END-USER LICENSE AGREEMENT FOR CAREGIVER TECHNOLOGIES SOFTWARE

IMPORTANT—READ CAREFULLY: This End-User License Agreement ("EULA") is a legal agreement between

you (either an individual or a single entity) and Caregiver Technologies Corporation for the Caregiver Technologies software that accompanies this EULA, which includes associated Caregiver Technologies Internet-based services ("Software"). An amendment or

addendum to this EULA may accompany the Software. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO CAREGIVER TECHNOLOGIES FOR A FULL REFUND, IF APPLICABLE, by contacting Caregiver Technologies Sales Information Center.

1.       GRANT OF LICENSE. Caregiver Technologies grants you the following rights provided that you comply with all terms and conditions of this EULA:

1.1.     Installation and use. You may:

(a) install and use a copy of the Software on one personal computer or other device; and

(b) install additional copies of the Software on other personal computers for the exclusive use of the primary users of the        first copy of the Software.

1.2.     SUBSCRIPTION SERVICE. This Software may only be used in conjunction with a Subscription Service (the “Service”) provided by Caregiver Technologies. If your Service includes a period of "free access" to the Service, the Services Agreement governs your access to the Service during “free access” period. This Software is distributed solely for use by authorized users according to the terms of the EULA.

1.3.     REMOTE TECHNICAL SUPPORT. By using this Software and Services you agree to allow a representative of Caregiver Technologies to remotely connect to and view the Desktop of any computer that the Software is installed on. Caregiver Technologies agrees to make such connections only when either a request is made for technical support or when you have authorized such a connection.

1.4.     License Grant for Documentation. The documentation that accompanies the Software is licensed for internal, non-commercial reference purposes only.

2.       INTERNET-BASED SERVICES. You may not use any Caregiver Technologies Internet-based services associated with the Software in any manner that could damage, disable, overburden, or impair such services or interfere with any other party's use of them. You may not attempt to gain unauthorized access to any service, account, computer systems or networks associated with the Internet-based services.

3.       RESERVATION OF RIGHTS AND OWNERSHIP. Caregiver Technologies reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Caregiver Technologies or its suppliers own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold. This EULA does not grant you any rights to trademarks or service marks of Caregiver Technologies.

4.       LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

5.       NO RENTAL/COMMERCIAL HOSTING. You may not rent, lease, lend or provide commercial hosting services with the Software.

6.       CONSENT TO USE OF DATA. You agree that Caregiver Technologies and its affiliates may collect and use technical and usage information gathered as part of the product support services provided to you, if any, related to the Software. Caregiver Technologies may use this information solely to improve our products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.

7.       ADDITIONAL SOFTWARE/SERVICES. This EULA applies to updates, supplements, add-on components, or Internet-based services components, of the Software that Caregiver Technologies may provide to you or make available to you after the date you obtain your initial copy of the Software, unless they are accompanied by separate terms. Caregiver Technologies reserves the right to discontinue Internet-based services provided to you or made available to you through the use of the Software.

8.       UPGRADES. To use Software identified as an upgrade, you must first be licensed for the software identified by Caregiver Technologies as eligible for the upgrade. After installing the upgrade, you may no longer use the original software that formed the basis for your upgrade eligibility, except as part of the upgraded software.

9.       NOT FOR RESALE SOFTWARE. Software identified as "Not for Resale" or "NFR," may not be sold or otherwise transferred for value, or used for any purpose other than demonstration, test or evaluation.

10.    EXPORT RESTRICTIONS. You acknowledge that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.

11.    SOFTWARE TRANSFER. Internal. You may transfer your copy of the Software to a different device. Transfer to Third Party. You may not transfer any of the rights granted to you under this EULA. If you are the person who initially licensed the Software, you may not make a one-time permanent transfer of this EULA, Software and Certificate of Authenticity (if applicable) to another end user. The transfer may not be an indirect transfer, such as a consignment.

12.    RESTRICTIONS. You may not modify, or create derivative works based upon, the Software in whole or in part. You may not copy the Software except as noted in Section 1.1 of this agreement. You may also (a) make one copy of the Software solely for backup or archival purposes, or (b) transfer the Software to a single hard disk provided that you keep the original solely for backup or archival purposes. You may not remove any proprietary notices or labels on the Software. All copies must contain the same proprietary notices that appear on and in the Software. All rights not expressly set forth hereunder are reserved by Caregiver Technologies.

13.    TERMINATION. This EULA is effective for an unlimited duration unless and until earlier terminated as set forth herein. You may terminate this EULA at any point by destroying all copies of the Software and all of its component parts and canceling the Services. This EULA will terminate automatically if you fail to provide to Caregiver Technologies any agreed upon payment or compensation. Without prejudice to any other rights, Caregiver Technologies may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the Software and all of its component parts.

14.    LIMITED WARRANTY.. Caregiver Technologies warrants that the Software will perform substantially in accordance with the accompanying materials for a period of sixty (60) days from the date of order. If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (SIXTY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE SIXTY DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the Software, including without limitation, provided to you after the expiration of the sixty day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory. LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by Caregiver Technologies, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Software does not meet Caregiver Technologies' Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Section 16 ("Exclusion of Incidental, Consequential and Certain Other Damages") are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have other rights which vary from state/jurisdiction to state/jurisdiction. YOUR EXCLUSIVE REMEDY. Caregiver Technologies' and its suppliers' entire liability and your exclusive remedy for any breach of this Limited Warranty or for any other breach of this EULA or for any other liability relating to the Software shall be, at Caregiver Technologies' option from time to time exercised subject to applicable law, (a) return of the amount paid (if any) for the Software, or (b) repair or replacement of the Software, that does not meet this Limited Warranty. You will receive the remedy elected by Caregiver Technologies without charge, except that you are responsible for any expenses you may incur (e.g. cost of shipping the Software to Caregiver Technologies). This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and Caregiver Technologies will use commercially reasonable efforts to provide your remedy within a commercially reasonable time of your compliance with Caregiver Technologies’ warranty remedy procedures. To exercise your remedy, contact: Caregiver Technologies, Attn. Caregiver Technologies Sales Information Center/13101 S. Pennsylvania Avenue, Oklahoma City, OK 73170 or the Caregiver Technologies authorized business partner serving you.

15.    DISCLAIMER OF WARRANTIES. The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Caregiver Technologies and its suppliers provide the Software and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software, and the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.

16.    EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT  PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CAREGIVER TECHNOLOGIES OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF CAREGIVER TECHNOLOGIES OR ANY SUPPLIER, AND EVEN IF CAREGIVER TECHNOLOGIES OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

17.    LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Caregiver Technologies and any of its suppliers under any provision of this EULA and your exclusive remedy hereunder (except for any remedy of repair or replacement elected by Caregiver Technologies with respect to any breach of the Limited Warranty) shall be limited to the greater of the actual damages you incur in reasonable reliance on the Software up to the amount actually paid by you for the Software or US$5.00. The foregoing limitations, exclusions and disclaimers (including Sections 14, 15 and 16) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.

18.    U.S. GOVERNMENT LICENSE RIGHTS. All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with "Restricted Rights" as provided for in FAR, 48 CFR 52.227-19 or DFAR, 48 CFR 252.227-7013, as applicable.

19.    Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)1(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights 48 CFR 52.227-19, as applicable. Manufacturer is Caregiver Technologies, 13101 S. Pennsylvania Avenue, Suite 12, Oklahoma City, OK 73170.

20.    APPLICABLE LAW. This EULA is governed by the laws of the United States and the State of Oklahoma, without reference to conflict of laws principles, and the parties agree that the sole location and venue for any litigation which may arise hereunder shall be Oklahoma County, Oklahoma.

21.    ENTIRE AGREEMENT; SEVERABILITY. This EULA (including any addendum or amendment to this EULA which is included with the Software) is the entire agreement between you and Caregiver Technologies relating to the Software and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the terms of any Caregiver Technologies policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.

22.    Miscellaneous. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of Caregiver Technologies. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Caregiver Technologies or a duly authorized representative of Caregiver Technologies.

 

Copyright © 2005 Caregiver Technologies. All Rights Reserved.