SOFTWARE LICENSE AGREEMENT
Sherwood Services AG, Tyco Healthcare, and its affiliate Valleylab (collectively “SSAG”) is the owner of the entire right, title, and interest in and to all of the computer programs and all portions thereof, and associated documentation (collectively, the "Software") provided to Customer as may be installed in the Products or provided separately, and has the sole right to grant licenses thereunder.
The price paid by Customer for the products incorporating Software, include as a portion of that price a license fee granting Customer only the rights set forth in this License Agreement. Customer further acknowledges and agrees that the Software is owned exclusively by SSAG. The Software is licensed to be installed and used on only one computing device, and a valid license must be purchased for each computing device on which the Software is installed.
Single User License Grant: SSAG grants to Customer a limited, nonexclusive, non-sublicensable, nontransferable and revocable license(unless Customer breaches This License Agreement) to use the Software, exclusively at Customer’s offices as identified by Customer as the ship to location of the Product, solely in machine-readable object code form only on a single central processing unit owned or leased by Customer or otherwise embedded in equipment provided by SSAG, and for the sole purpose of Customer’s internal business purpose in the operation of the medical equipment purchased from, other otherwise provided by, SSAG.
Except to the extent expressly authorized in this Software License Agreement or by law, Customer shall not and shall not cause any third party to: (i) decompile, disassemble, or reverse engineer the Software; (ii) modify or create any derivative works (including, without limitation, translations, transformations, adaptations or other recast or altered versions) based on the Software, or alter the Software in any way; (iii) merge the Software with any other software or product not supplied by SSAG; (iv) use, copy, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Software except as expressly authorized by the Agreement; (v) distribute, disclose or allow use of the Software, in any format, through any timesharing service, service bureau, network or by any other means, to or by any third parties; (vi) remove or modify any copyright, confidential and/or proprietary markings, legends or restriction which are in the Software originally supplied to Customer; or (vii) violate any obligations with regard to SSAG’s Confidential Information. To the extent that Customer is expressly permitted by applicable mandatory law to undertake any of the activities listed in the preceding sentence, Customer will not exercise those rights until Customer has given SSAG thirty (30) days written notice of Customer’s intent to exercise any such rights unless an order of a government agency of competent jurisdiction will not so allow.
Except for the limited license rights expressly granted in this Software License Agreement, SSAG reserves all rights in and to the Software and any modifications thereto and derivations thereof, including, but not limited to, all title, ownership, intellectual property rights and all other rights and interests. Customer will own only the hardware or physical media on which the Software is stored or processed, if any.
Customer agrees that the Software, including the specific design and structure of individual programs, constitute confidential information and trade secrets of SSAG, whether or not the programs may be copyrighted or copyrightable, and/or patented or patentable . Customer agrees not to disclose, provide, or otherwise make available such confidential information, trade secrets or copyrighted material in any form to any third party. Customer agrees that it will make the Software available only to employees, contractors, or consultants with a need to know, who are obligated to comply with all license restrictions contained in this Software License Agreement and to maintain the secrecy of the Software and all other Confidential Information. Customer will be responsible for the compliance of all users with those obligations.
Customer may, from time to time, request that SSAG incorporate certain features, enhancements or modifications into the Software. SSAG may, in its sole discretion, undertake to incorporate such changes and distribute the Software so modified to all or any of SSAG's customers. All such error corrections, bug fixes, patches, updates or other modifications shall be the sole property of SSAG.
This License is effective until terminated. Customer may terminate this License at any time by destroying all copies of Software including any documentation. This License will terminate immediately upon notice from SSAG if Customer fails to comply with any provision of this License or the Supplier Agreement. SSAG may terminate the Software licenses granted herein and exercise all available rights by giving written notice, effective immediately, if within thirty (30) business days of Customer’s receipt of a reasonably detailed written request to cure, Customer has not cured all breaches of license limitations or restrictions. Upon such termination, Customer will immediately pay all undisputed fees outstanding, cease use of all Software, return or delete, at SSAG’s request, all copies of the Software in Customer’s possession, and certify compliance with all of the obligations in this paragraph to SSAG in writing.
Limited Warranty: SSAG represents and warrants to Customer that the Software will perform substantially as described in SSAG's then current documentation for such Software for a period of ninety (90) days from the date of shipment and that the Software contains no known virus, code, or commands to disable it automatically or upon command. If you notify SSAG of defects during the warranty period, SSAG will replace the Software or, at its option, refund the purchase price. Your remedy for breach of this warranty shall be limited to replacement or refund and shall not encompass any other damages. No dealer, distributor, agent or employee of SSAG is authorized to make any modification or addition to the warranty and remedies stated above.
Notwithstanding these warranty provisions, all of SSAG's obligations with respect to such warranties shall be contingent on Customer’s use of the Software in accordance with this Agreement and in accordance with SSAG's instructions as provided by SSAG in the documentation, as such instructions may be amended, supplemented, or modified by SSAG from time to time. SSAG shall have no warranty obligations with respect to any failures of the Software which are the result of accident, abuse, misapplication, extreme power surge or extreme electromagnetic field.
This warranty does not apply to any damages, malfunctions, or non-conformities caused by: (i) Customer’s use of Software in violation of the license granted under the Agreement or in a manner inconsistent with the Documentation; (ii) use of non-SSAG furnished equipment, software, or facilities with Products; (iii) Customer’s failure to follow SSAG’s installation, operation, repair or maintenance instructions; (iv) Customer’s failure to permit SSAG timely access, remote or otherwise, to Products; (v) failure to implement all new Updates to Software provided under the Agreement; (vi) Products that have had their original manufacturer’s serial numbers altered, defaced or deleted; (vii) Products that have been altered, serviced or modified by a party other than SSAG; or (viii) Software that has been subjected to abnormal physical or electrical stress, misuse, negligence or accident by Customer or a third party.
DISCLAIMER: EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT FOR THIRD PARTY CLAIMS. In no event shall ONE PARTY’S liability to THE OTHER PARTY, whether in contract, tort (including negligence), or otherwise, exceed the price paid OR TO HAVE BEEN PAID by Customer. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose. SOME STATES DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES.
If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
This License Agreement contains the entire understanding and agreement between the parties respecting the Software. This Agreement may not be supplemented, modified, amended, released or discharged except by an instrument in writing signed by each party's duly authorized representative. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind.
The construction and performance of this Agreement will be governed by the laws of the State of Colorado without reference to its choice of law principles. The parties hereby submit to the jurisdiction of the courts of the State of Colorado.