Terms of Service
Last Updated Date: October 5, 2023
PLEASE READ THESE TERMS OF SERVICE ("TERMS") CAREFULLY BEFORE USING THE SONOSIM SYSTEM, INCLUDING THE SERVICES, DOWNLOADABLE SOFTWARE, AND EQUIPMENT. BY USING THE SONOSIM SYSTEM, YOU (“CUSTOMER”) ARE CONSENTING TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, PROMPTLY RETURN THE EQUIPMENT, DELETE THE DOWNLOADABLE SOFTWARE, AND DO NOT USE THE SERVICES.
(a) "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by SonoSim in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) "Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the SonoSim System under the rights granted to Customer pursuant to these Terms and (ii) for whom access to the SonoSim System has been purchased hereunder.
(c) "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the SonoSim System.
(d) "Downloadable Software" means software that SonoSim makes available for download or installation via media provided by SonoSim, that is specifically for purposes of facilitating access to, operation of, or use with the Services, and any updates SonoSim may make available to such software from time-to-time.
(e) “Equipment” means physical tools that SonoSim makes available for purchase by Customer to facilitate or augment use of the Services.
(f) "SonoSim IP" means the SonoSim System and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, SonoSim IP includes Aggregated Statistics and any information, data, or other content derived from SonoSim's monitoring of Customer's access to or use of the Services or Downloadable Software, but does not include Customer Data.
(g) “Investment Contract” means the form or document under which SonoSim agrees to provide and Customer agrees to receive the SonoSim System, including a description of the specific scope of the Services and Equipment to be provided to Customer, as well as applicable fees, subscription period, invoicing and renewal process, authorized users, and any other limitations.
(h) "SonoSim System" means the Services, Equipment, and the Downloadable Software.
(i) "Services" means the software-as-a-service offering of SonoSim.
2. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer's payment of Fees (as defined below) and compliance with all other terms and conditions of these Terms, SonoSim hereby grants to Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein and an applicable Investment Contract. Such use is limited to Customer's internal use. SonoSim shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The total number of Authorized Users will not exceed the number set forth in the applicable Investment Contract except as otherwise expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
(b) Downloadable Software and Equipment License. Subject to the terms and conditions contained in these Terms, SonoSim hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license during the Term to: (i) use Downloadable Software, in object code format, solely for Customer's internal use in connection with its use of the Services and the Equipment as specified in an applicable Investment Contract, (ii) use the Equipment provided to Customers in conjunction with the Service. Customer's use of Downloadable Software must be in compliance with the additional terms and conditions set forth in Exhibit A (the "Downloadable Software and Equipment License Terms"). In the event of any inconsistency between the Downloadable Software and Equipment License Terms and these Terms, the Downloadable Software and Equipment License Terms shall apply only with respect to the Downloadable Software and Equipment that the Downloadable Software and Equipment License Terms reference and not the Services provided under these Terms.
(c) Use Restrictions. Customer shall not use the SonoSim IP for any purposes beyond the scope granted in these Terms. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the SonoSim IP, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the SonoSim IP; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the SonoSim IP, in whole or in part; (iv) remove any proprietary notices from the SonoSim IP; or (v) use the SonoSim IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. SonoSim reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the SonoSim IP.
(e) Suspension. Notwithstanding anything to the contrary in these Terms, SonoSim may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) SonoSim reasonably determines that (A) there is a threat or attack on any of the SonoSim IP; (B) Customer's or any Authorized User's use of the SonoSim IP disrupts or poses a security risk to the SonoSim IP or to any other customer or vendor of SonoSim; (C) Customer, or any Authorized User, is using the SonoSim IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) SonoSim's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of SonoSim has suspended or terminated SonoSim's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). SonoSim shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. SonoSim shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. SonoSim will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, SonoSim may monitor Customer's use of the SonoSim System and collect and compile Aggregated Statistics. As between SonoSim and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by SonoSim. Customer acknowledges that SonoSim may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that SonoSim may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
3. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the SonoSim IP resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any 4879-6465-8445, v. 6.1 4 act or omission by an Authorized User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of these Terms’ provisions as applicable to such Authorized User's use of the SonoSim IP and shall cause Authorized Users to comply with such provisions.
4. Support. The access right granted hereunder entitles Customer to the support services described from time to time on SonoSim's website located at https://sonosim.com/support for the period specified therein following the Effective Date under these Terms and thereafter, solely if Customer purchases additional support services.
5. Fees and Payment.
(a) Fees. Customer shall pay SonoSim the fees ("Fees") as set forth in the applicable Investment Contract. Customer shall make all payments hereunder in U.S. dollars on or before the due date set forth in the Investment Contract. If Customer fails to make any payment when due, without limiting SonoSim's other rights and remedies: (i) SonoSim may charge interest on the past due amount at the rate of 1.5% per month/ calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse SonoSim for all costs incurred by SonoSim in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, SonoSim may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes. Customer is responsible for any applicable taxes, including, without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Customer’s subscription and assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in the Investment Contract, all fees, rates, and estimates exclude sales taxes. If SonoSim believes any such tax applies to Customer’s subscription and SonoSim has a duty to collect and remit such tax, the same may be set forth on an invoice to Customer unless Customer provides SonoSim with a valid tax exemption certificate, direct pay permit, or multi-state use certificate, and shall be paid by Customer immediately or as provided in such invoice. Customer shall indemnify, defend, and hold harmless SonoSim and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns against any and all actual or threatened claims, actions, or proceedings of any taxing authority arising from or related to the failure to pay taxes owed by Customer, except to the extent that any such claims, action, or proceeding is directly caused by a failure of SonoSim to remit amounts collected for such purpose from Customer. SonoSim is solely responsible for taxes based upon SonoSim’s net income, assets, payroll, property, and employees.
(c) Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of these 4879-6465-8445, v. 6.1 5 Terms with respect to matters necessary for accurately determining amounts due hereunder.
6. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under these Terms, including to make required court filings. On the expiration or termination of these Terms, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership; Feedback.
(a) SonoSim IP. Customer acknowledges and agrees that this Agreement does not grant Customer any right, title, interest in or to the Intellectual Property Rights in the SonoSim IP, “look and feel,” any or all related or underlying technology and any and all modifications or derivative works of the foregoing created by 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 4879-6465-8445, v. 6.1 6 treaty, regardless of whether or not such right is denominated or generally referred to as a "moral right.”
(b) Customer Data. SonoSim acknowledges that, as between SonoSim and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to SonoSim a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for SonoSim to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to SonoSim by mail, email, telephone, or otherwise, suggesting or recommending changes to the SonoSim IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), SonoSim is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to SonoSim on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and SonoSim is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although SonoSim is not required to use any Feedback.
(a) SonoSim does not make any representations or guarantees regarding uptime or availability of the Services. The remedies set forth in these Terms are Customer's sole remedies and SonoSim's sole liability under the limited warranty set forth in this Section 8.
(b) EXCEPT FOR THE LIMITED WARRANTIES AS SET FORTH IN EXHIBIT A FOR THE DOWNLOADABLE SOFTWARE AND EQUIPMENT, THE SONOSIM IP IS PROVIDED "AS IS" AND SONOSIM HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SONOSIM SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, SONOSIM MAKES NO WARRANTY OF ANY KIND THAT THE SONOSIM IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(C) THE SONOSIM SYSTEM AND THE INFORMATION PROVIDED TO USERS OF THE SYSTEM ARE MEANT TO INFORM AND PROVIDE CUSTOMER AND ANY AUTHORIZED USERS WITH HIGH-QUALITY, LITERATURE-BASED ULTRASOUND TRAINING APPROACHES AND MATERIALS. CUSTOMER ACKNOWLEDGES AND AGREES THAT PROVISION OF THE SONOSIM SYSTEM DOES NOT CONSTITUTE THE RENDERING OF MEDICAL OR CLINICAL PRACTICE BY SONOSIM. HEALTHCARE PRACTITIONERS ARE SOLELY RESPONSIBLE TO APPROPRIATELY APPLY AND INTEGRATE THE KNOWLEDGE GAINED FROM USE OF THE SONOSIM SYSTEM INTO DAY-TODAY MEDICAL PRACTICE. CUSTOMER IS ADVISED THAT NEW MEDICAL RESEARCH MAY AFFECT PREVAILING KNOWLEDGE AND RECOMMENDATIONS AND MAY NOT YET BE INCORPORATED INTO THE SONOSIM SYSTEM. SONOSIM HEREBY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES AS TO THE EFFECTIVENESS, VALIDITY, OR SAFETY OF THE DESCRIBED ULTRASOUND PROTOCOLS, PROCEDURES, OR ULTRASOUND USE CASES DESCRIBED IN THE SONOSIM SYSTEM FOR ANY INDIVIDUAL PERSON. SONOSIM AND ITS RELATED ENTITIES, OFFICERS, EMPLOYEES, CONTRACTORS, AFFILIATES, OR AGENTS ARE NOT RESPONSIBLE FOR ERRORS OR OMISSIONS OF INFORMATION, OR FOR ANY USE OF THE INFORMATION PROVIDED BY THE SONOSIM SYSTEM. SONOSIM HEREBY DISCLAIMS ALL 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 PROVIDED BY THE SONOSIM SYSTEM. MANY ACTIONS AND PROCEDURES DESCRIBED IN THE SONOSIM SYSTEM REQUIRE ADDITIONAL TRAINING THAT IS BEYOND THE SCOPE OF THE SONOSIM SYSTEM. USERS ARE ADVISED THAT APPLICATION OF ALL INFORMATION CONTAINED IN THE SONOSIM SYSTEM REMAINS THE SOLE RESPONSIBILITY OF THE INDIVIDUAL USER. SONOSIM URGES PRACTITIONERS TO CONFORM TO INSTITUTIONAL CREDENTIALING, CERTIFICATION, AND SCANNING PROTOCOLS, AND FOR ALL INDIVIDUALS TO OBTAIN TRAINING APPROPRIATE TO THEIR PROFESSIONAL NEEDS AND RELEVANT STATUTORY AND REGULATORY REQUIREMENTS.
(a) SonoSim Indemnification.
(i) SonoSim shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including [reasonable] attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with these Terms, infringes or misappropriates such third party's U.S. intellectual property rights, provided that Customer promptly notifies SonoSim in writing of the claim, cooperates with SonoSim, and allows SonoSim sole authority to control the defense and settlement of such claim.
(ii) If a Third-Party Claim is made or appears possible, Customer agrees to permit SonoSim, at SonoSim's sole discretion, to (A) modify or replace the SonoSim System, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If SonoSim determines that neither alternative is reasonably available, SonoSim may terminate these Terms, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the SonoSim System in combination with data, software, hardware, equipment, or technology not provided by SonoSim or authorized by SonoSim in writing; (B) modifications to the SonoSim System not made by SonoSim; or (C) Customer Data.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at SonoSim's option, defend SonoSim from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with these Terms, infringes or misappropriates such third party's U.S. intellectual property rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; or (ii) use of the SonoSim IP in a manner not authorized by these Terms; (iii) use of the SonoSim IP in combination with data, software, hardware, equipment, or technology not provided by SonoSim or authorized by SonoSim in writing; or (iv) modifications to the SonoSim IP not made by SonoSim, provided that Customer may not settle any Third-Party Claim against SonoSim unless SonoSim consents to such settlement, and further provided that SonoSim will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND SONOSIM'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SONOSIM IP INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL SONOSIM'S LIABILITY UNDER THIS SECTION 9 EXCEED $500,000.
10. Limitations of Liability. IN NO EVENT WILL SONOSIM BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SONOSIM WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR 4879-6465-8445, v. 6.1 9 DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL SONOSIM'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE LESSER OF TWO TIMES THE TOTAL AMOUNTS PAID TO SONOSIM UNDER THESE TERMS IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR $250,000.
11. Term and Termination.
(a) Term. These Terms shall be effective upon any Order by Customer and, unless terminated earlier pursuant to these Terms' express provisions, will continue in effect until the end of Customer’s subscription to the SonoSim Services as specified in an Investment Contract.
(b) Termination. In addition to any other express termination right set forth in these Terms:
(i) SonoSim may terminate these Terms, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 30 days after SonoSim's delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6.
(ii) Either Party may terminate these Terms, effective on written notice to the other Party, if the other Party materially breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
(iii) Either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms, Customer shall immediately discontinue use of the SonoSim IP and, without limiting Customer's obligations under Section 6, Customer shall cease using and delete, destroy, or return all copies of the SonoSim IP and certify in writing to the SonoSim that the SonoSim IP has been deleted or destroyed. No expiration or termination will affect 4879-6465-8445, v. 6.1 10 Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(d) Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(b), 9, 10, and 12 survive any termination or expiration of these Terms. No other provisions of these Terms survive the expiration or earlier termination of these Terms.
(a) Entire Agreement. These Terms, together with the Investment Contract and any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. Except as otherwise set forth in Section 2(b), in the event of any inconsistency between the statements made in the body of these Terms, Investment Contract, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms, excluding its Exhibits; (ii) second, the Investment Contract; (iii) third, the Exhibits to these Terms as of the Effective Date; and (iv) fourth, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses listed in the Investment Contract (or to such other address that may be designated by each respective Party from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Amendment and Modification; Waiver. No amendment to or modification of these Terms is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(d) Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or 4879-6465-8445, v. 6.1 11 other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(e) Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the County of Los Angeles, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(f) Arbitration. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Los Angeles County, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of SonoSim. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval) that prohibit or restrict the export or re-export of the SonoSim IP or any Customer Data outside the U.S.
(i) US Government Rights. Each of the Downloadable Software and the software components that constitute the Equipment or Services is a "commercial product" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Downloadable Software as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of 4879-6465-8445, v. 6.1 12 Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
DOWNLOADABLE SOFTWARE AND EQUIPMENT TERMS AND CONDITIONS
1. Grant of License. Subject to the terms and conditions of these Terms and the payment of applicable fees, SonoSim, Inc., SonoSim and its suppliers grant to Customer a non-exclusive, nontransferable license consistent with the terms of an applicable Investment Contract to use the Downloadable Software.
2. License Restrictions. Except as otherwise expressly provided for under these Terms, Customer shall have no right to, and shall not: (i) make corrections to or otherwise modify or adapt the Downloadable Software or create derivative works based upon the Downloadable Software, or permit third parties to do the same; (ii) make or distribute copies of the Downloadable Software or electronically transfer the Downloadable Software from one computer to another or over a network other than as required for use of the Downloadable Software under an applicable Investment Contract; (iii) decompile, translate, reverse engineer, disassemble or otherwise reduce the Downloadable Software to human-readable form; (v) use the Downloadable Software in any manner to provide service bureau, web hosting, or other computer services to third parties; (vi) rent, lease or sublicense the Downloadable Software; (vii) use the Downloadable Software to develop any product having the same primary function as the Downloadable Software, or (viii) publish or otherwise make public the results of any benchmark tests run on the Downloadable Software.
3. Upgrades. For purposes of these Terms, “Downloadable Software” shall also include all upgrades, updates, bug fixes or modified versions (collectively, “Upgrades”) of the Downloadable Software licensed or provided to Customer by SonoSim or an authorized distributor of the Downloadable Software. Notwithstanding the foregoing, SonoSim shall have no obligation to develop or provide any Upgrades under these Terms. If Upgrades are developed or provided, Customer acknowledges and agrees that: (i) Customer has no license or right to use any such Upgrades unless Customer, at the time of acquiring such Upgrade, already holds a valid license to the original Software, (ii) Customer has no license or right to use such Upgrades unless Customer has paid in full all license, sublicense or other fees due with respect to the Downloadable Software, and (iii) use of the Upgrades is limited to SonoSim equipment for which Customer is the original Customer purchaser. Customer acknowledges and agrees that any obligation SonoSim may have to support and/or offer support for the earlier version of the Downloadable Software may be ended upon availability of the Upgrade.
4. Proprietary Rights. The Downloadable Software, is and will remain the sole and exclusive property of SonoSim. Customer acknowledges and agrees that this Agreement does not grant Customer any right, title, interest in or to the Intellectual Property Rights in the Downloadable Software. 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 4879-6465-8445, v. 6.1 14 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."
5. Notices of Proprietary Rights. Customer shall maintain and reproduce all trademark, copyright, patent, and notices of other proprietary rights on all copies, in any form, of the Downloadable Software in the same form and manner that such trademark, copyright, patent, and notices of other rights are included on the Downloadable Software.
6. Limited Warranty and Disclaimer. SonoSim warrants that all Equipment shall for one (1) year from purchase by Customer function consistent with the requirements of its use with the SonoSim System. These limited warranties extend only to Customer. All warranty claims must be made by contacting SonoSim Monday through Friday, between the hours of 6:00 AM and 4:00 PM Pacific time, or via email during the applicable warranty period. Provided that (a) Customer has notified SonoSim of such substantial non-conformance during the applicable warranty period, and (b) SonoSim has confirmed such Downloadable Software or Equipment to be substantially nonconforming, as Customer'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 Downloadable Software or Equipment, or refund the price of the Downloadable Software or Equipment. 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 Downloadable Software is error free, that any errors in the Downloadable Software will be corrected, or that Customer will be able to operate the Downloadable 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. The warranty for the Downloadable Software does not apply if the Downloadable Software: (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. The warranty for the Equipment does not apply if the Equipment has been: (i) altered in any way, except by SonoSim, (ii) has not been used, repaired, or maintained in accordance with instructions supplied by SonoSim, (iii) has been subjected to abuse, abnormal physical or electrical stress, misuse, negligence, or accident, or (iv) is used in activities other than as specified by SonoSim for use with the SonoSim System.
7. Virus Warning. SonoSim may request the Customer to temporarily disable anti-virus software to enable SonoSim to complete the installation of the Downloadable Software. SonoSim shall have no liability or responsibility if the Customer’s computer gets a computer virus, computer worm, computer time bomb or similar component during the installation period. SonoSim recommends that Customer back up all data prior to installation of the Downloadable Software, and enable the anti-virus software immediately after installation of the Downloadable Software.
8. 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, 4879-6465-8445, v. 6.1 15 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 Downloadable Software and consult a physician.
9. SonoSim LiveScan® Warning. If the Equipment includes SonoSim LiveScan, it may NOT be used on any person having a pacemaker, implantable cardioverter defibrillator or other electronic medical device.
10. Term and Termination. Customer's license rights to the Downloadable Software will terminate immediately upon termination of an applicable subscription. Upon such termination, Customer must destroy all copies of Downloadable Software in its possession or control.