Legal Notice

Software License Agreement

Last Updated: 10/22/2009

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (AS AMENDED AND MODIFIED FROM TIME TO TIME, THIS “AGREEMENT”) CAREFULLY BEFORE USING ANY SOFTWARE (AS DEFINED BELOW) PROVIDED BY MENTOR CORPORATION (“MENTOR”) ON THIS WEBSITE (THE “SITE”).  IT IS IMPORTANT THAT YOU (AS DEFINED BELOW) READ CAREFULLY AND UNDERSTAND THIS AGREEMENT.  MENTOR STRONGLY SUGGESTS THAT YOU PRINT A COPY OF THIS AGREEMENT AND KEEP A COPY THEREOF FOR YOUR RECORDS.

BY CLICKING THE “I ACCEPT" BUTTON LOCATED ON THIS PAGE OF THE SITE, YOU AND, IF APPLICABLE, THE CORPORATION, PARTNERSHIP OR OTHER LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, “YOU”) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND/OR DO NOT AGREE TO BE BOUND THEREBY, PLEASE CLICK THE “I DO NOT ACCEPT" BUTTON.  IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL NOT BE ALLOWED ACCESS TO THE SOFTWARE.

BY SELECTING THE “I DO ACCEPT” BUTTON, YOU AGREE TO THE FOLLOWING:

1.              Definitions.

1.1           “Affiliates” shall mean, with respect to any Person, any other Person which directly or indirectly controls, is controlled by, or is under common control with, such Person.  A Person shall be regarded as in control of another Person if it owns, or directly or indirectly controls, at least fifty percent (50%) of the voting stock or other ownership interest of the other Person, or if it directly or indirectly possesses the power to direct or cause the direction of the management and policies of the other Person by any means whatsoever.

1.2           “Confidential Information” shall mean the Software and any other information, data or documents of confidential nature regarding the Software or business of Mentor® and/or its Affiliates.

1.3           “Derivative Work” shall mean a new or modified work that is based on or derived from a preexisting work, including, without limitation, a work that, in the absence of a license, would infringe the copyright in such preexisting work or that uses trade secrets or other proprietary information with respect to such preexisting work.

1.4           “Documentation” shall mean, with respect to each Module, such manuals, documentation and any other supporting materials relating to such Module as are maintained by Mentor® and generally provided by Mentor® to licensees of such Module.

1.5           “Errors” shall have the meaning set forth in Section 4.1.2.

1.6           “HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996, as amended to date.

1.7           “Hosting Services” shall mean the provision, monitoring, management and physical security of hardware, infrastructure software and Internet connectivity required to provide the Software.

1.8           “Intellectual Property Rights” shall mean, collectively, all (a) patents and patent applications anywhere in the world, including, without limitation, utility models, design patents and certificates of invention, and all divisionals, continuations, continuations-in-part, reissues, renewals, extensions or additions to each of the foregoing, (b) Trademarks, and all goodwill therein, (c) copyrights, designs, data and database rights and registrations and applications for registration thereof, including moral rights of authors, (d) mask works and registrations and applications for registration thereof, (e) inventions, invention disclosures, statutory invention registrations, trade secrets and confidential business information, know-how, research and development information, whether patentable or non-patentable, whether copyrightable or non-copyrightable and whether or not reduced to practice, and (g) other proprietary rights relating to any of the foregoing (including remedies against infringement thereof and rights of protection of interest therein under the laws of all jurisdictions).

1.9           “Materials” shall mean any and all data, information, content, and other materials prepared by you (or on your behalf) through the use of, stored by you (or on your behalf) in connection with, or transmitted by you (or on your behalf) by or through, the Software, other than the Output.

1.10        “Modules” shall mean, collectively, the object code forms of each of the following:  the Patient Management Module, Billing module, EMR (Electronic Medical Records) module, Inventory module and Scheduler module, each offered by Mentor® to potential licensees on the Site at the time of an Order. 

1.11        “Order” shall mean your purchase of a license of one or more Modules through the Site in accordance with the terms and conditions of this Agreement.

1.12        “Output” shall mean all output generated by the Software and the use thereof.

1.13        “Patient Management Module” shall mean the core patient management module, containing and allowing the processing of core aspects of patient information, including, without limitation, insurance and employment information, demographical information, information regarding allergies and co-morbids, as well as point of sale, quoting, reporting, administrative rights set-up and other information.

1.14        “Person” shall mean an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, pool, syndicate, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed herein.

1.15        “Purpose” shall mean billing, records management and processing, inventory management, scheduling and other internal uses for your medical practice, excluding any and all commercial applications or uses in connection with or for the benefit of Third Parties.

1.16        “Software” shall mean, collectively, those one or more Modules you license through an Order, together with all Updates and Documentation thereto.

1.17        “Term” shall have the meaning set forth in Section 12.1.

1.18        “Territory” shall mean the United States of America.

1.19        “Third Party” shall mean any Person other than you, Mentor® and their respective Affiliates.

1.20        “Trademarks” shall mean, collectively, (a) the trademarks, trade names, and service marks used by Mentor® and/or its Affiliates, whether registered or unregistered; (b) the respective stylistic marks and distinctive logotypes for such trademarks, trade names, and service marks; and (c) such other marks and logotypes as Mentor® may designate from time to time in writing.

1.21        “Updates” shall mean , with respect to each Module, the object code forms of any modifications, error corrections, bug fixes, new releases, or other updates of or to such Module that are generally provided by Mentor® to licensees of such Module.

2.              License.

2.1           License Grants.

2.1.1      Subject to the terms and conditions of this Agreement, including without limitation, the timely payment of all applicable fees, Mentor® hereby grants to you a nonexclusive, nontransferable, nonsublicensable, limited right and license, during the Term, to access (by means of the Hosting Services) and use the Software solely for the Purpose in the Territory.

2.1.2      You shall have only those rights in or to the Software and any Derivative Work thereof that are expressly granted to you pursuant to this Agreement.  Nothing contained in this Agreement shall be construed as granting, by implication, estoppel or otherwise, any licenses or rights other than those expressly granted to you pursuant to this Agreement.

2.2           Restrictions.  You shall not use the Software for any purpose other than the Purpose.  You shall not use the Software outside of the Territory.  You shall not remove, and shall affix to the media upon which it is copied, any proprietary markings or legends placed upon or contained within the Software.  You shall not (i) license, sublicense, sell, resell, rent, lease, land, transfer, assign, distribute, time share or otherwise commercially exploit or make the Software available to any Third Party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of Third Party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Software, the Site, or the data contained in each of the foregoing; or (vi) attempt to gain unauthorized access to the Software, the Site or their respective related systems or networks.  You shall not directly or indirectly modify, translate, decompile, disassemble or otherwise reverse engineer, or determine or attempt to determine the source or executable code, or protocols of the Software, or create any Derivative Works based upon the Software, and you shall not permit, authorize or assist anyone else to do so.  You also hereby agree that any works created in violation of this subsection are Derivative Works and, as such, you hereby assign all right, title and interest, including, without limitation, all Intellectual Property Rights, therein and thereto to Mentor®.  You shall not encumber or purport to encumber the Software or any right, title and interest, including, without limitation, any Intellectual Property Rights, therein and thereto.

CAUTION:  ANY ATTEMPTED IMPROPER USE OR AN ATTEMPT BY YOU OR ON YOUR BEHALF TO DELIBERATELY DAMAGE OR CORRUPT THE SITE OR THE SOFTWARE MAY VIOLATE CRIMINAL AND CIVIL LAWS.  SHOULD SUCH AN ATTEMPT BE MADE, MENTOR AND ITS RESPECTIVE AGENTS RESERVE THE RIGHT TO PROSECUTE AND SEEK DAMAGES FROM YOU TO THE FULLEST EXTENT OF THE LAW.

2.3           Ownership.  As between Mentor® and you, Mentor® retains all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to the Software and any portion thereof, including, without limitation, any copy or Derivative Work thereof (or any portion thereof).  You shall take any and all actions necessary or reasonably requested by Mentor® to evidence, maintain, enforce or defend the foregoing.  You shall not take any action to jeopardize, limit or interfere in any manner with Mentor®’s ownership of and rights with respect to the Software, any portion thereof, including, without limitation, any copy or Derivative Work thereof (or any portion thereof), and all Intellectual Property Rights in and to each of the foregoing.

2.4           Grant of License in Materials. 

2.4.1      You hereby grant to Mentor® a worldwide, royalty-free, nonexclusive, limited, nontransferable (except pursuant to Section 13.6), nonsublicensable (except to the extent necessary for provision of the Hosting Services) right and license, to use, reproduce, distribute, transmit, perform (publicly, digitally, or otherwise), display (publicly or otherwise), and make Derivative Works of the Materials and Output for the purpose of (a) making the Software available to you during the Term, (b) performing the Hosting Services and back-up during the Term, and (c) analytic, statistical, security, quality control, and other similar use.  Mentor® shall be the sole and exclusive owner of all data and information resulting from such analytic, statistical, security, quality control, and similar use.  You represent and warrant to Mentor® that you have the right to grant the foregoing licenses. 

2.4.2      Mentor® hereby acknowledges and agrees that certain data and information in the Materials and/or Output may be health and other personal data and information of Third Parties, subject to privacy and other laws and regulations.  Mentor® hereby covenants, warrants and represents that Mentor® shall comply with such privacy and other laws, rules and regulations, including, without limitation, HIPAA, and shall not use such data and information for any purpose other than as set forth in Section 2.4.1.

3.              Access.

3.1           User Names and Passwords.  You may access the Software through a combination of a user name and password provided to you by Mentor®.  In the event that the confidentiality of your user name and/or corresponding password is compromised, Mentor® may provide you with new user name and password.

3.2           User Name and Password Use and Protection. 

3.2.1      You shall use your user name and password to access the Software.  The user name and password may be used concurrently at more than one computer station.  Upon initial access to the Software through use of your user name and password, you shall specify the names of employees and physicians in your medical practice who are authorized to use such user name and password.  You shall be solely responsible for timely removing and/or adding (and/or requesting Mentor® to assist you in removing and/or adding) names of such employees and/or physicians therefrom.  You shall ensure that every time such authorized employee or physician uses your user name and password to access the Software, each such employee or physician indentifies him/herself by selecting a checkbox next to his/her name.

3.2.2      You shall be solely and entirely responsible for maintaining the confidentiality of the user name and password assigned to you.  Without limiting the generality of the foregoing, you shall restrict access and carefully and consistently monitor to your computer station(s), and shall use secure HTTP (HTTPS) connections for web applications to ensure that all Materials and Output are protected.  You shall also be solely and entirely responsible for ensuring use thereof in accordance with the terms and conditions set forth in this Agreement and otherwise provided to you from time to time by Mentor®.  You shall be entirely responsible for any and all activities made using the user name and password assigned to you, including any fees which may be incurred and including any damages caused due to use thereof.  You shall immediately notify Mentor® in writing if your password is lost, stolen, disclosed to an unauthorized Third Party, or otherwise has been compromised.  Following such notification, Mentor® shall use commercially reasonable efforts to deactivate any such compromised password and issue a replacement password to you.

4.              Hosting Services; Back-Up. 

4.1           Hosting Services. 

4.1.1      Mentor® shall ensure that the Software and the Hosting Services are available no less than ninety-nine point five percent (99.50 %) of the time.  Upon learning of any interruption of access to the Software or the Hosting Services, Mentor® shall use commercially reasonable efforts to remedy such interruption.  Mentor® shall provide you with prompt notice of any interruption or potential interruption, as well as continual periodic updates during any interruption regarding Mentor®’s progress in remedying such interruption.

4.1.2      During the Term, Mentor® shall provide reasonable first level maintenance and support with respect to the Software and the Hosting Services by telephone, through online technical support, help desk support, remote database administration services support, fax and e-mail, during Mentor®’s normal business hours, Monday through Friday, 8 AM to 5 PM Pacific Daylight Time (excluding Mentor® holidays).  Mentor® shall respond to your inquiries regarding errors, bugs, and problems with the Software and the Hosting Services (collectively, “Errors”) within fifteen (15) minutes after receipt of such inquiry.  Mentor® shall respond to an inquiry regarding Errors placed outside of Mentor®’s normal business hours within fifteen (15) minutes from the beginning of the business day immediately following such inquiry.

4.1.3      Mentor® shall use commercially reasonable efforts to implement security measures consistent with generally-accepted security standards for the provision of services of nature similar to the services provided under this Agreement, including, without limitation, encrypting all Materials and Output in transmission prior to storing such Materials and/or Output, implementing access controls to the site(s) where such Materials and/or Output, and setting up audit controls of such site(s).   

4.2           Back-Up. 

4.2.1      With respect to all Materials and the Output, Mentor® shall perform (a) differential back-up every thirty (30) minutes, (b) daily back-up, and (c) weekly back-up, each Sunday.  Each back-up shall be redundantly stored in multiple disparate geographical locations to mitigate risk associated with natural disasters, network failures and other sources of downtime.  In the event of loss of any Materials or Output, Mentor® shall use commercially reasonable efforts to restore such Materials and/or Output in a timely manner; provided that you hereby acknowledge and agree that Mentor® hereby makes no guarantee with respect to the time required for a specific restoration.

4.2.2      YOU AGREE AND ACKNOWLEDGE THAT THE BACKUP OF THE MATERIALS AND THE OUTPUT IS NOT INTENDED TO BE A COMPREHENSIVE DISASTER RECOVERY SOLUTION, and that Mentor® shall not be responsible for any loss, corruption, inaccessibility or damage of any Materials AND/OR OUTPUT.

4.3           Details and Updates.  For further details regarding the Hosting Services, related service levels, as well as the back-up processes and procedures, and for any updates and modifications thereto, please visit www.mentorsolutions.com/support.html or contact Mentor® at 1-800-994-6367.

4.4           Sole and Exclusive Remedy.  Your sole and exclusive remedy with respect to breach of this Section 4 by Mentor® shall be to terminate this Agreement in accordance with Section 12.2.

5.              Limited Modifications; Output.

5.1           Limited Modifications.  The Software allows you to modify certain formats, templates, language and overall look of the Output.  You may only make such modifications to the extent allowed by the Software.  It is your sole responsibility to make all necessary modifications to the extent allowed by the Software in order to comply with all applicable laws, rules and regulations.  If you determine, in your reasonable discretion, that you would require modifications in addition to those allowed by the Software in order to comply with applicable laws, rules and/or regulations, it is your sole responsibility to promptly contact Mentor® at www.mentorsolutions.com/support.html and request assistance therefrom with respect to such additional modifications.

5.2           Output.  Mentor® acknowledges and agrees that you are the owner of the Output.  You must include on each copy of the Output an appropriate copyright notice, showing that you are the owner of the Output and the content thereof.  You are expressly prohibited from referring in any way to Mentor®, its Affiliates, displaying the names of Mentor® and/or its Affiliates, or any of the Trademarks, logos, or other identifying symbols or marks on any Output.  Nothing in the Software, the Materials or the Output shall be construed as medical advice, and you must use your professional judgment before delivering any Output to your patient or to other Third Parties.

6.              HIPAA Forms and Privacy.  If you use the Software, the Materials and/or the Output in conjunction with the medical or health information of particular individuals, you acknowledge and agree that the Software, the Materials and the Output are not "HIPAA-ready" or "HIPAA-compliant" and shall not ensure compliance with HIPAA.  Without limiting the generality of anything set forth in this Agreement, you are solely responsible for using the Software, the Materials and the Output in a manner consistent with all applicable federal and state laws, rules and regulations, including, without limitation, HIPAA.  You may and must make such changes to the underlying data included in the Output as you, in your professional judgment, deem necessary or appropriate in your medical practice.

7.              Orders; Fees and Payment Terms.

7.1           Orders.  You may place one or more Orders for one or more Modules at any time, provided that the initial Order must include the Patient Management Module, which is a core module that is necessary for the operation and functionality of the other Modules.  All Orders shall be subject to the terms and conditions of this Agreement. 

7.2           Initial Set-Up and Recurring Fees. 

7.2.1      Unless specifically waived by Mentor®, at the time of your initial Order, you shall pay to Mentor® a one-time, nonrefundable initial set-up fee as set forth on the Site at the time of such Order or as otherwise requested or invoiced by Mentor®.

7.2.2      You shall also pay to Mentor® monthly recurring, nonrefundable fees for the Module(s) licensed by you under this Agreement in advance of use of such Module(s). Mentor® reserves the right to increase such fees upon notice to you in order to account for functionalities added to the Modules(s) licensed by you, changes to the competitive landscape or otherwise as determined in Mentor®’s sole reasonable discretion.  Each month Mentor® shall invoice you in advance for such Module(s) (including Hosting Services for up to one hundred and fifty Gigabytes (150 GB) of storage space per month), as well as for Hosting Services for storage space in excess of one hundred and fifty Gigabytes (150 GB) used during the previous month.  Current rates for such additional storage space shall be posted on the Site.  You may choose to provide Mentor® with credit card information (including, type of credit card, credit card number, name appearing on the credit card, credit card billing address) for purposes of allowing Mentor® to charge the nonrefundable fees for the Module(s) licensed by you under this Agreement as set forth on an applicable invoice and the Hosting Services for storage space in excess of one hundred and fifty Gigabytes (150 GB), if any, set forth thereon.  If you provide Mentor® with such credit card information, you hereby (a) authorize Mentor® to charge such credit card every month during the Term for the nonrefundable fees for the Module(s) licensed by you under this Agreement as set forth on the applicable invoice and the Hosting Services for storage space in excess of one hundred and fifty Gigabytes (150 GB), if any, set forth thereon, provided that such authorization may be suspended or terminated by you by providing Mentor® with written notice of suspension or termination of such authorization and (b) represent, warrant and covenant that you are the owner or authorized user of such credit card.  If you do not provide Mentor® with such credit card information or if you suspend or terminate your authorization for Mentor® to charge the credit card provided by you, you shall pay the fees set forth in each invoice within thirty (30) days after the date thereof.

7.3           Taxes and Other Charges.  In addition to all applicable license and administrative fees, you shall pay all sales, use, personal property and other taxes resulting from this Agreement or any activities under this Agreement, excluding taxes based on Mentor®’s net income, unless you furnish proof of exemption from payment of such taxes in a form reasonably acceptable to Mentor®.

8.              Mentor®’s Obligations; Claim Process.

8.1           Mentor®’s Obligations.  Mentor® shall use commercially reasonable efforts to cause that during the Term, each Module licensed by you through an Order performs in all material respects in accordance with the specifications set forth in the applicable Documentation and shall perform the Hosting Services in a professional, timely and workmanlike manner, consistent with generally-accepted standards for the performance of services of similar nature.  Mentor® makes no representations or warranties (a) that operation of the Software or performance of the Hosting Services shall be uninterrupted or error free, or (b) regarding the use, or the results of the use, of the Software, the Materials and/or the Output in terms of accuracy, reliability, currency, or otherwise.  In the event of a breach of the foregoing, your sole and exclusive remedy shall be to terminate this Agreement in accordance with Section 12.2.

8.2           Limitations.  Mentor® shall have no liability or obligations under this Section 8 if a breach of its obligations under this Agreement is attributable in whole or in part to any breach of Section 2.2. 

8.3           Disclaimer.  THE FOREGOING OBLIGATIONS SET FORTH IN SECTION 8.1 ARE IN LIEU OF ALL WARRANTIES, AND MENTOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY AND NON-INFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  MENTOR EXPRESSLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SOFTWARE SHALL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR SHALL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY LAWS, RULES OR REGULATIONS, INCLUDING, WITHOUT LIMITATION, HIPAA, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS.  YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SOFTWARE, THE MATERIALS AND/OR THE OUTPUT IS IN ACCORDANCE WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS.  IT IS YOUR RESPONSIBILITY TO KEEP ABREAST OF CHANGES IN LAWS, RULES, REGULATIONS AND PRACTICES THAT AFFECT YOU AND YOUR PRACTICE.  You hereby assume any and all liability in connection with the use, or the results of the use, of the Software, the Materials and/or the Output.

9.              Indemnification.  You shall indemnify, defend and hold harmless Mentor®, its Affiliates, and their respective directors, officers and employees from and against all losses, liabilities, demands, penalties, judgments, damages, costs and expenses (including reasonable attorneys’ fees and costs) resulting from any and all claims, demands, actions and other proceedings by any Third Party arising out of, relating to or resulting from (a) your breach of any covenant, representation or warranty contained in this Agreement, (b) exercise of your rights under this Agreement or your use of the Software or the Output, or (c) your negligent or willful acts or omissions.

10.           Confidential Information.  You shall treat and hold the Confidential Information in strict confidence and shall not make the Confidential Information available in any form to any Third Party for any purpose except to the extent necessary for the Purpose.  You shall not use the Confidential Information for any purpose other than the extent necessary to exercise your rights and perform your obligations under this Agreement and shall limit the disclosure of Confidential Information to those of your employees and physicians in your licensed practice who have a need to know such Confidential Information who are bound by restrictions on confidentiality and use not less restrictive than those set forth herein.  You hereby ensure that the Confidential Information shall not be used, disclosed or distributed by such employees and physicians in violation of this Agreement.  You shall also have the right to disclose Confidential Information to the extent required by applicable law, regulation or court order, provided that you shall provide Mentor® with written notice regarding such required disclosure and shall reasonably cooperate with Mentor® to limit the extent of such required disclosure.

11.           Limitation of Liability; Disclaimer.  To the FULLEST extent permitted by applicable law, IN NO EVENT SHALL MENTOR BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, DAMAGES FOR LOST PROFITS, REVENUES OR SAVINGS, LOST DATA OR LOST BUSINESS, OR ANY OTHER INDIRECT DAMAGES whether in an action in contract or tort, EVEN IF MENTOR HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES or if such damages are foreseeable.  Mentor® SHALL have no liability with respect to claims relating to or arising from the use of non-Mentor® products and services.  Mentor®’s entire liability to you for damages concerning performance or nonperformance by Mentor® or in any way related to the subject matter of this Agreement, regardless of whether the claim for such damages is based in contract, tort, strict liability, or otherwise, SHALL not exceed the amounts received FROM YOU by Mentor® under this Agreement DURING THE three (3) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY.  You acknowledge that the limitations of liability in this Agreement and the allocation of risk herein are an essential element of the bargain between you and Mentor®, without which Mentor® would not have entered into this Agreement.  Mentor®’s pricing reflects this allocation of risk and the limitation of liability specified herein.

12.           Term and Termination. 

12.1        The term of this Agreement shall commence when you select the “I ACCEPT” button below and expire when terminated in accordance with this Section 12 (the “Term”). 

12.2        You may terminate this Agreement for any cause or for no cause with respect to one or more Modules at any time by providing Mentor® with written notice thereof; provided, however that termination of this Agreement with respect to the Patient Management Module shall constitute termination of this Agreement in its entirety.  You must provide such written notice via email through www.mentorsolutions.com/support.html or in writing to:  Mentor® Solutions, Attn: Customer Service, 201 Mentor Drive, Santa Barbara, CA 93111, USA.

12.3        Mentor® may terminate this Agreement immediately upon written notice to you if you fail to perform any of your duties or obligations under this Agreement and fail to cure such default within thirty (30) days after receipt of written notice by Mentor® specifying the occurrence or existence of the default.  Notwithstanding the foregoing, this Agreement shall terminate automatically, if you are in breach of Sections 2.2 or 10. 

12.4        Mentor® may terminate this Agreement with respect to one or more Modules at any time by providing a ninety (90) days prior written notice to you. 

12.5        Upon termination of this Agreement or of any licenses granted under this Agreement, (a) you shall be responsible for paying all applicable fees, (b) the provisions of Sections 2.2, 2.4, 8.2, 8.3, 9, 10, 11, 12.5 and 13 shall survive, and (c) you shall promptly remove all affected Software and related data and information from all memory locations, return all copies of the affected Software to Mentor®.  Initial set-up fees (if any) and monthly recurring fees are nonrefundable.  Upon termination of this Agreement or of any licenses granted under this Agreement, (i) you shall pay to Mentor® all amounts outstanding at the time of termination, (ii) Mentor® shall comply with all applicable laws, rules and regulations related to the Output, and (iii) upon payment in full of all amounts owing by you to Mentor® at the time of such termination, Mentor® shall facilitate transfer to you of all Output within five (5) business days thereafter, in accordance with Mentor®’s standard procedures in effect at the time of such termination.

13.           General.

13.1        Relationship of the Parties.  This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between you and Mentor®.  Except as expressly set forth in this Agreement or agreed by Mentor® in advance in writing, you shall not have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of Mentor® or to bind Mentor® in any respect whatsoever.

13.2        No Third Party Beneficiaries.  This Agreement does not confer any rights or remedies to or for the benefit of any person other than you, and your successors and/or assigns permitted under this Agreement.  This Agreement does not give any third persons any right of subrogation or action against Mentor®.

13.3        Export.  You agree that you shall not export or re-export the Software outside of the Territory.  You must and shall comply with all domestic and international laws, rules and regulations that apply to the Software.

13.4        Force Majeure.  Except with respect to your obligation to make timely payments, neither you, nor Mentor® shall be responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosion, earthquakes, floods, wars, acts of terrorism, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or other causes beyond its reasonable control.

13.5        Severability and Waiver.  In the event that any provision of this Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or portion thereof) shall be enforced to the extent possible consistent with the stated intention of Mentor®, or, if incapable of such enforcement, shall be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement shall continue in full force and remain in effect according to its stated terms and conditions.  The waiver by Mentor® of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

13.6        Assignment.  You may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Mentor®.  Any purported assignment, transfer, delegation or other disposition by you shall be null and void.  Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of you, Mentor®, and your and Mentor®’s respective successors and assigns.  Mentor® shall have the right to freely assign this Agreement in whole or in part.

13.7        Injunctive Relief.  You acknowledge that the breach of any provision of Sections 2.2 or 10 may cause irreparable injury to Mentor®, and agree that Mentor® shall have the right to temporary, preliminary and permanent injunctive relief, without the necessity of proving actual damages or posting a bond, to prevent any such breach.  In the event Mentor® is required to file a lawsuit or court action against you to prevent such breach, you shall pay Mentor®’s reasonable attorney fees, expenses and court costs.

13.8        Governing Law.  This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties set forth in this Agreement.  The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.  Any action or proceeding in connection with or arising out of this Agreement shall be commenced and maintained only in Santa Barbara, California. 

13.9        Amendments.  This Agreement contains the terms and conditions regarding the subject matter hereof at the time of your Order.  This Agreement shall be amended and modified by Mentor® from time to time as published by Mentor® on the Site.

13.10     Complete Agreement.  This Agreement and any other terms and conditions incorporated by reference in this Agreement, contain the entire understanding between you and Mentor® with respect to the subject matter hereof, and supersede any and all related prior or contemporaneous understandings, agreements, representations, negotiations and discussions, whether oral or written.  Notwithstanding the foregoing, your use of the Site is subject to the Legal & Privacy Policy and Terms & Conditions. 

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