Software License Agreement

SOFTWARE LICENSE AGREEMENT


This SOFTWARE LICENSE AGREEMENT (as referred to herein, the "Agreement", and as referred to in other instruments or documents by and between the parties hereto and/or their respective subsidiaries or affiliates, the "Amended License Agreement"), by and between CareSouth Home Health Services, Inc. ("Licensor"), and Amedisys, Inc. ("Amedisys"), effective as of this 1st day of October, 2001 (the "Effective Date").


RECITALS


WHEREAS, Licensee currently owns and operates, and in the future may own and operate additional, Medicare-certified home health agencies (hereinafter, individually, an "Agency" and collectively, the "Agencies"); and


WHEREAS, Licensor owns rights in DOS-based and windows-based computer programs (the "Software") designed to, among other things, provide billing, payroll and collections services for the Agencies; and


WHEREAS, Licensee desires to obtain a non-exclusive, non-transferable license to use the Software in its Agencies, and limited rights (1) to sublicense the Software to third parties and (2) to transfer such license to, or use such license rights in connection with, a joint venture in which Licensee participates, all subject to the terms and conditions of this Agreement;


NOW, THEREFORE, in consideration of the mutual promises set forth herein, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee agree as follows:


AGREEMENT


I. DEFINITIONS


1.1 "Agencies" means each of the agencies identified in Schedule A hereto.


1.2 "Agreement" means this Agreement and the Schedules and Exhibits attached hereto.


1.3 "Documentation" means the user and system documentation set forth in Schedule B for use with the Software.


1.4 "Error" means a material failure of the Software to function in conformity with its specifications.


1.5 "Licensee" means Amedisys and each of its Agencies, whether now or hereafter owned and operated.


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1.6 "License Fees" means the fees Licensee shall pay as specified in Schedule C hereto.


1.7 "Location" means each of the Agency Locations specified in Schedule A hereto (as such Schedule shall be amended or modified from time to time to reflect the addition or deletion of Agency Locations).


1.8 "Software" means Licensor's Software and related programs and utilities specified in Schedule B and all versions, copies, upgrades, improvements, modifications, new versions and/or maintenance releases made by Licensor or Licensee.


1.9 "Specifications" means any current product specifications published by Licensor or Licensee with respect to the Software.


II. LICENSE


2.1 In accordance with the terms herein, Licensor grants to Licensee, and Licensee accepts from Licensor, a non-exclusive, non-transferable license to: (1) use Licensor's Software and Documentation solely for its internal operations at each Location specified in Schedule A; and (2) copy the Software for archival and backup purposes only, provided that all titles, trademarks, copyrights, proprietary and restricted rights and notices shall be reproduced in all such copies, and that all such copies shall be subject to the terms of this Agreement. A description of the Software and related Documentation is attached as Schedule B hereto.


2.2 Licensee shall not: (1) make available or distribute all or any part of the Software or Documentation to any third party by assignment, sub-license, or by any other means; or (2) copy, adapt, reverse engineer, decompile, disassemble, or modify, in whole or in part, any of the Software or Documentation; or (3) allow a third party access to the Software.


2.3 Notwithstanding the provisions of the foregoing Sections 2.1 and 2.2, Licensor acknowledges and agrees that, provided no event of default (as herein defined) has occurred hereunder, (a) Licensee may upgrade, improve or modify the Software or the Documentation, subject to Licensor's rights as provided in Section 4.1 hereof, (b) Licensee may sublicense the Software to a third party, provided, however, that Licensee shall not be permitted to conduct billing and collection functions, or to interfere with the conduct of the same by Licensor, with respect to such sublicense(s) for a period of twelve (12) months from the date of execution hereof and (c) Licensee may transfer its license to, or use its license rights in connection with, a joint venture in which Licensee participates, and shall be permitted to conduct billing and collection functions in connection with same, provided, however, that the Licensee must at all times be the legal and beneficial owner of not less than 30% of the equity ownership of such joint venture.


III. LICENSE FEES AND PAYMENT


3.1 Licensee shall pay the License Fees in accordance with the payment schedule set forth in Schedule C, in immediately available funds. Payment of the License Fees shall be made by Licensee to Licensor in full on each applicable payment date without any right of set-off or deduction.


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3.2 Licensee shall be responsible for any applicable sales or use taxes or any value added or similar taxes payable with respect to the licensing of the Software, or arising out of or in connection with this Agreement, other than taxes levied or imposed based upon Licensor's income. In the event that Licensor pays any such taxes on behalf of Licensee, Licensor shall invoice Licensee for such taxes and Licensee agrees to pay such taxes in accordance with this Agreement.


3.3 In addition to the remedies set forth in Section 6.5 hereof, the failure by Licensee to pay any amounts due under this Agreement in full in accordance with this Agreement shall make Licensee liable to pay Licensor interest at the rate of two percent (2%) per month on any License Fees due hereunder, or at the highest amount permitted by applicable law, such interest to accrue on a daily basis after as well as before any judgment relating to collection of the amount(s) due.


IV. PROPRIETARY RIGHTS AND CONFIDENTIALITY


4.1 Licensor represents and warrants that it owns the Software, Documentation and Specifications, and has the right to license the same to Licensee. Licensee acknowledges and agrees that all copyright, patent, trade secret, trademark, and all other intellectual property rights of whatever nature in the Software, Documentation, and Specifications are and shall remain the property of Licensor, and nothing in this Agreement should be construed as transferring any aspects of such rights to Licensee or any third party. Any upgrades, improvements or modifications to, or new versions of, the Software shall become a part of the Software, and, as such, are subject to the terms and conditions of this Agreement, whether such upgrades, improvements, modifications or new versions are made by Licensor or Licensee. Additionally, Licensor shall own all proprietary rights associated with such upgrades, improvements, modifications or new versions. Licensee hereby agrees that the foregoing provisions apply similarly to upgrades, improvements or modifications to, or new versions of, the Software made by Licensee prior to the execution of this Agreement.


4.2 "Confidential Information" shall mean the Software, Documentation, and Specifications. Licensee acknowledges the confidential and proprietary nature of the Confidential Information and agrees that it shall not reveal or disclose any Confidential Information for any purpose to any other person, firm, corporation or other entity, other than Licensee's employees with the need to know such Confidential Information to perform employment responsibilities consistent with Licensee's rights under this Agreement. Licensee shall safeguard and protect the Confidential Information from theft, piracy, or unauthorized access in a manner at least consistent with the protections Licensee uses to protect its most confidential information. Licensee shall inform its employees of its obligations under this Agreement, and shall take such steps as may be reasonable in the circumstances, or as may be reasonably requested by Licensor, to prevent any unauthorized disclosure, copying, or use of the Confidential Information. Licensee acknowledges and agrees that in the event of Licensee's breach of this provision, Licensor will suffer irreparable injuries not compensated by monetary damages and therefore shall not have an adequate remedy at law. Accordingly, Licensor shall be entitled to a preliminary and final injunction without the necessity of posting bond. This remedy is separate and apart from any other re ...