The Smartxray, LLC (as may be further called LICENSOR) is willing to license this software to you (as may be further called LICENSEE) only on the condition that you accept all of the terms contained in this license agreement.

This is a legal agreement between you (either an individual end-user or an entity) and The Smartxray, LLC (“Agreement”). By using this software, you are agreeing to be bound by the terms and conditions of this Agreement. If you do not agree to the terms and conditions of this Agreement, promptly return the software and other items that are part of this product in their original package with your sales receipt to your point of purchase for a full refund, or if you have downloaded this software from a The Smartxray, LLC web site, then you must stop using the software and destroy any copies of the software in your possession or control.

1. Grant of Agreement

Subject to the terms and conditions of this Agreement, The Smartxray, LLC and its suppliers grant to you a nonexclusive license to use one copy of the software program and any documentation accompanying this Agreement (“Software”) on one computer only with the The Smartxray, LLC product you have purchased. No other rights are granted. The Software is in use if it is loaded on the computer's permanent or temporary memory. For backup purposes only, you may make one copy of the Software. You must include on the backup copy all copyright and other notices included on the Software as supplied by The Smartxray, LLC. Installation on a network server for the sole purpose of your internal distribution of the Software is permitted only if you have purchased an individual Software license for each networked computer to which the Software is distributed.

2. Restrictions

The Software contains copyrighted material, trade secrets, and other proprietary materials of The Smartxray, LLC and its licensors. You agree that in order to protect those proprietary materials, except as expressly permitted by applicable law, neither you nor a third party acting on your behalf will:

• Decompile, disassemble or reverse engineer the Software;
• Modify or create derivative works of the Software;
• Use the Software in any manner to provide service bureau, commercial time-sharing or other computer services to third parties;
• Transmit the Software or provide its functionality, in whole or in part, over the Internet or other network (except as expressly permitted above); or
• Sell, distribute, rent, lease, sublicense or otherwise transfer the Software to a third party, except upon a permanent transfer of the The Smartxray, LLC product using the Software, provided that: all Software updates are included in the transfer, you do not retain a copy of the Software, and the transferee agrees to be bound by the terms and conditions in this Agreement.

3. Ownership

The Software is licensed, not sold, to you for use only under the terms and conditions of this Agreement, and The Smartxray, LLC reserves all rights not expressly granted to you in this Agreement. The Smartxray, LLC and/or its licensors retain title to the Software, and all intellectual property rights therein. The Software is valuable, confidential, copyrighted, and trade secret property of Licensor or third parties that have contributed to the Software. As between the parties, The Smartxray, LLC and/or its licensors owns all right, title and interest in and to the Application Services, including without limitation, all ancillary and interface software, all current and future enhancements, modifications, revisions, new releases and updates thereof and any derivative works based thereon and all documentation thereto, all copyrights, trade secrets, and patents therein. Nothing in this provision shall preclude The Smartxray, LLC and/or its licensors from implementing features, ideas, processes or technology suggested by a customer, and promoting the implements to the marketplace. The Smartxray, LLC and/or its licensors shall own any rights, intellectual property, and title to the code associated with said implementation. Except as expressly permitted hereby, copying of any portion of the content and intellectual property included in the Application Services is prohibited. Licensee shall not remove any trademark or copyright notices from the Application Services or any provided documentation. Any documentation provided by The Smartxray, LLC and/or its licensors for use by Licensee on its website shall be used only during the term of this Agreement, and only for the period of time Licensor provides for in writing. You may not use the The Smartxray, LLC and/or its licensors marks, without their express written consent.

4. Termination

This Agreement is effective until terminated. Upon any violation of any of the provisions of this Agreement, rights to use the Software shall automatically terminate and the Software must be returned to The Smartxray, LLC or all copies of the Software destroyed. You may also terminate this Agreement at any time by destroying all copies of the Software in your possession or control. If The Smartxray, LLC makes a request via public announcement or press release to stop using the copies of the Software, you will comply immediately with this request. The provisions of paragraphs 3, 7, 8 and 12 will survive any termination of this Agreement.

5. Limited Product Warranty

The Smartxray, LLC warrants to you that the Software will substantially conform to its published documentation and the media containing the Software shall be free from defects in material, each for a period of ninety (90) days from the date of purchase. The Smartxray, LLC's limited warranty is nontransferable and is limited to the original purchaser. This warranty gives you specific legal rights, and you may also have other rights which vary under local laws.

6. Remedies

The Smartxray, LLC's entire liability and your exclusive remedy for any breach of warranty shall be, at The Smartxray, LLC's option, to:

• Repair or replace the Software or media, provided that the Software or media is returned to the point of purchase or such other place as The Smartxray, LLC may direct, with a copy of the sales receipt; or
• Refund the price paid. Any replacement Software or media will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. These remedies are void if failure of the Software or media has resulted from accident, abuse, or misapplication.

7. Disclaimer of Warranty

The warranties expressly set forth in this agreement replace all other warranties. The Smartxray, LLC AND ITS SUPPLIERS expressly disclaim all other warranties, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose and noninfringement of third-party rights with respect to the software OR MEDIA, and any warranties of non-interference or accuracy of informational content. No The Smartxray, LLC dealer, agent, or employee is authorized to make any modification, extension, or addition to this warranty. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.

8. Limitation of Liability

In no event will The Smartxray, LLC or its SUPPLIERS be liable for any costs of procurement of substitute products or services, lost profits, loss of information or data, or any other special, indirect, consequential, or incidental damages arising in any way out of the sale of, use of, or inability to use any The Smartxray, LLC product or service, even if The Smartxray, LLC has been advised of the possibility of such damages. In no case shall The Smartxray, LLC's AND ITS SUPPLIERS’ TOTAL liability exceed the actual money paid for the THE SMARTXRAY, LLC product OR SERVICE GIVING RISE TO THE LIABILITY. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. The above limitations will not apply in case of personal injury where and to the extent that applicable law requires such liability.

9. U.S. Government Restricted Rights

Use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988) FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. The Smartxray, LLC 6267 Isla Verde Ave., #9R, Carolina, PR 00979, USA.

10. Export Law Assurances

You agree and certify that neither the Software nor any other technical data received from The Smartxray, LLC will be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. If you have rightfully obtained the Software outside of the United States, you agree that you will not re-export the Software nor any other technical data received from The Smartxray, LLC, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which you obtained the Software.

11. Agents and Third Party Purchasers

If you are acquiring the Software on behalf of another person or entity, you represent and warrant that you have the authority to bind the party or entity for which you are acquiring the Software to the terms and conditions of this Agreement.

12. General Terms and Conditions

This Agreement will be governed by and construed in accordance with the laws of the United States and the Commonwealth of Puerto Rico, without regard to or application of its choice of law rules or principles. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement constitutes the entire agreement between the parties with respect to the use of the Software and supersedes all prior or contemporaneous understandings, communications or agreements, written or oral, regarding such subject matter. The Smartxray, LLC may, in its sole discretion, modify portions of this Agreement at any time. The Smartxray, LLC may notify you of any changes by posting notice of such modifications on The Smartxray, LLC’s website(s) or sending notice via e-mail, postal mail, or other means. Your continued use of the Software following notice of such modifications shall be deemed to be your acceptance of any such modifications to the Agreement. If you do not agree to any such modifications, you must immediately stop using the Software and destroy all copies of the Software in your possession or control. The Software is protected by United States copyright law and international treaty. Unauthorized reproduction or distribution of the Software is subject to civil and criminal penalties.

13. Authorized Users

Authorized Users are those employees and contractors of Licensee and its Affiliates who are authorized to use the Application Services and have been assigned an individual user ID. Licensee shall require any contractors that are designated as Authorized Users to be bound by confidentiality and license provisions that are substantially as protective of Licensor's Confidential Information and Application Services as those provisions are set forth in this Agreement. Licensor agrees to provide Authorized Users with access to the Application Services via the URL https://www.thesmartxray.com and any successor site thereto or such other websites as may be designated by Licensor ("Web Site"). Licensee is responsible for providing Internet access, Web browsers, and appropriate hardware and software to all Authorized Users as necessary for access to the Application Services.

14. Designated Representative

Licensee shall appoint an individual to serve as Licensee’s Designated Representative. Licensee shall provide the name and contact information of this person to Licensor. This individual shall, in addition to performing any specific duties mentioned herein, attend all Coaching and Training sessions. This person shall ensure that Licensee uses good-faith efforts in the process of learning of the Application Services during Licensor-provided training. Licensee shall, at all times, use reasonable efforts to avoid changing the Designated Representative. In the event a change of Designated Representative is required, Licensee shall use reasonable efforts to provide Licensor with at least 10 days prior written notice of any change in the Designated Representative. Licensor reserves the right to reject Licensee’s choice of replacement.

15. Third Party Services

Licensee acknowledges and agrees that it is possible to link to third-party applications and services ("Third Party Services"). Such Third-Party Services are not part of the Application Services, and Licensor disclaims all responsibility, warranties, and liability pertaining to same. Any such Third-Party Service shall be provided to Licensee pursuant to the terms and conditions offered (and if applicable, for the fees charged) by such Third-Party Services provider, and Licensor is not a party to any such agreement.

16. Charges and Taxes

1. License Fee

   The annual subscription fee, subject to Order Form, entitles the Licensee’s Authorized Users to the following for a period of one year: (i) the use of the Application Services; (ii) technical support via email and support tickets; (iii) periodic Application Services updates; and (iv) access to the user documentation.

2. Fees

   The annual subscription fee entitles users to the use of services outlined in Order Form, and to the use of additional services as outlined in the Invoice. The annual subscription fee does not cover fees for, or include, Consulting Services.

3. Additional Subscriptions

   Each additional subscription to an Application Service shall be charged at the rate outlined in Order Form. If Licensee purchases one or more additional subscriptions during an existing license term, the cost of the additional subscription or subscriptions will be pro-rated for that license term.

4. Price Increase

   Upon annual license renewal, Licensor reserves the right to implement a price increase, not to exceed 5% in a given contract year. This increase shall apply to all subscriptions and Application Services purchased by Licensee. Additional subscriptions to an Application Service, purchased by Licensee after the Initial Term, shall be charged at the price in effect at the time of such purchase(s).

5. Taxes

   Licensee shall be solely liable for payment of any state or local sales, use, excise, value-added, or other taxes of a similar nature, if any, that may be due on account of Licensee's and Authorized Users' use of the Application Services.

6. Invoicing

   All payments hereunder shall be made in U.S. dollars. Unless otherwise stated in the Order Form, all amounts invoiced hereunder shall be due and payable thirty (30) days after the date of the invoice. Not more than once every twelve months during the term of the Agreement, Licensor reserves the right to institute new or additional fees, and to change its policies, methods, or procedures with respect to pricing and billing, upon not less than sixty (60) days' notice to Licensee. During any such notice period, Licensee shall have the option to terminate access to the Application Services rather than pay the increased fees.

7. Failure to Pay

   If Licensee fails to pay any outstanding balance for one (1) month following the date upon which such charge was due, Licensor reserves the right to suspend its performance of the Application Services without notice to Licensee and without any liability for any damages incurred as a result of such suspension. If Licensor elects to suspend such performance, upon payment of the appropriate balance (and, if requested by Licensor, receipt of adequate assurances of future payment from Licensee) Licensor may, at its sole discretion, reinstate its performance within thirty (30) days of suspension.

17. Term, Automatic Renewal & Termination

1. Term

   The initial license term shall commence upon the date the Order Form for the Application Services is executed by the parties ("Initial License Year"). At the end of the Initial License Year, this Agreement will renew ("Auto-Renew") for a period of one (1) year, and each year thereafter (“Auto Renew Term”), unless Licensee provides written notice of termination not less than thirty (30) days prior to end of the then-current term.

2. Mutual Termination Rights

   In the event that either party is in breach of any material obligation set forth in this Agreement, that party shall notify the other party in writing. If the breaching party has not cured its breach within sixty (60) days following such notice, then the other party may elect to terminate this Agreement. In the event of termination by Licensor, Licensee shall be entitled to a pro rata refund.

3. Bankruptcy

   If one of the parties is declared insolvent or bankrupt, either party may immediately terminate this Agreement.

4. Conduct

   Licensor may terminate this Agreement for certain Licensee conduct or convenience. If Licensor determines that Licensee uses or seeks to use the Application Services in a manner that is unlawful, or that is inconsistent with Licensee’s rights, duties, and obligations hereunder, Licensor may immediately terminate this Agreement.

5. 30-day Cancellation

   If Licensee is not satisfied with the Application Services, Licensee may cancel for up to thirty (30) days from the date of execution of this agreement for no charge. Upon such cancellation, Licensee may not use any of Licensor’s copyrighted material, policies, procedures, templates, agreements, or work product.

6. Effect of Termination

   Upon termination of the Application Services, Licensee shall no longer be permitted access to the Application Services and each Authorized User ID shall be deactivated. Termination, for whatever reason, shall not affect Licensor's entitlement to any sums due for Application Services performed prior to such termination.

7. Transition Assistance

   Prior to and for a period not to exceed thirty (30) days following any termination or expiration of this Agreement, Licensor agrees to cooperate in good faith with Licensee at Licensee's request in connection with transition matters, including the transfer to Licensee or an entity designated by Licensee of all Licensee Data that may be stored, housed, or hosted by Licensor or on the Application Services. During the applicable transition period, Licensor will cooperate and work in consultation with Licensee to provide for the orderly transfer of the operations to the Designated Representative of Licensee. Notwithstanding the foregoing, in the event of any termination of this Agreement due to a breach by Licensee of its obligations to pay Licensor fees that are due and outstanding, Licensor will not be responsible to provide the transition assistance set forth in this Section until such time as Licensee has paid all undisputed fees that are due and outstanding in accordance with the terms of this Agreement.

18. User ID and Password Protection Policies

All Authorized Users of the Application Services and Web Site will require to create unique USER IDs. Authorized Users shall maintain as personal and confidential the assigned unique USER IDs and activating passwords for the Application Services. Authorized Users are prohibited from transferring or sharing the Licensee-assigned unique USER IDs and from revealing the activating passwords to any other person(s). Any violation of the foregoing may result in an immediate termination of Licensee's access rights to the Application Services. Licensee is responsible for all use or misuse of the Application Services by the Authorized Users of any third party using the USER ID and password of an Authorized User. Licensee and each Authorized User are responsible for maintaining the security and confidentiality of the USER IDs and passwords assigned to them for access to the Application Services. Licensee shall be responsible for assigned account USER IDs, active passwords, and/or granting permissions, and authorizing vendor/client account associations in the Application Services.

19. Data Retention and Ownership of Licensee Information

Licensor shall maintain all transaction and customer data throughout the lifetime of a Licensee's subscription. Licensor does not own, nor will Licensor use or disclose to any third party, any data, information, or material (“Licensee Data”) that Authorized Users submit to the Application Services. Application services do not require input of protected health information (PHI) by a Licensee. Licensee is responsible for not storing any protected health information (PHI) on the Application Services. The Licensee has sole responsibility for the accuracy, quality, integrity, lawfulness, reliability, and appropriateness of all Licensee derived Data. Licensee hereby grants to Licensor a limited, non-exclusive, non-transferable license to access, host, copy, format, display, distribute, store and use (and to permit Licensor’s subcontractors to do the same) Licensee Data for the sole and exclusive purpose of providing the Application Services for the benefit of Licensee in accordance with this Agreement. Licensee hereby grants Licensor access to Licensee’s business associate and vendor contact information. Licensor will within ninety (90) days and at no additional charge provide Licensee with all Licensee Data in Licensor's possession in the native format of such data within the Application Services. If Licensee requires such Licensee Data to be provided in a different format, or as a subset of Licensee Data (as opposed to all Licensee Data), such work shall be performed for additional charges at Licensor's then-current fee for such services. In such event, the Licensee Data shall be provided to Licensee within sixty (60) days after request and payment of the additional fees for such services.

20. Confidentiality and Security

1. Definition

   "Confidential Information" shall mean any information, whether provided or retained in writing, verbally, by electronic or other data transmission, or in any other form or media whatsoever or obtained through on-site visits and whether furnished or made available before or after the date of this Agreement, that is confidential, proprietary, or otherwise not generally available to the public, including without limitation, trade secrets, marketing and sales information, product information, technical information and technology, personally identifiable information, supplier information, information about trade techniques and other processes and procedures, financial information and business information, compliance information, and/or plans and prospects.

2. Protection of Confidential Information

   Neither party shall disclose to any third party during the term or after the termination or expiration of this Agreement, and each party shall keep confidential, all Confidential Information of the other, protecting the confidentiality thereof with the same level of efforts that it employs to protect the confidentiality of its own proprietary and confidential information of like importance to it, and in any event, by reasonable means. Each party may, however, disclose the Confidential Information of the other to those of such party's personnel engaged in a use permitted by this Agreement and with a need to know, provided that such personnel (i) are directed to treat such Confidential Information confidentially and not to use it other than as permitted by herein, or (ii) are subject to any legal duty to maintain the confidentiality thereof. Neither party shall use the Confidential Information of the other party except as necessary in and during the performance of this Agreement, or as expressly permitted hereunder. Each party shall be responsible and liable for any improper use or disclosure of any Confidential Information of the other by such party's officers, partners, principals, employees, agents or independent contractors (including individuals who hereafter become former partners, principals, employee agents or independent contractors). Licensee acknowledges that elements of the Confidential Information of Licensor, including, without limitation, the Application Services, and the terms, conditions and fees under this Agreement, are trade secrets of Licensor.

3. Confidentiality Exceptions

   The obligations of this Section shall not apply (i) to any Confidential Information for a period longer than it is legally permissible to restrict disclosure of that item of Confidential Information, or (ii) to any Confidential Information that a party can demonstrate was: (a) at the time of disclosure to such party, in the public domain or commonly known in either party's industry; (b) after disclosure to such party, published or otherwise entered the public domain through no fault of such party; (c) in the possession of such party at the time of disclosure to it, if such party was not then under an obligation of confidentiality with respect thereto; (d) received after disclosure to such party from a third-party who had a lawful right to disclose such Confidential Information to it; (e) independently developed by such party without reference to Confidential Information of the other party; or (f) disclosed with the prior written approval of the other party.

4. Required Disclosure

   Either party may disclose Confidential Information (including, as applicable, Licensee Data) to the extent required by law or by order of a court or governmental agency, provided, however, that the recipient of such Confidential Information shall give the owner of such Confidential Information prompt notice, and shall provide reasonable cooperation to the owner of such Confidential Information if the owner wishes to obtain a protective order or otherwise protect the confidentiality of such Confidential Information. The owner of such Confidential Information reserves the right to obtain, and shall be solely responsible for obtaining, a protective order, order to quash, or other similar form of protection for the confidentiality of such Confidential Information.

5. Notification. Survival

   In the event of any unauthorized disclosure or loss of Confidential Information, the receiving party shall immediately notify the disclosing party. Notwithstanding anything in this Agreement to the contrary, the obligations of the parties set forth in Section 20(a)-(e) with respect to Confidential Information will remain in effect during the term of this Agreement, and (i) with respect to Confidential Information that does not qualify as a trade secret under applicable law, for a period of three (3) years following the expiration or termination of this Agreement, and (ii) with respect to trade secrets, for so long as such Confidential Information remains a trade secret.

6. Security

   Licensor will use all commercially reasonable (i.e., standard in the industry) efforts, to implement and maintain website security features and standards to protect the confidentiality and integrity of Licensee's Confidential Information. In addition, Licensor will implement the following policies and practices:

   • All physical access to the Web Site and Application Services where nonpublic personal and Licensee information is maintained, shall be controlled and monitored by security systems.
   • The security systems will offer a high degree of resistance to tampering and circumvention. These systems will limit data access to Licensor staff and contract staff on a "need-to-know" basis for maintaining an individual Authorized User's ability to access and use services within the Web Site and Application Services.

21. Indemnity of Licensee

Licensee shall, to the fullest extent allowed by law, defend, indemnify and hold harmless Licensor, any Third-Party provider, and any third-party contributor to the Application Services, from and against any and all claims and losses arising from Licensee's use of the Application Services, except that this indemnity shall not apply where such third-party claim or losses would not have occurred but for the gross negligence or the willful misconduct of Licensor, any Third-Party Service provider, or any third-party contributor to the Application Services.

22. Service Level Provisions

Notification of Problem and Reporting

1. Licensor shall notify Licensee by electronic notification of any planned outages (“scheduled maintenance windows”) of the Application Services for maintenance purposes at least 24 hours prior to the planned outage.

2. The designated Licensee representative(s) will contact Licensor Technical Support for all problems related to the Application Services. Licensor will determine the nature of the problem, set the relative priority and open a trouble ticket to initiate the problem resolution process. Licensor Technical Support is available via email and support tickets, 8:00 a.m. to 8:00 p.m. Eastern Time, Monday through Friday.

23. Force Majeure

Other than with respect to Licensee’s failure to make payments under this Agreement, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses, or destruction, or malfunction of any equipment, or any consequence thereof, caused by, or due to any cause beyond its reasonable control, including, but not limited to acts of God, pandemic, epidemic, acts of any government, war or other hostilities, the elements, fire, explosion, power failure, telecommunications failure, industrial or labor dispute, inability to obtain supplies, or breakdown of equipment or any other causes beyond its reasonable control.

The Smartxray, LLC
6267 Isla Verde Ave., #9R
Carolina, Puerto Rico, 00979, USA

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February 18, 2023 5:57 am EDT	Software License Agreement Uploaded by Gaurav Saxena - noreply@thesmartxray.com IP 122.175.197.227

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