HOMACARE SOFTWARE IS LICENSED, NOT SOLD. USE OF THIS SOFTWARE IS SUBJECT TO LICENSE RESTRICTIONS. CAREFULLY READ THIS LICENSE AGREEMENT BEFORE USING THE SOFTWARE. USE OF SOFTWARE INDICATES COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. ANY ADDITIONAL OR DIFFERENT PURCHASE ORDER TERMS AND CONDITIONS SHALL NOT APPLY.
END-USER LICENSE AGREEMENT ("Agreement") for Software
Clicking “accept” and/or installing and/or using the Software (defined below) establishes a binding agreement between HomaCare, Inc. (“HomaCare”) and you as the person or entity licensing the Software (“Customer” or “You” or “Your”); provided that if you are accepting this Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the term "Customer" refers to such entity. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, IMMEDIATELY RETURN, OR IF RECEIVED ELECTRONICALLY, CERTIFY DESTRUCTION OF SOFTWARE AND ALL ACCOMPANYING ITEMS, AND YOU WILL RECEIVE A FULL REFUND OF FEES PAID, IF ANY.
1. SOFTWARE; OWNERSHIP; GRANT OF LICENSE.
1.1 The software, including any upgrades, updates, modifications, revisions, copies, and documentation made available by HomaCare (“Software”), is available for use by Customer at no charge. Statements regarding the Software in this Agreement apply to both any web-based component and to any mobile application. To the extent Customer requests and HomaCare accepts a request to download, install, and/or operate the Software from the applicable app store, each such request will constitute a contract between Customer and HomaCare, which shall be governed solely and exclusively by the terms and conditions of this Agreement, the applicable terms provided at the time of online registration to download the Software, and the product-specific terms identified in this Agreement, (collectively the “Order”). The Software may contain or be accompanied by certain third-party software components (“Third-Party Code”) identified in this Agreement (“Third-Party Notices”). The Third-Party Notices may include important licensing and liability disclaimers from the Third-Party Code licensors. Customer’s use of Third-Party Code in conjunction with the Software in accordance with this Agreement is permitted under all such Third-Party Notices. All software shall be deemed delivered when made available to Customer for download. HomaCare’s delivery of Software by electronic means is subject to Customer’s provision of a primary e-mail address.
1.2 Software, including all copies and documentation, is copyrighted, trade secret and confidential information of HomaCare or its licensors, who maintain exclusive title to all Software and retain all rights not expressly granted by this Agreement. You must hold HomaCare confidential information in strict confidence. HomaCare grants to Customer, subject to Customer’s compliance with the terms and conditions of this Agreement, a nontransferable, nonexclusive license to use Software solely: (a) in machine-readable, object or executable code form; (b) as specified in the Order; and (c) for Customer’s internal business purposes. Each Order for Software will identify the Software, subscription tier, license unit of measure, and any time period restriction, if applicable. Such limitations may be technically implemented through the use of authorization codes, license keys, or similar devices. Customer may choose to, but is not required to, provide suggestions, data, or other information to HomaCare regarding possible improvements in the operation, functionality or use of Software, whether in the course of receiving services, evaluating Software or otherwise, and any inventions, product improvements, modifications or developments made by HomaCare, at its sole discretion, will be the exclusive property of HomaCare.
2.1 Customer shall not loan, rent, lease, distribute, or otherwise transfer Software without HomaCare’s prior written consent, except as part of a permanent transfer of the Software as permitted by this Agreement. Customer shall not: (a) use the Software or allow its use for developing, enhancing or marketing any product that is competitive with the Software; or (b) disclose to any third party the results of or information pertaining to any testing of the Products against a third party’s products for the purpose of competitive comparison. Customer shall not reverse-assemble, reverse-compile, reverse-engineer or in any way derive source code from Software.
2.2 Customer may allow third party consultants or contractors (“Authorized Third Parties”) to access and use the Software on Customer’s behalf as long as: (a) the use is solely for Customer’s internal business operations; (b) each Authorized Third Party is underwritten confidentiality obligations with Customer protecting HomaCare’s intellectual property and Confidential Information with terms no less stringent than this Agreement; (c) Customer ensures that the Authorized Third Party’s use of the Software complies with the terms of this Agreement; and (d) on completion of the Authorized Third Party’s services requiring use of the Software, Customer ensures that the Software are immediately and completely uninstalled from Authorized Third Party’s equipment and/or premises, as applicable.
2.3 Except as provided herein, Customer shall not sublicense, assign or otherwise transfer the Software without HomaCare’s prior written consent and payment of HomaCare’s then-current applicable transfer charges. Any attempted transfer without HomaCare’s prior written consent shall be a material breach of this Agreement and may, at HomaCare’s option, result in the immediate termination of the licenses and this Agreement. On HomaCare's written request, Customer will furnish to HomaCare: (a) a certification signed by an officer indicating whether the Software is being used in accordance with this Agreement; and (b) a copy of any usage reports generated from the Software, if applicable. HomaCare may engage an independent auditor to review Customer’s Software usage and related records during Customer’s normal business hours to confirm compliance with this Agreement.
2.4 All Software is commercial off-the-shelf computer software. Pursuant to US FAR 48 CFR 12.212 and DFAR 48 CFR 227.7202, use, duplication and disclosure of the Software by or for the U.S. Government or a U.S. Government subcontractor is subject solely to the terms of this Agreement, except for terms that are contrary to applicable mandatory federal laws. Unless otherwise agreed to in writing by authorized personnel of HomaCare and Customer, no term or condition required in any U.S. Government contract or related subcontract shall be part of an Order or binding upon HomaCare.
3. CUSTOMER RESPONSIBILITIES; DISCLAIMER OF WARRANTIES; SUPPORT. Customer is solely responsible for selecting the Software to achieve its intended results, and for the installation of, use of, and results obtained from the Software. Customer is solely responsible for compliance with all laws, rules and regulations applicable to Customer’s use of the Software. Customer is solely responsible for any taxes, customs duties or similar charges arising out of Customer’s receipt or use of the Software. The Software is made available by HomaCare AS-IS, without warranty of any kind. HOMACARE AND ITS LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT. FURTHERMORE, HOMACARE AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS.
3.1 Support: HomaCare support services are available for no-charge Software by email request to email@example.com. All support requests will be answered within 2 business days of date of email request. HomaCare may, but is not required to, make patches, updates and upgrades to the Software available from time to time. Installation and use of such releases are governed by the terms of this Agreement.
4. DISCLAIMER OF LIABILITY. The Software is provided to Customer at no-charge. HOMACARE AND ITS LICENSORS SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL HOMACARE OR ITS LICENSORS BE LIABLE FOR DIRECT, PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST DATA, LOST PROFITS OR SAVINGS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF HOMACARE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Customer acknowledges that the Software is provided at no-charge, and on an “AS-IS” and “AS AVAILABLE” basis, reflecting the allocation of risk set forth in this Agreement and that HomaCare would not enter into this Agreement or offer the Software at no charge without these limitations on its liability. Your use or reliance upon the application(s) and any third-party content and services accessed thereby is at your sole risk and discretion.
5. TERM AND TERMINATION. This Agreement remains effective until terminated. This Agreement will immediately terminate upon notice if Customer exceeds the scope of license granted or otherwise fails to comply with Sections 1 or 2. For any other material breach under this Agreement, HomaCare may terminate this Agreement upon 30 days written notice if Customer is in material breach and fails to cure such breach within the 30-day notice period. If a Software license was provided for limited term use, such license will automatically terminate at the end of the authorized term. Customer may terminate this Agreement at any time by providing written notice to HomaCare. On termination of this Agreement or any Software license under this Agreement, Customer shall ensure that all use of the affected Software ceases and shall certify the destruction of all copies of the Software used by Customer to HomaCare’s reasonable satisfaction. The following sections will survive any termination of this Agreement: 1-4 and 6-7.
6. EXPORT. Customer agrees to comply with all international and national laws that apply to the Software, including, but not limited to, the U.S. Export Administration Regulations, economic sanctions regulations administered by the Office of Foreign Assets Control, as well as similar restrictions issued by U.S. and other governments, which prohibit the provision of Software to specified destinations, end-users and end uses. Customer specifically represents and warrants that it will not export, re-export, sell, supply or transfer the Software to any country or person to which the United States has embargoed or restricted the provision of the Software, including, but not limited to, Cuba, Iran, North Korea, Sudan (North) or Syria, nationals of those countries, or to any other embargoed or restricted destination or person.
7. GENERAL TERMS. This Agreement shall be governed by and construed under the laws of the State of Georgia, USA, excluding choice of laws rules. Any action or proceeding arising from or relating to this Agreement, must be brought in a federal court in the District of Georgia or in state court in Fulton County, Georgia, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding; however, this provision shall not restrict HomaCare’s right to bring an action against Customer or its subsidiary in the jurisdiction where Customer’s or its subsidiary’s place of business is located. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. This Agreement may only be modified in writing by authorized representatives of the parties. All notices required or authorized under this Agreement must be in writing and shall be sent, as applicable, to Customer’s legal department. Waiver of terms or excuse of breach must be in writing and shall not constitute subsequent consent, waiver or excuse.
8. HomaCare CONTACT INFORMATION. All inquiries, issues, or other reasons to contact HomaCare may be addressed to:
2300 Lakeview Parkway, Suite 700
Alpharetta, GA 30009
Phone: (678) 916-3890