BlueWare, Inc. Wellness Connection Software License Agreement

1. Definitions

In the Agreement, the following definitions shall apply:

"Acceptance of the Software" shall be defined as installing, copying, downloading, accessing, or otherwise using the Software.

"Owner" shall be defined as BlueWare, Inc., having its principal place of business at 3060 West 13th Street, Cadillac, Michigan, 49601.

"Software" shall mean the BlueWare Software Programs identified as Wellness Connection, and which may include associated media, printed materials, and “online” or electronic documentation, also referred to in this Agreement as “Documentation”. The Software also includes any updates, supplements, releases or future versions to the original Software provided to Customer by Owner, or as may be acquired by Customer through Acceptance of the Software and the Documentation supplied for use with such updates, supplements, releases or future versions of the Software as licensed by Owner to Customer under this Agreement.

"Use" shall mean the one time loading, copying or electronic transmission of the Software into a single computer by Customer, for use by the Customer only at its principal place of business, by the specified number of licensed users as contractually agreed to and purchased.

2. Scope of Use

2.1 This Agreement permits Customer to Use the Software on a non-exclusive, non-transferable basis for its own internal use only.

2.2 The Software and Documentation shall not be disclosed, sold, transmitted, or otherwise made available by Customer to any wholly owned subsidiary of Customer or any third party without the express prior written consent of Owner.

2.3 Use of the Software shall be confined to the location, number of licensed users and operating environment or computer as specified in this Agreement. Customer may Use the Software on a back-up computer as may be strictly necessary during breakdowns of its normal computer, on which the Software was originally installed.

2.4 Customer's auditors shall be permitted access to the Software under conditions of confidentiality solely in the course of their audit work.

3. Restrictions on Use of the Software

3.1 Uses of the Software not expressly permitted herein are forbidden.

3.2 Customer shall use the Software solely with and for its own business information.

3.3 Customer shall not decompile, disassemble, or reverse engineer any part of the Software.

3.4 The Software is licensed as a single product, its component parts may not be separated for use on more than one computer, or made available by Customer to any wholly owned subsidiary of Customer or any third party.

3.5 Customer shall not copy Documentation supplied in printed form by Owner. Additional copies of the Software and/or Documentation may be obtained separately from Owner upon payment of the then applicable Software licensing fees.

4. Facilities and System Access

4.1 Customer shall provide such facilities and assistance, as Owner shall reasonably require to carry out its obligations under this Agreement. Assistance shall include (but not be limited to) local and remote system sign-ons and access to equipment and data and the provision of adequate facilities at Customer site(s) where Owner's personnel deliver the Software or provide services. All of the Customer data, records, and information to which Owner has access, or otherwise provided to Owner under this Agreement that is Customer Proprietary and Confidential Information (the “Customer Data”) is and shall remain the property of Customer and Customer shall retain exclusive rights and ownership thereto. The Customer Data or any part of such data shall not be (1) used by Owner for any purpose other than as required under this Agreement, (2) disclosed, sold, assigned, leased or otherwise provided to third parties by Owner other than its Sub-Contractors in connection with this Agreement, or (3) commercially exploited or otherwise used by or on behalf of Owner, its officers, directors, employees, or agents. In the event that Owner becomes legally compelled to disclose any of the Customer Data to a court, administrative agency, or other governmental body, Owner shall provide Customer with written notice thereof with five (5) calendar days of such event so that Customer may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, Owner agrees to furnish only that portion of the Customer Data which is legally required to be furnished, and to exercise best efforts to obtain assurance that confidential treatment will be accorded such data.

4.2 Access by either party, their employees, auditors, or agents to any premises equipment or data of the other shall be subject to the other's normal security and safety regulations.

5. Confidentiality

5.1 Customer acknowledges that the Software, Documentation and any associated information provided by Owner (whether of a commercial or technical nature) constitute valuable and confidential property of Owner.

5.2 Customer shall assure that their employees and any others having permitted access to the Software be bound by written undertakings not to disclose or use the confidential property of Owner except as expressly permitted in this Agreement

5.3 Each party agrees to protect all non-public information received from the other party in the course of this Agreement with the same confidentiality protections as are used, or should be used, for its own confidential information, and in any case by reasonable or commercially acceptable measures.

5.4 Confidentiality shall not apply to information in the public domain or information properly derived, developed or supplied independently. Each party may make such disclosure(s) as are required by law to the authorities by whom such disclosure may be required.

6. Security Measures

6.1 Customer shall be responsible for the secure storage of all copies of the Software and Documentation and all other materials delivered or created on site by Owner whether in written form, on magnetic media or otherwise.

6.2 Customer agrees to make and maintain back-up copies of the Software. Other copying is strictly forbidden. While the terms of this Agreement apply to all copies of the Software, Customer's license for Use applies to the original installed copy of the Software only, except that Customer may use the Software on a back-up computer during breakdown on its normal computer, on which the Software was originally installed.

6.3 Copies of the Software shall be stored only at the Customer’s licensed site or such other site as may be agreed in writing with Owner.

7. Unauthorized Use

If any unauthorized party makes Use of any part of the Software or Documentation and if such Use is attributable to the act or omission of Customer, then Customer shall be liable to pay to Owner, under its then current Software License Terms, for the amount that would have been payable to Owner had such Use of the Software been properly licensed from the first day of unauthorized Use. However, Customer's liability pursuant to this Section shall be discharged if Customer can substantially demonstrate that it maintained adequate precautions to prevent unauthorized Use of the Software and that such Use occurred without its negligence or if such Use ceases within 15 (fifteen) days of the date Customer knew or ought reasonably to have known thereof.

8. Warranty

8.1 Owner warrants that the Software will perform substantially in accordance with the Documentation for a period of 60 (sixty) days from Acceptance of the Software. Maintenance with regard to defects found or reported after the expiration of the 60 (sixty) day warranty period shall be available only under a separate support and maintenance agreement with Owner or its authorized dealer.

8.2 OWNER DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH RESPECT TO THE SOFTWARE.

8.3 Owner's entire liability and Customer's exclusive remedy shall be, at Owner's choice, either (a) return of the price paid or (b) repair, replacement, a "work around" or other remedy that does not meet this limited warranty. Any replacement Software will be warranted for the remainder of the original 60 (sixty) days warranty period or 30 (thirty) days, whichever is longer. At Owner's option, these remedies may not be available outside the territory served by Owner and its dealers.

8.4 Owner's warranty shall be void if any failure of the Software has resulted from modification, misuse, accident, abuse, or misapplication by the Customer.

9. Limitation of Liability

9.1 IN NO EVENT WILL OWNER BE LIABLE TO CUSTOMER FOR DAMAGES, UNDER ANY CLAIM OF CONTRACT, TORT, STATUTORY VIOLATION OR OTHERWISE, CONSISTING OF OR INCLUDING ANY LOSS OF PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE SOFTWARE OR OUT OF USE OR INABILITY TO USE THE SOFTWARE, EVEN IF OWNER HAS BEEN WARNED OF SUCH DAMAGES.

9.2 OWNER'S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT, IN THE AGGREGATE, EXCEED THE INITIAL SOFTWARE LICENSE FEE PAID BY THE CUSTOMER FOR THE SOFTWARE, REGARDLESS OF THE BASIS ON WHICH CUSTOMER MAY BE ENTITILED TO CLAIM DAMAGES FROM OWNER, INCLUDING FUNDATMENTAL BREACH, NEGLIGENCE, MISREPRESENTATION, OR OTHER CONTRACT OR TORT CLAIM.

10. Copyright and Other Rights of Owner

10.1 Customer acknowledges that (either in its own right or under license) Owner holds and will continue to hold all copyright, trademark, and all other property rights in the Software and Documentation (including but not limited to any new releases, versions, upgrades and any modifications made by Customer or for Customer by any party). No ownership rights whatsoever are granted to Customer by this Agreement.

10.2 Customer agrees to reproduce the copyright and trademark notices and other proprietary notices of Owner on all copies of the Software made under this Agreement.

11. Intellectual Property Warranty and Indemnification

11.1 Owner warrants that it has sufficient rights to grant the Software license conferred by this Agreement and that the Software does not infringe upon the copyright, patent or proprietary confidential information of any third party.

11.2 Subject to the further provisions and limitations of this Section, Owner shall indemnify Customer against attorneys' fees and damages awarded against Customer by a court of competent jurisdiction arising from any infringement of copyright, patent or proprietary confidential information of any third party from the authorized use of the Software. Customer may settle or compromise such disputes only with the express written consent of Owner.

11.3 Owner's obligations under this Section to indemnify are subject to all of the following conditions:

11.3.1 Customer must promptly notify Owner in writing of any allegations of infringement made;

11.3.2 Customer may make no admissions of law or fact without Owner's consent (other than as may be required by law);

11.3.3 Customer shall not have contributed to the alleged infringement; and

11.3.4 Customer must permit Owner, at Owner's request and expense, to conduct the litigation and/or conduct and conclude any settlement; and

11.3.5 Customer must cooperate fully and give Owner all reasonable assistance.

11.4 If at any time any claim for indemnity pursuant to this Section arises or in Owner's opinion is reasonably likely to arise, then Owner may, at its option and expense:

11.4.1 Procure the right for Customer to continue to use the Software; or

11.4.2 Modify the Software (without causing diminution in functionality) so that it does not infringe the third party's rights.

11.4.3 Terminate this Agreement as to the Software or module of the Software involved and the corresponding Software license granted hereunder and, as Customer's exclusive remedy, refund the Customer fee paid for the Software or the Software module involved, reduced by 20 percent for each year after initial Acceptance of the Software or such Software module.

12. Force Majeure

Neither party shall be deemed in default of the Agreement to the extent that performance of their obligations (other than obligation of Customer to make payment to Owner) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the control of such party ("Force Majeure") provided that such party gives the other party written notice thereof promptly and, in any event, within 15 (fifteen) days of discovery thereof and uses its best efforts to cure the delay. In the event of such a Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not in excess of 6 (six) months. Force Majeure shall not apply to any obligation to make payment to Owner.

13. Modifications

Any modification to the Software at Customer's request shall be a matter for separate, written agreement between the parties.

14. Governing Law

The laws of the United States of America and of the state of Michigan shall govern this Agreement. Without prejudice to either party's right to claim injunctive relief (together with necessarily incidental relief), Customer and Owner hereby submits unconditionally to the exclusive jurisdiction and venue of the state and federal courts located in Wexford County in the state of Michigan for any action relating to this Agreement of the relationship of the parties.

15. Headings

The heading in this Agreement is inserted for convenience only and shall not affect interpretation.

16. Modification of Agreement; Forbearance

16.1 No modification of this Agreement shall be binding on either party unless made in a written amendment to this Agreement and signed by an authorized signatory of each party.

16.2 Forbearance by either party as to any breach of any obligation under this Agreement shall only constitute a waiver of that obligation to the extent that (in its absolute discretion) it is formally waived in writing by an authorized signatory of that party.

17. Severability

17.1 Each clause in this Agreement shall be deemed to be separate and severable and enforceable accordingly. In the event of any provision in this Agreement is held, by a duly authorized court of law to be unenforceable, all other provisions, and the Agreement as a whole shall remain in effect.

17.2 This Agreement is a part of the complete agreement between Customer and Owner regarding the Software and supercedes all prior writings, agreements, discussions and statements specific to the terms and conditions pursuant to the licensing of the Software.

18. Term and Termination

This License is effective until terminated. It will terminate automatically, without notice from BlueWare, Inc., if Customer fails to comply with any of its provisions. Upon termination Customer shall destroy any and all Documentation and all copies of the Software.