Exan
SOFTWARE END USER LICENSE AGREEMENT (EULA)

This legal document is a license agreement and not an agreement for sale.  You, as the END USER, acknowledge that EXAN is the exclusive owner of all right, title and interest in the Software and Documentation (each as hereinafter defined).  You further acknowledge that EXAN is the owner and holder of all copyright, patent, trademark, trade secret and other proprietary rights therein (collectively, “Proprietary Rights”), and reserves all such Proprietary Rights to itself except as expressly licensed to you hereunder.  BY OPENING ANY SEALED SOFTWARE PACKAGE OR USING ANY SOFTWARE FROM EXAN, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THE PROVISIONS IN THIS SOFTWARE EULA AND THE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS HEREIN, EXAN DOES NOT GRANT YOU THE RIGHT TO USE THE PRODUCT.

1.	SCOPE OF USE
“Software” shall mean the machine readable software programs and associated files, whether in packaged form, or received electronically, and any modified version, upgrades and other copies of such programs and files owned by EXAN and licensed to you.  The term “Documentation” shall mean the user’s manual(s) and other materials (whether in printed or electronic form) accompanying the Software, and any modified version thereof provided by EXAN to you.  The term “Product” shall mean the Software and Documentation. This license provides you with the right to install the Software on a single system at a single site or location. You may not use the Software on multiple systems unless you have paid the multi-user license fee.  You may not use the Software at more than 1 site or location or with more than 1 installed instance of the practice management database unless you have paid for multiple site licenses.  Please note that a multi-user license of Power Practice limits you to installing the Software on a total of 10 systems at the same site or location with 1 installed database instance, after which additional licensing fees apply.  EXAN is not responsible for the licensing of any imaging software, nor the way in which those software packages interoperate with EXAN Software. YOU MAY NOT RENT, LOAN, LEASE, SUBLICENSE, DISASSEMBLE, DECOMPILE OR OTHERWISE REVERSE ENGINEER OR ATTEMPT TO DECONSTRUCT OR DISCOVER ANY SOURCE CODE OR UNDERLYING IDEAS OR ALGORITHMS OF THE SOFTWARE BY ANY MEANS WHATSOEVER.  YOU MAY NOT USE, COPY, MODIFY, MERGE, OR TRANSFER COPIES OF THE SOFTWARE (INCLUDING PREVIOUS VERSIONS) EXCEPT AS PROVIDED FOR IN THIS SOFTWARE EULA.  You may not distribute, disclose, or allow use of the Software or the Documentation, or any portion thereof, by any third party other than your own personnel in any format and through any timesharing service, service bureau, network or by any other means. EXAN shall not be held liable for any security breaches or fines that you may incur due to the use of unauthorized third party software.  

2.	ASSIGNMENT
You may transfer your Software product license(s) together with the original Product (which includes all versions and updates to that Software product) on a permanent basis only after the following conditions are met: 
a.	You are selling your entire practice, including the practice management software (the practice management software cannot be sold or transferred alone).
b.	In order to transfer a site license for an entire site that is being sold, which is not accompanied by the main license under which the site license was purchased, EXAN will require that the site license be upgraded to a full license by you, including all corresponding fees and paperwork.  Otherwise, the site license is ineligible for transfer.
c.	You have received written permission from EXAN to transfer the license(s) (you will be required to sign a License Transfer Agreement). 
d.	The recipient has signed and submitted a new License Agreement.
e.	You destroy all copies of the Software that you do not transfer to the recipient. 
f.	You pay all applicable license transfer fees. 
g.	EXAN may request a Bill of Sale which, if requested, must include an itemized entry for the Software being transferred.
Except as provided above, you may not sublicense, assign or transfer the license(s) for the Product or previous versions of the Product. Any attempt to do so shall terminate the license. You are responsible for notifying EXAN in the event of a change of address, a change of ownership, or to request a license name change.

3.	COPIES, MODIFICATIONS OR MERGER
You may make 1 copy of each Software media solely for backup or archival purposes in support of your use on a single computer. You may not make any other copies or modify all or any portion of the Software or Documentation or merge it into another program unless expressly authorized in writing by EXAN. You shall use your best efforts to prevent any unauthorized copying of the Software and Documentation.

IF YOU OR YOUR PERSONNEL COPY, MODIFY OR MERGE ANY PORTION OF THE SOFTWARE OR DOCUMENTATION OTHER THAN WITH EXAN’S PRIOR WRITTEN AUTHORIZATION OR IF YOU OR YOUR PERSONNEL TRANSFER POSSESSION OF ANY COPY, MODIFICATION OR MERGED PORTION OF THE SOFTWARE OR DOCUMENTATION TO ANOTHER PARTY WITHOUT OBTAINING THE TRANSFEREE’S AGREEMENT REQUIRED UNDER SECTION 2 ABOVE, YOUR LICENSE WILL AUTOMATICALLY TERMINATE.

4.	DUAL MEDIA SOFTWARE
If this or subsequent packages contain CDs or other types of media, you may use only the CDs or media appropriate for a single designated computer. You may not use the other CDs or media on another computer, or loan, sublicense, rent, lease, or transfer them except as part of the permanent transfer of the Software as expressly permitted by this Software EULA.

5.	TERM/TERMINATION
The license hereunder is effective until terminated.  EXAN may terminate this Software EULA at any time if you are in breach of any of its terms and conditions.  Upon termination, you shall:
a.	Return the media containing the Software together with all Documentation to EXAN;
b.	Destroy any and all copies of the Software or any portions of it which have not been returned to EXAN, including copies resident in computer memory; and
c.	Certify to EXAN in writing that you have retained no copies of the Software and Documentation or any portion thereof.  
Upon any termination of this Software EULA, EXAN shall invoice you for all accrued fees and all reimbursable expenses and you agree to pay the invoiced amount immediately upon receipt of such invoice.

6.	LIMITED SOFTWARE WARRANTY
YOU ASSUME FULL RESPONSIBILITY FOR THE SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF THE PRODUCT AND FOR VERIFYING THE RESULTS OBTAINED FROM ITS USE. EXAN DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION REGARDING THE USE, OR THE RESULTS OF THE USE OF THE PRODUCT, OR REGARDING THE FUNCTIONALITY, RELIABILITY, MERCHANTABILITY OR PERFORMANCE OF THE PRODUCT, OR THAT THE OPERATION OF THE PRODUCT WILL BE WITHOUT INTERRUPTION OR ERROR-FREE. EXAN warrants the Software to operate as described in the Documentation for 90 days after delivery.  If you discover a defect in the Software, you should return the defective Software to EXAN within such warranty period together with a copy of the invoice or purchase agreement showing the price and date of purchase of the license.  EXAN will, upon verification of the defect or error and if during the warranty period, at EXAN’s option, either repair or replace the defective Software or refund the amount you paid for the license (“License Fee”).  Upon verification of the defect, EXAN will, at EXAN’s option and as EXAN’s sole obligation, and your sole remedy hereunder for breach of warranty, either repair or replace the non-conforming Software or refund the License Fee to you.  If EXAN elects to provide a refund, upon the date you receive notice of such election the license shall terminate and you must comply with the provisions of Section 5 (Term/Termination) above. ALL WARRANTIES SHALL TERMINATE 90 DAYS FROM DATE OF DELIVERY OF THE SOFTWARE TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. 

7.	LIMITATION OF LIABILITIES
IN NO EVENT WILL EXAN BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE PRODUCT, THE BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, OR OTHERWISE IN CONNECTION WITH THE PRODUCT, ITS SOFTWARE, THE DOCUMENTATION AND/OR THE LICENSE, EVEN IF EXAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL EXAN’S TOTAL LIABILITY FOR ANY DAMAGES, ARISING IN CONNECTION WITH THE PRODUCT, ITS SOFTWARE, THE DOCUMENTATION AND/OR THIS LICENSE EXCEED THE LICENSE FEES PAID FOR YOUR RIGHT TO USE THIS PRODUCT WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, BREACH OF WARRANTY, TORT OR OTHERWISE.  YOU ACKNOWLEDGE THAT THE LICENSE FEE REFLECTS THIS ALLOCATION OF RISK. 

8.	CONFIDENTIAL INFORMATION
The parties agree that the Software, Documentation, License, pricing, discounts and all other terms offered to you, any functional limitations of, or errors in, the Software and other materials of a confidential and proprietary nature provided by EXAN to you are the confidential property of EXAN (“Confidential Information”), and that any confidential business, technical, financial or other information disclosed by one party to the other pursuant to this Agreement is the Confidential Information of the disclosing party. Each party agrees that it shall not use the Confidential Information of the other party for any purpose not expressly permitted by this Agreement, and that it shall hold in confidence and shall not disclose to any third party such Confidential Information or the material terms of this Agreement, and shall similarly bind its personnel. 

9.	UPGRADES
After upgrading any EXAN Software, whether in the same product family or across product families, you may no longer use the previous Product that formed the basis for the upgrade eligibility. The previous Product retains no license and therefore cannot be transferred, sold, or utilized on any other hardware or in any other form.  Any use of the previous Product is a violation of this Software EULA and could be subject to prosecution.  

10.	FORCE MAJEURE
EXAN shall have no liability for delays, failure in performance or damages (other than obligations regarding payment of money or confidentiality) due to: fire, explosion, lightning, pest damage, power surges or failures, strikes or labor disputes, water, acts of God, the elements, war, civil disturbances, acts of military authorities or the public enemy, inability to secure raw material, transportation facilities, fuel or energy shortages, acts or omissions of communications carriers, or other causes beyond EXAN’s control, whether or not similar to the foregoing. In addition, EXAN shall have no liability for unauthorized use of the Product or Internet inaccessibility or failure.

11.	GENERAL
You agree that the Agreement constitutes the entire agreement between you and EXAN and supersedes any prior agreement or any other communications relating to the use of the Product.  It shall not be modified except in writing signed by an authorized representative from the EXAN corporate headquarters. Amendments will also be included in subsequent Software releases for review upon installation.  New Products and upgrades are released at the discretion of EXAN.  Your continued use of the Software thereafter will indicate your agreement to the amendments.  Amendments will apply to your existing account as well as to future transactions.  In addition to the General Terms and Conditions, notice shall be deemed given by sending to address on user’s receipt of Product upgrades.

12.	PATIENT DATA PRIVACY PROTECTION
Customer agrees to assume full responsibility for all use of private patient (client) information and all data held in the software, whether it is communicated electronically, on paper or orally. In no way does the producer of the Software, assume any responsibility for the information which has been secured from the Software. Customer agrees to assume all responsibility for protecting patient (client) information in accordance with any and all applicable privacy legislation and government regulations.

Hardware Disclaimer Notice:  Computer hardware, operating systems, networks, and any associated warranties are your sole responsibility.  EXAN assumes no responsibility or liability for installation, maintenance, support warranties or services and you are required to purchase these Products or services as desired.  EXAN publishes System Requirements which should be referenced prior to purchasing hardware or software in order to achieve acceptable software function and performance.