End User Software License Agreement
January 23, 2017
PLEASE READ THIS END USER SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, PROMPTLY RETURN AND DO NOT USE THE SOFTWARE.
1. Grant of License. Subject to the terms and conditions of this Agreement and the payment of applicable fees, SonoSim, Inc., a California corporation (“SonoSim”) and its suppliers grant to you (“End User”) a single, non-exclusive, non-transferable license to use the SonoSim® Ultrasound Training Solution software (the “Software”).
2. Graduate Medical Education (GME) Package Special Provision. Notwithstanding anything to the contrary herein, (a) the Graduate Medical Education (“GME”) standard license is for a term of three (3) or more years with one (1) probe per license which is transferrable to one new student per license in the second and third year of the license, and (b) the GME Flex Package license is for a term of three (3) or more years with one (1) probe per license which is transferrable to four (4) new students per license per year for the duration of the license.
3. License Restrictions. Except as otherwise expressly provided for under this Agreement, End User shall have no right to, and shall not: (i) make corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same; (ii) make or distribute copies of the Software or electronically transfer the Software from one computer to another or over a network; (iii) decompile, translate, reverse engineer, disassemble or otherwise reduce the Software to human-readable form; (iv) remove the Software from the equipment in which it is embedded; (v) use the Software in any manner to provide service bureau, web hosting, or other computer services to third parties; (vi) rent, lease or sublicense the Software; (vii) use the Software to develop any product having the same primary function as the Software, or (viii) publish or otherwise make public the results of any benchmark tests run on the Software.
4. Upgrades. For purposes of this Agreement, “Software” shall also include all upgrades, updates, bug fixes or modified versions (collectively, “Upgrades”) of the Software licensed or provided to End User by SonoSim or an authorized distributor of the Software. Notwithstanding the foregoing, SonoSim shall have no obligation to develop or provide any Upgrades under this Agreement. If Upgrades are developed or provided, End User acknowledges and agrees that: (i) End User has no license or right to use any such Upgrades unless End User, at the time of acquiring such Upgrade, already holds a valid license to the original Software, (ii) End User has no license or right to use such Upgrades unless End User has paid in full all license, sublicense or other fees due with respect to the Software, and (iii) use of the Upgrades is limited to SonoSim equipment for which End User is the original End User purchaser or lessee. End User acknowledges and agrees that any obligation SonoSim may have to support and/or offer support for the earlier version of the Software may be ended upon availability of the Upgrade.
5. Proprietary Rights. The Software, including, but not be limited to: (i) all copies of the Software, in whole and in part; and (ii) all Intellectual Property Rights in the Software, is and will remain the sole and exclusive property of SonoSim. For purposes herein, “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights (including, but not limited to, rights in audiovisual works and moral rights), trade secret rights, moral rights, rights of priority and any other intellectual property right recognized in any country or jurisdiction in the world. “Moral rights” means any right to claim authorship to or to object to any distortion, mutilation, or other modification or other derogatory action in relation to a work, whether or not such would be prejudicial to the author’s reputation, and any similar right, existing under common or statutory law or any country in the world or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”
6. Notices of Proprietary Rights. End User shall maintain and reproduce all trademark, copyright, patent, and notices of other proprietary rights on all copies, in any form, of the Software in the same form and manner that such trademark, copyright, patent, and notices of other rights are included on the Software. End User shall not make any copies or duplicates of any Software without the prior written permission of SonoSim.
7. Confidential Information. End User agrees that End User will not disclose or, except as expressly permitted in this Agreement, use any Software or other technical or otherwise confidential information disclosed to End User by SonoSim (collectively, “Confidential Information”), and that End User will take all reasonable measures to maintain the confidentiality of all Confidential Information in End User’s possession or control, which will in no event be less than the measures End User uses to maintain the confidentiality of End User’s own information of equal importance. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement; (ii) End User receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (iii) End User develops independently without any access to the Confidential Information, which End User can prove with written evidence. End User acknowledges that the Software is a trade secret of SonoSim, the disclosure of which would cause substantial harm to SonoSim that could not be remedied by the payment of damages alone. Accordingly SonoSim will be entitled to preliminary and permanent injunctive relief and other equitable relief for any breach of this Section.
8. Medical Information. Information contained within the Software is meant to inform and provide End Users with the latest literature-based ultrasound training approaches and materials. It is the responsibility of individual healthcare practitioners to appropriately apply and integrate the knowledge gained from the Software into day-to-day medical practice. End Users are advised that new medical research may affect prevailing knowledge and recommendations. SonoSim makes no representations or warranties as to the effectiveness or safety of the described ultrasound protocols, procedures, or ultrasound use cases described in the Software for any individual person.
9. Medical Information Disclaimer. SonoSim and the authors, editors, producers, experts, software programmers and others who participated in creating the Software are not responsible for errors or omissions of information, or for any consequences of the application of the information in the Software. SonoSim shall have no liability for injury or death of any person, or for direct, indirect, incidental, consequential, special or punitive damages arising out of any cause of action relating to the use of the information in the Software.
Many actions and procedures described in the training program require additional training that is beyond the scope of the Software. Users are advised that application of all information contained in this Software remains the sole responsibility of the individual. SonoSim urges practitioners to conform to institutional credentialing, certification, and scanning protocols. SonoSim urges all individuals to obtain training appropriate to their professional needs and requirements.
10. Limited Warranty. SonoSim warrants that the Software will substantially perform its intended functionality for a period of one (1) year from the receipt of the Software. This limited warranty extends only to End User as the original licensee. All warranty claims must be made by contacting SonoSim between the hours of 9:00 AM and 5:00 PM Pacific time during applicable warranty period. Provided that (a) End User has notified SonoSim of such substantial non-conformance during the applicable warranty period, and (b) SonoSim has confirmed such Software to be substantially non-conforming, as End User’s sole and exclusive remedy and SonoSim and its suppliers’ entire liability under this limited warranty, SonoSim will, at its option, repair or replace the Software, or refund the price of the Software. Except as provided herein, the Software is provided “AS IS,” “WITH ALL FAULTS,” and without warranty of any kind. SonoSim does not warrant that the Software is error free, that any errors in the Software will be corrected, or that End User will be able to operate the Software without problems or interruptions. SonoSim reserves the right to refuse any repairs or replacements requested outside of the limited warranty period and further reserves the right to charge additional fees for such repairs or replacements, if accepted by SonoSim in its sole discretion outside of the limited warranty period. This warranty does not apply if the Software or the SonoSim Delivery Mechanism in which the Software is embedded or through which the Software is provided: (i) is licensed for beta, evaluation, testing or demonstration purposes for which SonoSim does not receive a license fee, (ii) has been altered in any way, except by SonoSim, (iii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by SonoSim, (iv) has been subjected to abuse, abnormal physical or electrical stress, misuse, negligence, or accident, or (v) is used in ultra hazardous activities.
11. Virus Warning. SonoSim may request the End User to temporarily disable anti-virus software to enable SonoSim to complete the installation of the Software. SonoSim shall have no liability or responsibility if the End User’s computer gets a computer virus, computer worm, computer time bomb or similar component during the installation period. SonoSim recommends that the End User back up all data prior to installation of the Software, and enable the anti-virus software immediately after installation of the Software.
12. Repetitive Motion Warning. As with any repetitive motion task, repeated use of the same motion when using the SonoSim® Ultrasound Training Solution may cause tissues to become fatigued, resulting in pain, swelling, tingling, numbness or tenderness. SonoSim recommends that (a) you do not continuously use the product over extended periods of time, (b) you should take a 10 to 15 minute break from scanning every hour, (c) if you experience any of the symptoms described above, in association with use of the SonoSim® Ultrasound Training Solution, cease using the Software and consult a physician.
13. SonoSim LiveScan® Warning. If your purchase includes SonoSim LiveScan®, it may NOT be used on anyone who has a pacemaker, implantable cardioverter defibrillator or other electronic medical device
14. Disclaimer. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY DISCLAIMED AND EXCLUDED TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SONOSIM, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES, SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
15. Consequential Damages Waiver. IN NO EVENT WILL SONOSIM OR ITS SUPPLIERS BE LIABLE FOR INJURY OR DEATH OR ANY PERSON, OR FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE INFORMATION CONTAINED IN THE SOFTWARE EVEN IF SONOSIM OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Limitation of Liability. IN NO EVENT SHALL SONOSIM’S OR ITS SUPPLIERS’ TOTAL LIABILITY TO END USER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ON A CUMULATIVE BASIS EXCEED THE PAYMENT ACTUALLY MADE TO SONOSIM FROM END USER UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
17. Indemnification. End User agrees to indemnify, defend, and hold SonoSim, and its officers, directors, shareholders, employees and agents, and their respective successors and assigns, harmless from and against any and all claims, actions, causes of action, damages, costs and expenses, including without limitation attorneys’ fees and court costs, arising from or related to End User’s diagnosis or treatment of patients.
18. Term and Termination. This Agreement is effective until terminated by SonoSim. End User’s license rights under this Agreement will terminate immediately without notice from SonoSim if End User fails to comply with any provision of this Agreement. Upon termination, End User must destroy all copies of Software in its possession or control.
19. Compliance with Law. Each party agrees to comply with all applicable laws, rules and regulations in connection with its activities under this Agreement. Without limiting the foregoing, End User acknowledges and agrees that the Software, including technical data, is subject to United States export control laws, including the United States Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. End User agrees to comply strictly with all such regulations and acknowledges that End User has the responsibility to obtain licenses to export, re-export, or import the Software.
20. Privacy. Use of the Software permits SonoSim to gather non-personal, system-related information relating to the End User’s computer, such as computer specifications and installed Software. Such system-related information does not identify the End User or any personal information about the End User. SonoSim uses this system-related information solely to provide customer service to the End User, and will not disclose or use such system-related information for any other purpose.
21. General. This Agreement will bind and inure to the benefit of each party’s successors and assigns, provided that End User may not assign or transfer this Agreement, in whole or in part, without SonoSim’s written consent. This Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal suit, action or proceedings arising out of or relating to this Agreement shall be commenced solely in a federal or state court having jurisdiction over disputes arising in Los Angeles County, California, and each party hereto irrevocably submits to the exclusive jurisdiction and exclusive venue of any such court in any such suit, action or proceeding. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and the void or unenforceable provision shall be amended to achieve as nearly as possible the economic effect as the original provision. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior or contemporaneous agreements, communications, and understandings (whether written and oral) regarding such subject matter.