EULA

Terms and Conditions

Last updated: July 6, 2023

IMPORTANT NOTICE: PLEASE READ CAREFULLY. BY ACCEPTANCE OF THE AIMS 3 SOFTWARE, YOU CONFIRM THAT YOU HAVE READ THE END USER LICENSE AGREEMENT INCLUDED WITH YOUR PRODUCT AND THAT YOU AGREE TO BE BOUND BY ITS TERMS FOR THIS AND ALL SUBSEQUENT AIMS 3 SOFTWARE PROGRAMS. THE TERMS AND CONDITIONS ON THE REVERSE SIDE OF THIS CERTIFICATE ARE A PART OF THE AGREEMENT BETWEEN YOU, THE LICENSEE, AND PHOENIX DATA SYSTEMS, INC., THE LICENSOR.

AIMS 3 SOFTWARE USE AGREEMENT

Phoenix Data Systems, Inc. (LICENSOR) and you (LICENSEE) hereby agree to the software support of the REGISTERED PRODUCT (Page 1) under the following terms and conditions.

  1. PRODUCT COVERED: This Agreement is for services for the software program(s) (PRODUCT) licensed to the LICENSEE by LICENSOR, as indicated on the AIMS 3 Software “Use License” Certificate.
  2. TERM OF AGREEMENT: This Agreement will terminate on the Expiration Date indicated under the Registered Support Program section on the AIMS 3 Software “Use License” Certificate.
  3. PRODUCT RELEASE CONTACT: In order to provide you with a control on shipment of updates under this Agreement, update notices will be sent to the Product Information/Releases Contact, as indicated on the AIMS 3 Software “Use License” Certificate.
  4. SUPPORT SERVICES COVERED: LICENSOR shall provide the following support services, to the LICENSEE, for the term of this Annual Support Agreement.
    1. Software Updates
      • LICENSOR shall provide to LICENSEE reasonable services to correct verified programming or documentation errors reported by LICENSEE. These corrections will be made available as of the next scheduled major PRODUCT Release or sooner at LICENSOR’S discretion.
      • LICENSOR will provide LICENSEE automatically and at no charge, all scheduled PRODUCT Releases. Typically, a PRODUCT Release improves performance, incorporates new concepts into existing modules, corrects errors and/or enhances the PRODUCT.
    2. Technical Support
      • LICENSOR will maintain a toll-free telephone hot line service for the continental United States and Canada. This service is available weekdays between the hours of 8:00 a.m. and 5:00 p.m. Eastern Standard Time, excluding LICENSOR holidays.
      • LICENSEE will receive the “Hours Included” of technical support, excluding substantial training by telephone, as indicated under the Registered Support Program section on the AIMS Software “Use License” Certificate. Any hours over the hours indicated must be purchased and paid for in advance and at LICENSOR’s then prevailing pricing and policies.
      • To accurately account for LICENSEE’s Telephone Support use time, LICENSOR requires that the individual requesting support must identify him or herself, identify the LICENSEE and identify the PRODUCT Serial Number. LICENSOR will not support the user without these three (3) items.
      • LICENSEE will be “charged” in time against included technical support hours, for technical support and research time (excluding research of valid software bugs), calculated by rounding up to the next five (5) minutes, plus a five (5) minute overhead charge per call.
      • ASP Hosted and SaaS environments only: Phoenix will provide access to the AIMS 3 Software using the Internet, by hosting the application. Phoenix shall operate and maintain the AIMS 3 server (“Server”) in good working order with access restricted to qualified employees or contractors of Phoenix and persons authorized by Customer. Phoenix shall employ its best commercial efforts to ensure the security, confidentiality and integrity of all Customer Data and other proprietary information transmitted through or stored on the Server including without limitation: (i) maintenance of independent archival and nightly backup copies of the AIMS 3 Software and all Customer Data; and (ii) protection from any network attack and other malicious, harmful or disabling data, work code or program.
      • ASP Hosted and SaaS environments only: Phoenix shall maintain regular backups with a minimum retention no less than 35 days.
  1. SUPPORT SERVICES NOT COVERED: LICENSOR has no obligation under this Agreement to support or provide the following:
    • Software problems created by: LICENSEE’s negligence or fault; problems resulting from hardware malfunction or uses of PRODUCT on a computer system other than that authorized by Phoenix; any altered or modified PRODUCT; or a combination of the PRODUCT and any other software.
    • Software that has been superseded by two (2) consecutive PRODUCT Releases.
    • Software problems that do not significantly impair or affect the operation of the PRODUCT.
    • Damages or loss caused by corruption of a database without regard to cause in Phoenix’ sole discretion.
    • Time to correct a corrupted database without regard to cause in Phoenix’ sole discretion.
    • IS Department Support, such as but not limited to, IT environmental issues, including network and hardware issues.
    • SQL Server database installation and administration for non-ASP Hosted and/or SaaS environments.
    • Licensee Website design and support.
    • Substantial training by telephone. (i.e. use of technical support staff as telephone trainers.)
  2. GENERAL EXCLUSIONS

All products, software, services or other requirements to achieve Customer’s intended use defined by this Use License are explicitly identified and included in this Use License.

All products, software, services or other requirements to achieve Customer’s intended use defined by this Use License that are NOT explicitly identified or included in this Use License ARE EXCLUDED. There are no implied inclusions of any kind.

  1. TERM AND TERMINATION: This Agreement shall remain in full force and effect for the period set forth. If, for any reason, including nonpayment of annual fees, the LICENSEE’s End User License Agreement for the PRODUCT is terminated, this Agreement shall be concurrently terminated and any unused services will not be refunded.

END USER LICENSE AGREEMENT

READ THIS PRIOR TO INSTALLING THE SOFTWARE

Phoenix Data Systems, Inc. (LICENSOR) hereby grants you (the “LICENSEE”) a non-exclusive and non-transferable license to use the AIMS 3 SOFTWARE, or in its place any subsequent upgrade, subject to the terms and conditions stated in this License Agreement.

LICENSOR: Phoenix Data Systems, Inc. (the “LICENSOR”) owns the software program AIMS 3 and any optional Component(s) thereof and all documentation (the “PRODUCT” or “SOFTWARE”). Customer acknowledges and agrees that this Agreement grants Customer no title or right of ownership in or to the AIMS 3 Software or Product software application or any component thereof, or to any associated materials or intellectual property, or in or to any enhancements, modifications or improvements (collectively referred to hereinafter as the “AIMS 3 Software”). Customer shall not, at any time, take or cause any action, which would be inconsistent with or tend to impair the rights of Phoenix or its licensors in the AIMS 3 Software.

THE PRODUCT COVERED: The PRODUCT covered by this License Agreement is as specified in LICENSOR’S Picking Ticket, Invoice document or Software “Use License” Certificate distributed to LICENSEE by LICENSOR. The PRODUCT and this License is non-transferable. It may not be transferred to any other operating system, individual or single entity.

SYSTEM/USE: LICENSEE shall have the right to install, access and run the PRODUCT: a) in the operating environment for which it was originally purchased, b) on a storage device, such as a network server, c) in an internal training capacity, and d) in a Disaster Recovery environment, each with the maximum number of computers accessing the PRODUCT at any given point in time, as indicated by LICENSOR’S Picking Ticket, Invoice documents or Software “Use License” Certificate. LICENSEE has no right to: (a) decompile, reverse engineer, disassemble, print, copy or display the PRODUCT or otherwise reduce the PRODUCT to a human perceivable form in whole or in part; (b) publish, release, rent, lease, loan, sell, distribute or transfer the PRODUCT to another person or entity; (c) reproduce the PRODUCT for the use or benefit of anyone other than LICENSEE; (d) alter, modify or create derivative works based upon the PRODUCT either in whole or in part (except that customization that does not alter the source code of the PRODUCT shall not be deemed modification of the PRODUCT in violation of this provision and, further, LICENSOR expressly grants LICENSEE the right to do such customization); or (e) use or permit the use of the PRODUCT for commercial time-sharing arrangements or providing service bureau, data processing, rental, or other services to any third party, provided, however, that this prohibition does not apply to the use of the PRODUCT to process the work or data of an affiliate.

COPYING: The machine-readable form of the PRODUCT may be copied one time to back-up the originally distributed media, one time in a test environment, one time to load the PRODUCT onto your system, one time in an internal training capacity, and one time in a Disaster Recovery environment. The number of original media back-ups, at any one time, shall not exceed one, and that back-up must be labeled with LICENSOR’S copyright notice and serial number. Additional copies of the machine-readable form of the PRODUCT, and your data, may be made exclusively for archival purposes to protect against data loss. No other copies shall be made without LICENSOR’S prior written consent. You may not copy any portion of the documentation, except where the page is marked “COPYABLE MATERIAL,” without prior written consent of LICENSOR.

PROPRIETARY RIGHTS OF LICENSOR: The LICENSOR’S logo, the PRODUCT logo, product names, software, manuals of all types, documentation and other support materials are either patented, copyrighted, trademarked or owned by LICENSOR as trade secrets and/or proprietary information. No part of any documents may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of Phoenix Data Systems, Inc. Any such reproduction or distribution is a violation of the Software Use License and may result in penalties, breach of the Agreement and other such legal action. All techniques, algorithms and processes contained in the PRODUCT, or any modification or extraction thereof, are viewed as trade secrets and/or proprietary information of LICENSOR and must be protected by you, the LICENSEE.

INDEMNIFICATION. To the maximum extent allowed by law, LICENSOR will defend, indemnify and hold harmless LICENSEE and its directors, officers, employees, and agents (collectively, the “Indemnitees”), from and against any and all claims, losses, damages, suits, fees, judgments, costs and expenses, including attorneys’ fees incurred in responding to such Claims, that the Indemnitees may suffer or incur arising out of or in connection with any reasonable claim that the Indemnitees’ use of the Software, Services or Documentation constitutes an infringement, contributory infringement or violation of any patent, copyright, trade secret, trademark, or other third party intellectual property right or a misappropriation of a trade secret or other personal rights of a third party. LICENSOR may retain counsel of its choice to defend the Claims, but may not settle or pay the Claims without LICENSEE’s consent, which will not be unreasonably withheld. If LICENSOR fails to defend the Claims within a reasonable time (not to exceed 10 days) after tender by LICENSEE to LICENSOR, then LICENSEE may provide its own defense and invoice LICENSOR for the costs of such defense as incurred (including attorneys’ fees) or offset such costs against amounts owed to LICENSOR. The provisions of this section will survive termination of this Agreement.

TERM: The License remains in effect until terminated. You may terminate this License Agreement at any time by written notice to LICENSOR, but no fees will be refunded. LICENSOR may terminate the License Agreement, in the event you fail to comply with any term or condition of this Agreement. TRANSFER: Transferring possession of any portion of the program to another party without thirty (30) days written notice and approval by LICENSOR – which will not be unreasonably withheld – terminates your License and makes you liable for damages.

APPLICABLE LAW: This Agreement shall be governed and, if required, contested, in and by the laws of the State of Michigan, and shall inure to the benefits of LICENSOR, its successors, administrators, heirs and assigns.

GENERAL: You, the LICENSEE, assume all responsibility for the selection, use and results obtained from the PRODUCT.

DISCLAIMER AND LIMITATIONS OF WARRANTIES

READ THIS PRIOR TO INSTALLING THE SOFTWARE!

LIMITED WARRANTY: Phoenix Data Systems, Inc. (LICENSOR) warrants that a) the Software furnished hereunder shall be generally free from material programming errors and from material defects in workmanship under normal use and shall operate in conformity with the performance capabilities, specifications, functions and other descriptions and standards in accordance with the documents provided by LICENSOR, when operated on the designated computer and operating system; b) Phoenix will use “best efforts” to ensure that the software is free of all computer viruses LICENSOR does not warrant that: a) the PRODUCT will meet Customer’s requirements, b) the PRODUCT will operate in combinations Customer may select for use, c) the operation of PRODUCT will be uninterrupted or error-free, or d) all PRODUCT errors will be corrected.

LIMITATION OF LICENSOR’S LIABILITIES: EXCEPT AS OTHERWISE EXPLICITLY SET FORTH HEREIN, ALL PRODUCTS AND SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS, AND CUSTOMER’S USE THEREOF IS ENTIRELY AT CUSTOMER’S RISK. PHOENIX HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND: EXPRESSED, IMPLIED OR STATUTORY, OR ARISING BY CUSTOM, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES SHALL PHOENIX OR ITS SUPPLIERS BE HELD RESPONSIBLE FOR ANY DAMAGES OR LOSSES SUFFERED BY CUSTOMER, CUSTOMER’S VENDORS OR CUSTOMER’S PATIENTS AS A RESULT OF CUSTOMER’S DIRECT OR INDIRECT USE OF ANY PHOENIX PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF INFORMATION OR INTERRUPTIONS IN SERVICE, OR DAMAGES ALLEGED TO HAVE RESULTED FROM DELAYS IN PROVIDING PRODUCTS OR SERVICES OR BECAUSE OF THE INADEQUACY OR LIMITED IMPLEMENTATION OF ANY FEATURES OR SERVICES SOLD, PROVIDED, ADMINISTERED OR ARRANGED BY PHOENIX, EVEN IF PHOENIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE WARRANTIES MADE IN THIS AGREEMENT ARE THE ONLY WARRANTIES MADE BY PHOENIX WITH RESPECT TO SERVICES AND SOFTWARE PROVIDED HEREUNDER AND ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.

Some states do not allow the limitation or exclusion of liability for incidental or consequential damages or exclusion of implied warranties; these limitations or exclusions may not apply to you.

LICENSE AGREEMENT: By installing the PRODUCT, you agree to the terms and conditions of the License Agreement set forth.

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