1) GRANT OF SUBLICENSE. Subject to the terms and conditions herein, You are granted a non-exclusive, non-transferable, non-assignable, revocable, fee-bearing and worldwide sublicense to use Software solely on one (1) computer or Heska Imaging Equipment sold directly or through an authorized Heska Imaging reseller, OEM, or Distributor, solely for the purpose of furtherance of your expert veterinary medical diagnosis within the United States of America, provided that the product(s) on which the Software is operating has regulatory, governmental, safety, and legal approval for use in the locale in which you intend to use them, and that You take full responsibility in determining if such product(s) have such approvals. Heska Imaging reserves the right to delay activation or deactivate Software until all payments owed from you are received. You agree that this remedy is reasonable, and you disclaim any complaint, damage, loss of profits or liability related to this remedy. From time to time, Software may require re-registration, and You agree to input the necessary information and confirm adherence to this EUSLA and any Agreement(s) between Us to complete re-registration, and that, if You do not complete re-registration properly, the Software may not function per its intended use.
2) RIGHTS AND LIMITATIONS. Copyright, trademark, and trade secrets laws, international treaty provisions and various other intellectual property laws protect Software. You may not copy, modify, reverse engineer, decompile, or disassemble any Software under any circumstances. Notwithstanding the foregoing, You may make one copy of the Software for back-up and archival purposes. The Software’s component parts may not be separated for any use. You may not use Software for commercial purposes or display (other than as an individual end user), nor sell, or otherwise transfer it for value. “Commercial purposes” include, without limitation, the use of the Software to create publicly distributed computer software or demonstrations or comparisons. You may not license, sublicense, sell, rent, lease, lend transfer, distribute or provide commercial hosting services with respect to Software. You may not copy the printed materials accompanying the Software, nor use such printed materials in the creation, design, or coding of or comparison with another product. You may not remove, modify or alter any copyright or trademark notice from any part of the Software, including those contained in or otherwise created by the Software. You may receive Software in more than one medium. Regardless of the type of the medium you receive, you may use only that one medium that is appropriate for your single computer or device. You may not use or install the other medium on another computer or device. You may not loan, rent, lease, or otherwise transfer the other medium to another user. Upon transmission, using the Software, of any data to Us, You confer onto Us, as applicable, access, ownership and use rights to such data, without limitation the right to display, publish, or use in any fashion such data, provided however that We shall maintain compliance with HIPPA, if applicable, and any other applicable patient confidentiality laws and regulations protecting the data.
3) UPGRADES and SUBSCRIPTION. If Software is identified as an “upgrade” or “subscription,” You may use the upgraded product only under the limits and terms of this EUSLA. If the Software is an upgrade of a component of a package of software programs that you licensed as a single product, the Software may be used only as part of that single product package and may not be separated from the package.
4) OWNERSHIP & OTHER RESTRICTIONS. All right, title, interest and other proprietary rights (including without limitation trademarks and copyrights) which pertain to Software, including without limitation accompanying printed materials and copies of the Software, are owned or licensed by Heska Imaging, LLC or its affiliates, and remain Heska Imaging, LLC’s property. Nothing in this Agreement will be deemed to convey any title or ownership interest in the Software to You.
5) SUPPORT. We may provide you with support services related to the Software (“Support”). The provision and use of Support is subject to the terms and conditions herein, and the terms and conditions of the Heska Imaging Master Warranty and Support Terms and Conditions and any License to which Sublicensor is subject. Any supplemental software code provided to you as part of Support shall be part of the Software and subject to this EUSLA. With respect to technical information or Data You provide as part of the Support, it may be used for any of Our business purposes, unless otherwise limited in writing.
6) TERMINATION ASSIGNMENT AND LAW. We may terminate this EUSLA if You fail to comply with the terms and conditions of this EUSLA or pay monies owed to Us or violate any Agreement between You and Us. In the event of Your failure to comply with the terms and conditions of this EUSLA, You must cure such defect within ten (10) days. Such termination is not the exclusive remedy to Us. If such termination occurs, You must immediately pay to Us all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination. You must destroy all copies of Software and its component parts within thirty (30) days, and We are under no obligation to activate, re- activate, extend, or otherwise make useable the Software. You may not partially or wholly transfer or assign your rights under this EUSLA, without the express written permission of Heska Imaging. This Agreement shall be governed by and construed for validity, performance, and enforced in accordance with the laws of the State of Colorado (USA), without giving effect to the choice of law principles thereof.
7) LIMITED WARRANTY AND LIABILITY. You agree, at your option, and such action will be Your sole remedy with respect thereto, to (a) repair or replace defective Software; or (b) reperform Support. This limited warranty is void if failure of Software has resulted from Your or third party’s negligence, accident, abuse, misapplication, external factors beyond Our control, failure or defect of hardware, middleware, or software not part of Software, or other event within Your control to remedy or mitigate. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE
DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT. No warranty shall be created or increased in scope by other oral or written communication from Us or our employees, agents or other representatives. To the extent implied warranties may not be entirely disclaimed but implied warranty limitations are allowed by applicable law, implied warranties on the Software, if any, are limited to ninety (90) days. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, FOR LOSS OF PROFITS, DATA, BUSINESS INTERRUPTION, MALPRACTICE LIABILITY, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, OUR ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EUSLA SHALL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAID BY YOU FOR (i) THE SUBLICENSE OF SOFTWARE OR (ii) SUPPORT THAT DIRECTLY CAUSED THE DAMAGE. YOU REPRESENT THAT YOU ARE A LICENSED MEDICAL PRACTITIONER AND THAT YOU ARE SOLELY RESPONSIBLE FOR YOUR DIAGNOSTIC AND MEDICAL OPINION. YOU ACKNOWLEDGE THAT THE SOFTWARE IS AN ADVISORY DEVICE AND IS NOT DESIGNED TO SUBSTITUTE FOR THE PRIMARY DEFENCES AGAINST DEATH OR INJURY DURING SURGICAL, MEDICAL LIFE SUPPORT OR OTHER POTENTIALLY HAZARDOUS APPLICATIONS WHICH SHALL CONTINUE TO BE SOLELY DEPENDANT YOUR SKILL, KNOWLEDGE AND EXPERIENCE.
8) INDEMNIFICATION. You will defend, indemnify and hold harmless Us and/or our affiliated companies and respective officers, directors, employees and agents (“Heska Indemnitees”) against claims resulting from breach by You of any term or condition of this Agreement, Your negligence relating to its activities in connection with this Agreement, or infringement or misappropriation by You of any Heska or third party intellectual property right, trade secret, United States patent or copyright, and shall indemnify Heska Indemnitees for damages finally awarded against Heska, and for reasonable legal fees incurred in connection with any such claims or the amounts agreed to in settlement of any such claims.
9) FORCE MAJEURE. We shall not be liable or responsible for delays or failures in performance resulting from events beyond Our reasonable control and without fault or negligence. Such events shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, acts of government, fire, nuclear accidents, earthquakes, acts of terrorism, other disasters, or acts of other approved third parties outside of Our reasonable control and not caused by the negligence of the non-performing Party. We shall be not be liable or responsible for delays or failures in performance resulting from interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications (including but not limited to Internet connectivity) not under the control of Our or third party services, virus attacks or hackers, failure or downtime of any third party software (including, without limitation, web server software, FTP Servers, or statistics), network issues relating to Heska’s site or network, or inability to obtain supplies, or power used in or equipment needed for provision of services. We will guarantee only those areas considered under the control of Heska.
10) SEVERABILITY. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
12) No Agency. We and You are independent contractors with respect to each other, and nothing herein shall create any association, partnership, joint venture or agency relationship between them.
13) Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TERMS, OR THE BREACH, TERMINATION OR VALIDITY OF THESE TERMS, OR THE TRANSACTIONS CONTEMPLATED BY THESE TERMS. EACH PARTY CERTIFIES THAT IT MAKES THIS WAIVER VOLUNTARILY.
14) Confidentiality. We may disclose to You and each User information that We consider to be confidential and/or proprietary (“Confidential Information”). Notwithstanding any provision of these Terms to the contrary, “Confidential Information” shall be deemed to include information relating to the Platform, the nature of the Accessible Content, the terms and conditions of any Order Form, the amount of any fees paid to Us in connection with the Services, and technical and business information relating to Our business operations, including, but not limited to inventions, software, research and development, future product specifications, implementation methodologies, engineering processes, costs, profit information, and marketing and future business plans. You and each User agrees, unless required by law, not to use or make Our Confidential Information available to any third party for any purpose other than as necessary to perform by these Terms. You and each User agrees that you shall protect Our Confidential Information by using no less than a reasonable degree of care to prevent its unauthorized use, dissemination or publication by Users and/or its employees or agents. “Confidential Information” shall not include information that: (a) is or becomes publicly available through no act or omission of You and/or a User; (b) was in the lawful possession You and/or a User prior to the disclosure by Us and was not obtained by You and/or a User either directly or indirectly from Us; (c) is lawfully disclosed to You and/or a User by a third party without restriction on further disclosure, and where the discloser was not aware that the information was Our Confidential Information; and/or (d) is independently developed by You and/or a User without violation of these Terms.
Notwithstanding any provision of these Terms to the contrary, disclosure of Confidential Information shall not be precluded if such disclosure is: (x) in response to a valid order of a court or other governmental body, provided, however, that You and/or the applicable User shall first promptly provide Us notice of the order and make a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued; (y) otherwise required by law; and/or (z) necessary to establish the Your rights by these Terms.