This EULA and any related Quote(s) constitute the exclusive terms and conditions with respect to the subject matter hereof. You acknowledge that irreparable harm may result to Zen by your breach of this EULA, which damages may not be adequately compensable monetarily and, as a result, you agree that injunctive relief may be obtained by Zen in the event of the breach or threatened breach by you of any of the obligations imposed on you by this EULA. In any action pertaining to this EULA, the prevailing party shall be entitled to recover costs and reasonable attorneys’ fees, in addition to any other relief to which the prevailing party may be entitled.