End User License Agreement for OGiTiX Software

This End-User License Agreement (the “Agreement”) effective on the date when signed by the last party (“Effective Date”) is made by and between Imprivata OGiTiX GmbH, Hans-Böckler-Str. 12., 40764 Langenfeld, Germany (“OGiTiX”) and _______________________, with its offices at _________________________ (“you” or “your”). This Agreement is a legal agreement between you and OGiTiX for the OGiTiX software (together with all updates, enhancements, printed materials and “online” or electronic documentation provided to you, the “Software”) to be installed on an Appliance or a Computer. The Software may be provided with additional Third Party Code which interoperates with the Software but which is not a part of the Software and is not licensed hereunder. To use such additional Third Party Code you must accept any licensing terms separately provided for such Third Party Code. Any terms and conditions in a purchase order (or in any similar document) which are in addition to, or conflict or are inconsistent with these terms are hereby rejected and superseded by the terms contained herein. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold.

Definitions

“Appliance” means virtual (or otherwise emulated) appliance distributed by OGiTiX that uses virtual processors.

“Authentication(s)” means a biometric scan which may be used to authenticate an individual as measured by the Site Monitor tool distributed by OGiTiX. Authentications shall not include biometric scans deemed unusable by the Site Monitor tool to identify an individual including partial, unfocused or otherwise unsuitable biometric scans.

“Clinic(s)” means any healthcare facility, external to an inpatient acute care facility, delivering healthcare services that do not contain Licensed Beds.

“Confirm ID” means proprietary secure signing solution distributed by OGiTiX for electronic prescribing of controlled substances (EPCS) which includes a comprehensive platform for provider identity proofing, supervised enrollment of credentials, two factor authentication, and auditing.

“Device” means a OGiTiX supported mobile or medical device as specified on then-current OneSign or Confirm ID Supported Components guide provided by OGiTiX, respectively. A separate license must be purchased for each device utilizing the Software, regardless of whether the device is actively utilizing the Software at any given time (i.e. the Software is not licensed on a concurrent device basis).

“Enterprise Access” means proprietary software distributed by OGiTiX for third party access management.

“Identity Governance” means proprietary software distributed by OGiTiX for automating the provisioning and de-provisioning of user accounts.

“Licensed Beds” means each of the beds in the applicable Named Hospital which have been licensed in accordance with applicable law.

“Managed Identity” or “Managed Identities” means an employee, independent contractor, consultant, and/or outsourced worker, administrator and service users whose user account is in your directory and other applications managed by Imprivata Identity Governance solution distributed by OGiTiX.

“Named Hospital” means each named hospital wholly owned by you or controlled by you containing Licensed Beds as specifically set forth (i) in the applicable OGiTiX Quote or its equivalent if purchasing through an authorized reseller and/or (ii) as indicated in PatientSecure Management Tool (Admin Console). For purposes herein “control” means (i) the power to elect a majority of the directors or similar officers of an entity, or (ii) the power by contract to operate or manage the day-to-day operations of a health care facility.

“Non-Clinical User” is a named individual authorized by you to use the Software (as indicated in the applicable OGiTiX Quote or its equivalent if purchasing through an authorized reseller) to provide services for or on behalf of you but does not provide healthcare to patients and at no time uses the Software to access your electronic medical record system. A separate license must be purchased for each user who uses the Software, regardless of whether the user is actively using the Software at any given time (i.e. the Software is not licensed on a concurrent user basis).

“OGiTiX Quote” means the supplemental document issued by OGiTiX, which specifies the Products and Services and any applicable Third Party Software and/or Hardware to be purchased by you, and the price associated with each.

“OneSign” means any or all of the following proprietary secure signing software programs distributed by OGiTiX (as applicable); (i) Single Sign On (SSO), (ii) Authentication Management (AM) and (iii) Single Sign On/Authentication Management (SSO/AM).

“OneSign Options” means any or all of the following proprietary OneSign option modules distributed by OGiTiX: (i) Self Service Password Management Software (SSPW), (ii) Finger Biometric Identification (FBID), (iii) Vasco Authentication (Vasco), (iv) Proximity Aware, (v) Virtual Desktop Access (VDA) and (vi) Mobile Device Access (MDA).

“PatientSecure” means proprietary biometric identification management system software program distributed by OGiTiX.

“Privileged Access Management” means any or all of the following proprietary password management solutions distributed by OGiTiX (as applicable): (i) Privileged Access Management (PAM) and (ii) Enterprise Password Vault.

“Products” means the Software, the Cloud Service, the Appliances and OGiTiX or Imprivata branded hardware devices, individually or collectively.

“Services” means Support services and/or other purchased professional implementation and training services, as applicable.

“Software” means (i) the object code version of the applicable proprietary software product distributed by OGiTiX, (ii) all modules, interfaces, updates and enhancements, thereto that are provided to you, (iii) any customized features and functions provided by OGiTiX pursuant to this Agreement, and (iv) all printed materials and online or electronic documentation provided to you. The Software may be provided with Third Party Code which interoperates with the Software but which is not a part of the Software and is not licensed hereunder.

“Support” means the services that OGiTiX provides to maintain and support the Software, which services are further described in Section 13.

“Third Party Code” means the additional third party software included in the Appliance that is licensed directly to you by third parties. To use such additional Third Party Code you must accept any licensing terms separately provided for such Third Party Code. OGiTiX warrants that the Appliance, as a whole with the Third Party Code, will comply with the warranties set forth below, and OGiTiX’s indemnification obligations set forth below apply to the Appliance as a whole with the Third Party Code.

“Third Party Hardware” means hardware that is proprietary to a third party (excludes OGiTiX or Imprivata branded devices).

“User” means a named individual authorized by you to use the Software pursuant to a license of the applicable Software purchased (as indicated in the applicable OGiTiX Quote or its equivalent if purchasing through an authorized reseller). A separate license must be purchased for each user who uses the Software, regardless of whether the user is actively using the Software at any given time (i.e. the Software is not licensed on a concurrent user basis).

License Grant

Subject to your compliance with the terms of this Agreement (including payment of all applicable fees), OGiTiX hereby grants to you a limited, non-exclusive, perpetual (excluding term-based licenses), non-transferable, non-sub-licensable license to permit your employees, independent contractors, consultants, and outsourced workers (in each case performing services for you) to access and use the applicable Software license purchased by you (as indicated in the applicable OGiTiX Quote or its equivalent if purchasing through an authorized reseller) in object code, provided such use is strictly in accordance with the applicable Software license grant specified below, any restrictions in the applicable OGiTiX Quote, and is solely for your internal business purposes.

  1. OneSign, OneSign Options, & Confirm ID. The following license grant set forth in this Section 2 (a) shall apply to OneSign, OneSign Options and Confirm ID Software:

    Subject to the terms and conditions of this Agreement, OGiTiX hereby grants you a license for each User and/or Device license purchased for OneSign, OneSign Options and/or Confirm ID Software (as indicated in the applicable OGiTiX Quote or its equivalent if purchasing through an authorized reseller) to access and use OneSign, OneSign Options and/or Confirm ID as prescribed in this Agreement and the published user documentation. OneSign and OneSign Options Software are required to be used in conjunction with an Appliance, have a matching level of Support and OneSign Options may only be used with a supported version of OneSign.
  2. Identity Governance. The following license grant set forth in this Section 2 (b) shall apply to the Identity Governance Software:

    Subject to the terms and conditions of this Agreement, OGiTiX grants you a license for each Identity Governance User license purchased to access and use Identity Governance to provision your Managed Identity accounts as prescribed in this Agreement and the published user documentation. The license fee for Identity Governance is determined by the total number of Managed Identities at the time of your purchase. You will be required to purchase a User license for each Managed Identity. In the event your number of Managed Identities increases, you shall pay OGiTiX additional User license and associated Support fees for all additional Managed Identities, based on OGiTiX’s then-current price list at the time of any such increase.
  3. PatientSecure. The following license grant set forth in this Section 2 (c) shall apply to the PatientSecure Software:

    Subject to the terms and conditions of this Agreement, OGiTiX hereby grants you a license to access and use the PatientSecure Software for the number of Authentications purchased by you (as indicated in the applicable OGiTiX Quote or its equivalent if purchased through an authorized reseller) (the “Authentication Baseline”). An annual license true-up will be conducted by OGiTiX prior to the end of each annual term. The license true-up will be conducted by pulling a report of the total number of Authentications used by you during the annual term as measured by OGiTiX’s Site Monitor tool. In the event you exceed the Authentication Baseline by ten-percent (10%) or more in an annual term, the parties agree to either: (i) negotiate the fees for such Authentications over the Authentication Baseline in good faith; or (ii) establish a revised Authentication Baseline for the next annual term based on the number of additional Authentications (and you shall remit fees for such revised Authentication Baseline for the next annual term prior to the start of such term). The PatientSecure Software is term-based Software subject to the terms of Section 2(d) below. You are required at all times to keep OGiTiX’s Site Monitor tool enabled for auditing purposes.
  4. Privileged Access Manager. The following license grant set forth in this Section 2 (d) shall apply to the Privileged Access Manager Software:

    Subject to the terms and conditions of this Agreement, OGiTiX hereby grants you a license for each User license purchased for Privileged Access Manager (as indicated in the applicable OGiTiX Quote or its equivalent if purchasing through an authorized reseller) to access and use Privileged Access Manager as prescribed in this Agreement and the published user documentation.
  5. Enterprise Access. The following license grant set forth in this Section 2(e) shall apply to the Enterprise Access Software:

    Subject to the terms and conditions of this Agreement, OGiTiX hereby grants you a license to install and use a single instance of the Enterprise Access Software solely during the applicable license term, in accordance with the documentation provided with the Software, and subject to any restrictions in the applicable OGiTiX Quote or its equivalent if purchasing through an authorized reseller. If you have purchased a business continuity package then, in addition to the single instance, you may: (i) for high availability, install up to three additional instances of the Software solely for the purpose of high availability; and (ii) for Disaster Recovery, install one additional instance for the purposes of disaster recovery. If you have purchased a Sandbox instance of the Software, then you may use one additional instance of the Software for non-production test purposes.
  6. Fees for Enterprise Access purchased on a subscription basis are due annually in advance and are adjusted on an annual basis based on usage of the Software during the preceding year as described in more detail in the OGiTiX Quote or its equivalent if purchasing through an authorized reseller. Increased use of the Software (use by more Vendors (such term as defined below) or for additional Sites (such term as defined below) will increase the fees charged for the Software in the subsequent year of the license term. In addition to adjustments based on usage, OGiTiX may update the per-unit pricing each year of the license term of a subscription license by providing you written notice at least ninety days prior to the end of the then-current year.
  7. Fees for Enterprise Access sold on a perpetual basis (as indicated in the applicable OGiTiX Quote or its equivalent if purchasing through an authorized reseller) are due at the time of purchase. Subject to your payment of fees for Support, you may use the Software for an unlimited number of Vendors and Sites, but use for more than the purchased number of Vendors and Sites will result in an increase in fees at the end of your current year of the license term. OGiTiX will assess your use of the Software annually. You agree that you will not disable OGiTiX’s access to the Enterprise Access appliance to enable such an assessment. In the event your number of Vendors or Sites increases, you shall pay OGiTiX to increase the scope of your perpetual license to cover the total number of Vendors and Sites based on OGiTiX’s then-current price list at the time of any such increase. You are not required to continue purchasing Support for a perpetual license for Enterprise Access, but if you do not maintain Support then you may not exceed the number of Vendors or Sites without first purchasing an increased license scope from OGiTiX.
  8. Support for Enterprise Access may include updates that are important to maintain the security of the Software and maintaining Support for perpetual licenses is strongly encouraged. OGiTiX will have no liability or responsibility, and you shall be solely responsible, for security breaches or other failures in the Software that result from a failure to maintain Support for the Software.
  9. As may be used in the OGiTiX Quote or its equivalent if purchasing through an authorized reseller: “Vendor” means a single vendor profile configured by you using the Software to access your systems; and “Site” shall mean a single physical location. The number of Vendors is calculated based on the highest number of Vendors that connect to your systems using the Software each year of the license term.
  10. Term-Based Licenses. If you purchased a term-based Software license (as indicated in the applicable OGiTiX Quote or its equivalent if purchasing through an authorized reseller) the license terms set forth in 2 (a), 2 (b), 2 (c) and/or 2 (d) shall apply (as applicable), provided, however, said term-based Software license shall commence on delivery of the Software and continue for the duration of the license term (as indicated in the applicable OGiTiX Quote or its equivalent if purchasing through an authorized reseller). At the end of such license term, if the Software license is not renewed by you, then the license for such term-based Software shall terminate. The license key distributed by OGiTiX to you for any term-based Software license is programmed to expire at the end of the applicable license term at which point the term-based Software cannot be accessed or used.
  11. Non-Clinical User Licenses. If you purchased a Non-Clinical User Software license (as indicated in the applicable OGiTiX Quote or its equivalent if purchasing through an authorized reseller) the license terms set forth in 2 (a) shall apply (as applicable), provided, however, the Software may only be used by an employee, independent contractor, consultant, or outsourced worker of yours that has a need to use the Software to provide services for or on behalf of you but does not provide healthcare to patients and at no time uses the Software to access your electronic medical record system.

  12. Cloud Service. If you purchased Software which utilizes OGiTiX’s cloud service (the “Cloud Service”), such Cloud Service is a hosted service offering operated by OGiTiX. The Cloud Service provides the following (as applicable):

    1. Authentication using the OGiTiX ID mobile application (requires data plan on User’s device);
    2. Authentication using a One Time Password (OTP) delivered via SMS text (requires SMS text plan on User’s device);
    3. Graphical interface for certain browser based OneSign and Confirm ID authentication log in and administrative console pages;
    4. Authentication into web applications which are configured with OGiTiX as the identity provider;
    5. Individual ID proofing for EPCS;
    6. EPCS authentication from mobile electronic medical record applications; and
    7. Authentication using a facial biometric captured using the OGiTiX ID mobile application (requires data plan on User’s device).

    Subject to the terms of this Agreement and provided you are active on Support and the Cloud Service is then made commercially available by OGiTiX, you are granted a non-exclusive, non-transferable, non-sub-licensable and limited right to allow your Users to access and use the Cloud Service in conjunction with a licensed version of the OGiTiX Software utilizing the Cloud Service. Your use of the Cloud Service is solely for your internal business purposes in a manner consistent with the published user documentation. The OGiTiX Software which utilizes the Cloud Service requires an active connection to the Internet from your User’s computer or mobile device. OGiTiX represents and warrants that it will provide the Cloud Service in all material respects in accordance with the published user documentation. OGiTiX shall not be liable for the unavailability of the Cloud Service if, and to the extent, such unavailability is due to one or more of the following circumstances:

    1. hostile network attacks;
    2. deficiencies caused by the Internet;
    3. force majeure events;
    4. scheduled or emergency maintenance, provided that written notice of such scheduled maintenance is provided to you by OGiTiX.
  13. Restrictions. With the exception of SecureLink Enterprise Access Software, you may reproduce one copy of the Software solely for back-up purposes. You may not use the Software to provide timesharing, service bureau, subscription or managed service, hosting, outsourcing, rental or similar services; or to circumvent any technical security measures contained in the Software; or use the Software in a way that constitutes, promotes, or supports a violation of any applicable law, in particular to transmit information or data that is unlawful or infringes the rights, including, but not limited to, intellectual property rights, of third parties. Except as expressly set forth herein, you may not copy, translate, modify or adapt the Software, or any portion thereof, or incorporate it, in whole or any part, in any other product, create derivative works based on the Software, or any portion thereof, or license others to reproduce any copies of the Software, or any portion thereof, and may not decompile, disassemble or reverse engineer the Software, or any component thereof except as permitted by law, and then only after having previously requested in writing from OGiTiX the interoperability information you are attempting to obtain. You will ensure that no proprietary notices affixed to or displayed on the Software will be removed or modified.
  14. Oracle Disclaimer. Some of the Software contains software licensed by OGiTiX from Oracle America, Inc. (“Oracle”). As to that software, Oracle is a third party beneficiary of this Agreement and, to the extent permitted by applicable law, Oracle disclaims any liability to you for (a) any damages, whether direct, indirect, incidental, or consequential, and (b) any loss of profits, revenue, data or data use, arising from the use of the Software. Notwithstanding Oracle’s disclaimer, all such software is Software warranted by OGiTiX and subject to OGiTiX’s indemnity obligations, all as set forth in this Agreement.
  15. Right to Audit. At OGiTiX’s written request not more frequently than once during any 12 month period, you agree that your Chief Financial Officer (or person holding equivalent office) shall provide a written certification to OGiTiX of the statement of the total number of Users, Devices, Managed Identities, Named Hospitals or Clinics using each Software product then licensed by you. If you fail to provide such certification within thirty (30) days after OGiTiX’s request, you consent to OGiTiX auditing you to ascertain the number of Users, Devices, Managed Identities, Named Hospitals or Clinics, as applicable, such audit to be conducted by an independent auditor during your standard business hours and at your expense. If the inspection reveals an underpayment of any license fees, you shall promptly pay to OGiTiX the deficit.

Limited Software Warranty and Disclaimer

  1. OGiTiX warrants (a) that the Software and other Products will conform substantially to OGiTiX's published user documentation as of the date of the delivery to you and (b) that it will provide any Services agreed to between the parties in a good and workmanlike manner consistent with industry standards. This warranty is a limited warranty. It does not apply to (a) Software and other Products identified in their product description as being sold or licensed “as-is” or (b) Software and other Products identified as “beta” or “pre-release”or the like; all of which are supplied on an “as-is” basis without any warranty of any sort. OGiTiX will have no obligation hereunder if the alleged defect is due to (x) causes not within OGiTiX's control, including accident, alteration, abuse, misuse or repair not performed by OGiTiX or (y) use of the Software other than in accordance with its published specifications. OGiTiX will remedy any breach of the foregoing warranty, at OGiTiX’s option, by repairing or replacing the Software or other Product so that it conforms to the limited warranty set forth above or terminate this Agreement and, refund to you the price paid therefor. In case of perpetual Software licenses or sales of Products, the period of limitation for the claims pursuant to Section 3 (a) is one (1) year and begins with delivery of the Software or other Product to you. The warranty does not apply to virtual Appliances and excludes all non-branded third-party authentication devices. OGiTiX will pass along the manufacturer’s warranty for all non-branded third-party authentication devices.
  2. You shall notify OGiTiX of any defects of the Products without undue delay after discovery and provide OGiTiX with a precise description of the defect and any further information useful for remedying the defect.
  3. OGITIX MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO THE SOFTWARE, THE OTHER PRODUCTS OR THE SERVICES AND ALL OTHER WARRANTIES AS TO QUALITY, CONDITION, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED. The Software is not warranted to be error free. You will have sole responsibility for the adequate protection and backup of your data and/or equipment used with the Software. THIS LIMITED WARRANTY GIVES YOU SPECIFIC RIGHTS. YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE, AND COUNTRY TO COUNTRY.

Payment & Shipment

  1. OGiTiX shall sell to you and you shall purchase from OGiTiX the Products and Services as set forth in the applicable OGiTiX Quote (or its equivalent if purchasing through an authorized reseller). OGiTiX will invoice you for the total purchase price set forth on the OGiTiX Quote (or its equivalent if purchasing through an authorized reseller). You will pay invoices within 30 days of each invoice date. Subject to the limited warranty pursuant to Section 3(a) and your rights under applicable law, all purchases are non-cancellable and non-refundable. OGiTiX may withhold shipments and cease providing any services until past-due payments are made. Late payments are subject to a charge of the lesser of 1.5% per month or the maximum allowed by law during such time as any payment is late as well as collection costs, including reasonable collection and attorney’s fees. Prices do not include, and you shall be responsible for, all applicable taxes of any kind due in respect of the transactions contemplated by this Agreement, except taxes on OGiTiX's net income.
  2. All shipments are Incoterms 2020: FCA, Seller's Factory. You shall bear all costs of transportation, shipping, and insurance. Risk of loss and title (except for Software) passes to you upon delivery to the carrier. You represent and warrant to OGiTiX that you will not export or import the Products or any portion thereof or any OGiTiX Confidential Information (as defined below) or related technical data in violation of applicable laws or regulations, including without limitation US export restriction laws and regulations relating to sales to nationals or residents of foreign nations, and you agree to indemnify and hold OGiTiX harmless from and against claims, losses, costs, or liability due to your culpable breach of this warranty.

Confidentiality

  1. Each party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to (i) prevent use of the other party’s Confidential Information for any purpose other than to carry out its rights and obligations hereunder, and (ii) prevent the disclosure of the other party’s Confidential Information other than to its employees or contractors who must have access to such Confidential Information for such party to exercise its rights and perform its obligations hereunder and who each agree to be bound by agreements with a duty of confidentiality no less protective of confidential information than provided herein, and each party shall be responsible to ensure that its employees and consultants comply with the restrictions set forth herein. “Confidential Information” shall mean information furnished or made available directly or indirectly by the disclosing party to the receiving party which (x) is marked confidential, proprietary, or with a similar designation; (y) in the case of information given orally or visually, is reduced to a written summary marked with an appropriate restrictive legend and delivered to the receiving party within two (2) weeks after it is furnished hereunder or (z) should be reasonably understood by the receiving party to be the confidential or proprietary information of the disclosing party; without limiting the foregoing, the Software and the results of benchmark and other tests run by you and resulting from use of the Software shall be deemed to be OGiTiX’s Confidential Information.
  2. The parties’ obligations set forth in this section shall not apply with respect to any portion of the Confidential Information that: (i) was in the public domain at the time it was communicated to the receiving party; (ii) entered the public domain through no fault of the receiving party; (iii) is rightfully received by the receiving party from a third party without a duty of confidentiality; (iv) is independently developed by the receiving party without use of the Confidential Information; (v) consists of generalized ideas, concepts, know-how or techniques in intangible form that is incidentally retained in the unaided memories of persons who have had authorized access to Confidential Information (provided that this exception shall not be construed to grant to either party a license to the other party’s copyrights or patents beyond those otherwise granted in this Agreement); (vi) is disclosed under operation of law, except that the receiving party will disclose only such information as is legally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed and will, if legally permitted, provide the other party prompt notice of such possible disclosure prior to disclosure in order to allow an opportunity to contest such disclosure; or (vii) is disclosed with the other party’s prior written approval.

Limitation of Liability

  1. EITHER PARTY IS LIABLE IN ALL CASES OF CONTRACTUAL AND NON-CONTRACTUAL LIABILITY FOR INTENT AND GROSS NEGLIGENCE IN ACCORDANCE WITH THE STATUTORY PROVISIONS OF DAMAGE OR COMPENSATION FOR FUTILE EXPENSES. IN CASE OF SLIGHT NEGLIGENCE, EITHER PARTY IS ONLY LIABLE – UNLESS OTHERWISE PROVIDED FOR IN SECTION 6(b) BELOW – IF SUCH NEGLIGENCE RESULTS IN THE BREACH OF AN ESSENTIAL CONTRACTUAL DUTY (KARDINALPFLICHT, A DUTY WHICH ITSELF IS A NECESSARY PREREQUISITE FOR THE CONTRACTUAL PERFORMANCE OR A DUTY THE BREACH OF WHICH JEOPARDIZES THE PURPOSE OF THE AGREEMENT AND UPON FULFILLMENT OF WHICH THE OTHER PARTY COULD LEGITIMATELY RELY), IN WHICH CASE SUCH PARTY’S LIABILITY SHALL BE LIMITED TO TYPICAL DAMAGES WHICH ARE FORESEEABLE AT THE TIME THIS AGREEMENT IS BEING ENTERED INTO; THE PARTIES AGREE THAT THE TYPICAL AND FORESEEABLE DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE BY YOU TO OGITIX FOR THE PRODUCT OR SERVICE GIVING RISE TO THE LIABILITY DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN ALL OTHER CASES, THE LIABILITY OF EITHER PARTY IS EXCLUDED SUBJECT TO THE PROVISIONS OF SECTION 6(b) BELOW.

  2. THE LIABILITY OF EITHER PARTY

    1. IN RESPECT OF THE RESPONSIBILITIES IN SECTION 2(j) AND SECTION 7,
    2. FOR DAMAGES FOR INJURY TO LIFE, BODY OR HEALTH,
    3. DUE TO THE ABSENCE OF A WARRANTED QUALITY OR IN CASE OF FRAUDULENTY CONCEALED DEFECTS, AS WELL AS
    4. DUE TO MANDATORY LIABILITY, SUCH AS UNDER THE GERMAN PRODUCT LIABILITY ACT (PRODUKTHAFTUNGSGESETZ)

    REMAINS UNAFFECTED BY THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 6.

  3. AS FAR AS THE LIABILITY OF A PARTY IS EXCLUDED OR LIMITED, THIS ALSO APPLIES REGARDING THE REPRESENTATIVES OF SUCH PARTY.

Indemnification, Intellectual Property Claims

OGiTiX will defend you from and against third party claims (and will pay any resulting damages, costs or liabilities awarded by a court of final jurisdiction) arising solely from a claim that the Software infringes any United States or European Union patent or any copyright rights (in or of countries that are signatories to the Berne Convention) of a third party. OGiTiX's obligation is subject to your compliance with the following procedures: (a) you will promptly notify OGiTiX in writing of any claim or the commencement of any suit, action, proceeding or threat that you believe will result in losses for which you will be entitled to defense, provided however, that the failure to give such prompt written notice shall not affect the indemnification provided hereunder except to the extent that such failure shall have actually prejudiced OGiTiX; (b) you will tender to OGiTiX (and its insurer) full authority to defend or settle any such claim (to the extent possible under applicable law and possible without impairing the effective defense); and (c) you shall cooperate in the defense of such claim. OGiTiX has no obligation to indemnify you in connection with any settlement made without OGiTiX's prior written consent. OGiTiX will defend you against any such claim brought against you by counsel retained at OGiTiX's own expense and of OGiTiX's own choosing. You shall be permitted to monitor the defense of any such claim with counsel of your choosing at your sole cost and expense. OGiTiX shall have no obligation to indemnify you for infringement claims arising in whole or in part from (1) designs, specifications or modifications originated or requested by you, (2) the combination of the Software or any part thereof with other equipment, software or products not supplied by OGiTiX if such infringement or misappropriation would not have occurred but for such combination, (3) your failure to install an update, where same would have avoided such claim or (4) Third Party Code used apart from the Appliance. You will indemnify and hold OGiTiX harmless from and against claims that are the subject of clauses (1)-(3). In the event that the use or sale of any of the Software is enjoined or, in OGiTiX's judgment may be enjoined, OGiTiX will either: (i) procure for you the right to continue to use the Software, (ii) replace the infringing portion of the Software with a functionally equivalent product or modify it so that it becomes non-infringing, or (iii) direct you to destroy the Software, including any Software installed on your computers, and return all media and documentation containing the software program documentation or any other materials, copies or reproductions of the foregoing, relating to the Software, and, upon receipt thereof, OGiTiX shall reimburse you for (x) the price originally paid by you for any Software licensed on a perpetual license basis, reduced by five year straight line depreciation plus (y) any prepaid fees for term-based Software licenses on a pro-rata basis. Upon OGiTiX's fulfillment of the alternatives set out in this section, OGiTiX shall be relieved of any further obligation or liability to you as a result of any such infringement or misappropriation.

Intellectual Property Rights

Except as otherwise set forth in this Agreement or as otherwise agreed in writing, OGiTiX does not grant any, and you acknowledge that you shall have no, right, license, or interest in any of OGiTiX’s patents, copyrights, trademarks, trade secrets, or other intellectual property rights, including, without limitation, inventions, discoveries, models, utility models, semi-conductor topography rights, author’s or performer’s rights, recording rights, moral rights, rental and lending rights, software, designs, brands, domain names, know-how and other rights in information, drawings, logos, plans, database rights, technical notes, prototypes, processes, methods, algorithms, and any technical-related documentation (collectively “IP Rights”). All ownership and other rights to such IP Rights are and will remain the exclusive property of OGiTiX and its licensors, and you acknowledge that the Products and Services, including the structure, organization, and design of hardware and Software included as part of the Products, constitute valuable trade secrets and other intellectual property rights of OGiTiX and its licensors.

Term and Termination

  1. Term. This Agreement shall become effective as of the Effective Date and, unless sooner terminated as set forth below, shall continue until the expiration or termination of the last existing Software term license as such term is specified in your OGiTiX Quote (or its equivalent if purchasing through an authorized reseller).
  2. Termination for Cause. Either party may terminate this Agreement or any OGiTiX Quote by written notice if the other party: (i) commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach; or (ii) becomes insolvent, commences dissolution proceedings or ceases to operate in the ordinary course of business. In addition, OGiTiX may terminate this Agreement or any OGiTiX Quote immediately if you breach Section 2 (License Grant) or Section 5 (Confidentiality).
  3. The right of either party to terminate this Agreement or any OGiTiX Quote on important grounds remains unaffected.
  4. Effect of Expiration or Termination. Upon expiration or termination of this Agreement or any OGiTiX Quote, by either party, all term-based Software licenses granted to you, and all Services obtained by you, under this Agreement and/or OGiTiX Quote (as applicable) shall terminate and you shall cease using the applicable term-based Software. Upon any such expiration or termination, you shall promptly remit to OGiTiX all unpaid monies due, or to become due, under this Agreement and/or OGiTiX Quote. You agree to destroy all copies of the term-based Software in your possession and provide written notification from an officer of yours to that effect. In addition to those provisions which by their nature are intended to survive any expiration or termination of this Agreement or any individual OGiTiX Quote, Section 5 (Confidentiality) and Section 6 (Limitation of Liability) shall specifically survive such expiration or termination.

Licensed Facilities

With the exception of SecureLink Enterprise Access Software, the license to use the Software, Hardware and Services (as applicable) and otherwise exercise your license rights hereunder is extended to those majority owned hospitals and healthcare facilities controlled by or under common control with you (each a “Licensed Facility”). You are responsible for the performance of each Licensed Facility in connection with the Licensed Facility’s use of the Software, Hardware and Services (as applicable), and guarantee each Licensed Facility’s full and faithful compliance with the terms of the Agreement. For purposes of the foregoing, “control” means the ownership of (i) greater than fifty percent (50%) of the voting power to elect directors of the hospital and/or healthcare facility, or (ii) greater than fifty percent (50%) of the ownership interest in the hospital and/or healthcare facility. You acknowledge and agree that the number of Users and other metrics, as may be applicable, of each Licensed Facility will be included when measuring license compliance (including incremental license fees, if applicable) under the provisions of this Agreement. The SecureLink Enterprise Access Software may only be used in support of a single Site unless additional Sites are licensed in the applicable OGiTiX Quote.

Biometric and Personal Data

  1. You represent and warrant that you comply with all applicable biometric and privacy laws, rules, regulations and orders and agree that any employee and/or contractor biometric and personal information will be collected, handled, and otherwise processed in accordance with applicable law and your policies, including, but not limited to, if applicable, obtaining required consent(s) by all employees and/or contractors utilizing the Software. You agree to indemnify and hold OGiTiX harmless from and against any and all claims, demands, actions, threatened actions, governmental enforcement proceedings, costs (including reasonable attorneys’ fees) liabilities, fines, penalties, and other loss arising or resulting from your culpable breach or alleged breach of this warranty.
  2. The Software may permit the user of the Appliance to record employee information including but not limited to user names, passwords, applications accessed and other information regarding employees’ network and corporate information access and usage. You agree to use and safeguard that employee information in accordance with all applicable laws, and OGiTiX disclaims any liability for any damages of any kind arising in connection with the use or misuse of that employee information.

Export Restrictions

You are solely responsible for complying with applicable export and import regulations, securing any necessary export or import license(s), obtaining local customs clearance and paying all duties, taxes and other charges. You represent and warrant to OGiTiX that you will not export the Software or any portion thereof in violation of applicable laws or regulations. You agree to indemnify and hold OGiTiX harmless from and against claims, losses, costs, or liability, arising in connection with your culpable breach of this Section.

Support

You may receive Support on an annual basis commencing with shipment of your Software if you are purchasing Support from OGiTiX or an OGiTiX authorized reseller. At the end of the initial year of Support, or any subsequent anniversary thereof, Support shall automatically renew for successive twelve month periods unless you or OGiTiX (or its reseller, as applicable) provides the other with written confirmation of non-renewal at least thirty (30) days prior to the expiration of the then applicable annual Support period. Notwithstanding the foregoing, OGiTiX (or its reseller, as applicable) shall not terminate Support without cause if OGiTiX (or its reseller, as applicable) is then providing Support to other similarly situated customers, provided that OGiTiX (or its reseller, as applicable) may, with not less than sixty (60) days’ notice, change the Support descriptions or pricing effective at the start of the next annual term hereunder. OGiTiX or its reseller will invoice you for the renewal not less than thirty (30) days prior to the end of the then applicable annual Support period; payment will be due as of the commencement of the then applicable annual Support period and OGiTiX or its reseller may terminate Support if you fail to make the applicable payment within thirty (30) days thereafter. While you participate in Support, OGiTiX will provide you (i) telephone and email based technical support in accordance with the Support level purchased and (ii) all new maintenance releases to the Software when and if available (for Enterprise Access, additional information is available at https://www.imprivata.com/imprivata-master-cloud-services-agreement/maintenance-and-support; for all other Software, additional information is available at https://www.imprivata.com/imprivata-master-cloud-services-agreement/maintenance-and-support). OGiTiX shall not be required to provide Support on any Software (a) for more than twelve months after its general release, or (b) more than one release behind the current shipping release of the Software. Any software provided to you pursuant to Support shall be provided as Software licensed under the terms of this Agreement. Notwithstanding the foregoing, Support for a term-based Software license is included in the Software license cost and shall commence on delivery of the Software and continue for the duration of the license term.

High Risk Activities

The Appliance is not fault-tolerant and is not developed or intended for use – including evaluation or trial use – in hazardous environments requiring fail-safe performance, including without limitation in the operation of nuclear facilities, aircraft navigation or control systems, air traffic control, direct life support machines or weapons systems, or any other application in which the failure of the Software could lead to death, personal injury, or severe physical or environmental damages (“High Risk Activities”). OGiTiX specifically excludes any express or implied warranty of fitness for High Risk Activities.

Injunctive Relief

You agree that, because of the proprietary nature of the Software, OGiTiX's remedies at law for a breach by you of your obligations under this Agreement will be inadequate and that OGiTiX shall, in the event of a breach or threatened breach, be entitled to injunctive relief, without the posting of any bond, in addition to all other remedies provided under this Agreement or available at law.

Customer List

You agree that OGiTiX may include your name and logo on its customer lists, including in on-line and printed forms.

General

  1. This Agreement (and any purchase orders) contains the entire agreement of the parties with respect to the transactions contemplated by this Agreement and supersedes all prior and contemporaneous agreements, representations and understandings, whether written or oral. No modification or waiver of any provision hereof is effective unless in writing and signed by each party. OGiTiX shall not be subject to any provisions of any pre-printed purchase order, or any of your policies, regulations, rules, or the like, including those set forth in any of your sponsored registration system (collectively, “Policies”), even if such Policies require affirmative acknowledgement from a OGiTiX representative.
  2. This Agreement is binding upon and inures to the benefit of the parties, their successors and permitted assigns. Neither party may assign or transfer its rights hereunder without the other party’s prior written consent, provided that OGiTiX may assign this Agreement in connection with a merger or consolidation or the sale of all or substantially all of its assets or stock.
  3. This Agreement and the rights and obligations of the parties will be governed by and construed in accordance with the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) as adopted by any state are specifically excluded from application hereunder. Any dispute arising out of or in connection with this Agreement shall be submitted to the exclusive jurisdiction of the courts of Duesseldorf, Germany.
  4. The failure of either party to enforce any of the terms hereof will not be construed as a waiver of future enforcement of that or any other term. Neither party is responsible for any delays or failure in performance (except for payment of money) due to any cause beyond the party’s reasonable control. If any provision of this Agreement or the application thereof to any party or circumstances shall, to any extent, now or hereafter be or become invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and every other provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. Section headings used in this Agreement are intended for convenience only and shall not affect the interpretation or construction of this Agreement.
  5. The parties acknowledge that OGiTiX is an independent contractor of yours. In no event will OGiTiX or any of its employees be deemed a joint venture party, partner, employee, or agent of yours by virtue of this Agreement.
  6. OGiTiX may from time to time, prior to or during the term of this Agreement, disclose to you information related to planned future products, features or enhancements. OGiTiX’s development efforts and plans are subject to change at any time, without notice; OGiTiX provides no assurances that OGiTiX will introduce any such future products, features or enhancements and assumes no responsibility to introduce such products, features or enhancements. You acknowledge that your current purchasing decisions are not made based on the reliance on any such future timeframes or specifics described to you.

Questions

Should you have any questions in regard to this Agreement, please contact OGiTiX.