END USER LICENSE AGREEMENT FOR CAE HEALTHCARE PRODUCTS
CAREFULLY READ THE FOLLOWING LICENSE.
The software you are about to access is provided to you pursuant to the purchase of the Product by the legal entity which employs you, or which you represent (the ÒLicenseeÓ or ÒYouÓ), from CAE Healthcare. This purchase of the Product is subject to CAE HealthcareÕs Healthcare Education Products General Terms and Conditions (the ÒHEPGTCÓ) and this End-User License agreement (ÒLicenseÓ). The HEPGTC can be found at www.caehealthcare.com
1. Interpretations and Definitions
Whenever used in this License, the following terms shall have the meaning set out below:
ÒAuthorized UsersÓ shall mean any person authorized to access the Produce, which shall include the LicenseeÕs employees, agents, representatives, medical staff and students.
ÒConfidential InformationÓ means any and all scientific and technical information which is in the possession of, or belonging to, CAE Healthcare and relating to the Product, including without limitation, all Data, Software, trade secrets, know-how, processes, methodologies, samples, components, analyses, compilations, guides and other information or documents prepared by CAE Healthcare, its subsidiaries and affiliates and/or their officers, servants, agents, representatives, employees or advisers which contain or are otherwise generated from or reflect any CAE Healthcare proprietary information, whether or not covered by intellectual property rights or explicitly designated as confidential or proprietary, which is disclosed by any means in written, oral, electronic, or any other form.
ÒDataÓ means any documentation or other information provided to Licensee in relation with the Product.
ÒProductÓ means any equipment, components, parts, and materials purchased by the Licensee.
ÒPurposeÓ means the use of the Software and the Data solely for the operation and maintenance of the Product, and the use of the Product solely as an educational tool.
ÒSoftwareÓ means the software, in object code only, embedded in or bundled with the Product or required to operate the Product
ÒWorkÓ means any images created by the Products which may have the option to be save or reproduced by the Licensee.
2. License
2.1. In consideration of LicenseeÕs agreement and compliance with the terms and conditions contained in the HEPGTC and in this License, CAE Healthcare grants to Licensee a personal, non-exclusive, non-transferable license to use the Software and Data exclusively with the Product, and with the device on which this License appears.
2.2. Without limiting the foregoing or any other terms in this License, Licensee shall, and shall ensure that any Authorized Users:
2.3. Except for the License granted herein, CAE Healthcare grants no express or implied right under any patent, copyright, mask work right, trademark, know how or other intellectual property rights. The Licensee shall not obtain any rights to CAE HealthcareÕs property, or any part thereof, by implication, estoppel or otherwise. Title to and full ownership of any trade secrets and other intellectual property rights related to the Product and components thereof shall remain with CAE Healthcare and, if applicable, its suppliers. For clarification, Licensee agrees that the source code for the Software is a trade secret of CAE Healthcare and only CAE Healthcare shall have the right to alter, maintain, enhance or otherwise modify the Software.
(a) not copy (save and except for normal back up and disaster recovery purposes provided such copy shall include CAE HealthcareÕs copyright and any other proprietary notices indicated on the Software and Data), ghost, export or produce any derivative works from the Product, or any part thereof, not network the Product without CAE HealthcareÕs prior written approval, or make it available for concurrent use;
(b) not sell, attempt to sell or transfer (unless in compliance with the HEPGTC), sublicense, encumber the Software or Data;
(c) not modify the Product in any way, combine with other programs, or reverse engineer, screen scratch, decompile or disassemble any Software nor otherwise attempt to create or derive the source code related thereto;
(d) not deface or remove any copyright or proprietary notices;
(e) not use the Product without the key, if provided with the Product, or attempt to develop or develop any means or technology which would enable Licensee to bypass the use of the key to operate the Product;
(f) prevent anyone other than Authorized Users from accessing or using the Product;
(g) not incorporate the Product, in whole or in part, to any product or service that Licensee would make available to a third party, on a commercial basis or not.
2.4. Notwithstanding anything else contained in this License, in no event shall Licensee use the Product and/or Confidential Information to enable, support, or otherwise aid Licensee or a third party to develop any product, software or service competitive with any of CAE HealthcareÕs products.
2.5. CAE Healthcare reserves the right to embed a software security mechanism within the Product to monitor usage of the Product to verify LicenseeÕs compliance with this Agreement, as well as to control access to the Software through use of license administration software.
2.6. Licensee hereby recognizes that the entire rights, title and interests in and to Work remain the exclusive property of CAE Healthcare. Licensee shall not modify such Work in any way whatsoever and shall not remove or alter any CAE Healthcare notices. However, Licensee is permitted to produce and reproduce such Work only for non-commercial educational purposes.
3. Consent to Use of Collected Data and Feedback
3.1. Licensee agrees that CAE Healthcare may collect and use technical data and related information, times (ÒCollected DataÓ), including but not limited to technical information about your Product that is gathered periodically to facilitate the provision of Software updates, Product support and other services related to your Product such as Software feature usage and run times. Such Collected Data shall be anonymous, and shall not personally identify any individual users. In the event that Licensee wishes to opt-out of permitting CAE Healthcare from having access to Collected Data, Licensee must inform CAE Healthcare of this requirement.
3.2. Upon the request of CAE Healthcare, Licensee agrees to provide CAE Healthcare, from time to time, with comments, suggestions, data, information or feedback (ÒFeedbackÓ) on the Product.
3.3 Licensee acknowledges and agrees that such Feedback and Collected Data may be freely used by CAE Healthcare, at its sole discretion, for the design, development, improvement, marketing and commercialization of its products and services, without any restrictions based on confidentiality or intellectual property rights.
4. Term and Termination
4.1. This License shall become effective as of the date of your acceptance of this License and shall remain in effect until terminated as provided hereafter
4.2. This License terminates immediately upon termination of the HEPGTC.
4.3. CAE Healthcare may terminate this License immediately, upon written notice, should Licensee (a) attempt to, directly or indirectly, assign or transfer any of the rights granted to it pursuant to this License without CAE HealthcareÕs prior written authorization, (b) disclose, in whole or in part, any Confidential Information, (c) use the Software otherwise than as authorized herein, or (d) is otherwise in breach of its obligations to protect the intellectual property contained in the Product. In addition, should Licensee fail to comply with any other terms and conditions of this Agreement and such failure is not cured within thirty (30) days after receipt of CAE HealthcareÕs written notice, CAE Healthcare may terminate this Agreement immediately.
4.4. Upon termination of this License, Licensee agrees to immediately discontinue use of the Confidential Information and the Product, and to return same to CAE Healthcare as well as any copies.
4.5. The following shall survive and continue in full force and effect notwithstanding any termination of this License: the obligations of Licensee under Sections 2 (License), 5 (Non-Disclosure); as well as any other clauses which by their nature and context are intended to survive.
5. Non-Disclosure
5.1. Licensee agrees to keep this License and all Confidential Information obtained hereunder in strict confidence, and shall only disclose same a) to Authorized Users solely for the Purpose and provided such access to the Product conforms, at all times, to the terms and conditions governing the use of the Product contained herein, or b) if required to be disclosed by law, and only to the extent of such disclosure and limited to the purpose requested, with prior notice to CAE Healthcare to permit it to seek an appropriate remedy to prevent the disclosure, or alternatively to agree to the terms of such disclosure.
5.2. The obligations of confidentiality, use and non-disclosure referred to in this Section 5 shall not apply to information which: (i) is or becomes publicly available through no fault of Licensee; (ii) was already in the rightful possession of Licensee prior to its receipt from CAE Healthcare; (iii) is independently developed by Licensee, provided it is not, in whole or in part, related to the Product; and (iv) is obtained by Licensee in good faith and on a non-confidential basis and without a use restriction from a third party who lawfully obtained and disclosed such information. However, Confidential Information does not come within the foregoing exceptions merely because features of it may be found separately or within a general disclosure in the public domain.
5.3. Licensee agrees to be responsible for enforcing the terms of this Section 5 and to take such action, legal or otherwise, to the extent necessary to cause anyone having access to the Confidential Information to comply with the terms and conditions set forth herein (including all actions that Licensee would take to protect its own trade secrets and confidential information but with not less than reasonable care). Licensee shall be responsible and indemnify, defend and hold harmless CAE Healthcare for any default caused by any such persons.
6. Irreparable Harm
6.1. Licensee acknowledges that the Software and Data constitute a special, irreplaceable asset of great value to CAE Healthcare, and that a breach, in any way, of any of LicenseeÕs obligations under Sections 2 (License), and 5 (Non-Disclosure) hereof would cause serious and irreparable harm to CAE Healthcare which may not be adequately compensated for in damages. If the Licensee breaches any of such provisions, Licensee consents to an injunction being issued against it restraining it from any further breach of such provision, without derogation from any other remedy which CAE Healthcare may have in the event of such a breach.
7. Warranty
7.1. THE SOLE WARRANTIES PROVIDED BY CAE HEALTHCARE ARE LIMITED TO THE WARRANTIES PROVIDED IN THE HEPGTC. ANY WARRANTIES PROVIDED ARE PERSONAL AND NOT TRANSFERABLE.
8. Limitation of Liability
8.1. CAE HEALTHCAREÕS LIABILITY SHALL IN NO CIRCUMSTANCES EXCEED THE LIMITATION OF LIABILITY INDICATED IN THE HEPGTC.
8.2. IN NO EVENT WILL CAE HEALTHCARE BE LIABLE FOR ANY LOSS OF USE, LOSS OF PROFIT, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF CAE HEALTHCARE HAS BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CAE HEALTHCAREÕS LIABILITY TO LICENSEE FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE PURCHASE PRICE OF THE PRODUCT PAID BY LICENSEE.
9. Third-Party Software
9.1. The Software may come bundled or otherwise be distributed with open source or other third party software, which is subject to the terms and conditions of the specific license under which it is distributed. OPEN SOURCE SOFTWARE IS PROVIDED BY CAE HEALTHCARE "AS IS" WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA, AS IT RELATES TO ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH OPEN SOURCE SOFTWARE, DELL SHALL HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Administrative Provisions
10.1 Applicable Law and Jurisdiction. This License shall be governed by, subject to, and interpreted according to the laws of the State of Florida, U. S. A., without regard to its conflict of law rules. In all cases, the Parties expressly exclude and waive the application of the United Nations Convention on Commercial Agreements for the International Sale of Goods (1980) (Vienna Sales Convention) as amended. The exclusive jurisdiction for the resolution of any and all disputes arising out of or in connection with this Agreement shall be a court of appropriate jurisdiction located in the State of Florida, U.S.A. Each Party hereby waives any right that it might otherwise have to object to such venue or seek dismissal of the action on the basis of forum non-conveniens. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS LICENSE. Notwithstanding the foregoing, if a party seeks injunctive proceedings to preserve confidentiality obligations or intellectual property rights, then it is entitled to seek relief before the competent court/body of any jurisdiction.
10.2. United States Government Licensee: If Licensee is the United States Government (ÒU.S. GovernmentÓ) or a unit or agency of the U.S. Government, the Software and Data are deemed to be Òcommercial computer softwareÓ and Òcommercial computer software documentationÓ, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212 b) as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the Software and/or Data by the U. S. Government, or any of its units or agencies shall be governed solely by the terms of this License and the HEPGTC. Any technical data provided by CAE Healthcare with the Product that is not covered by the above provisions is deemed to be "technical data-commercial items" pursuant to DFAR Section 252.227.7015(a).
10.3. Export Controls: Licensee acknowledges that the laws and regulations of the United States may restrict the export and re-export of commodities and technical data of United States origin, including the Software. Licensee agrees that it will not export or re-export Software of, or containing items of, United States origin, in any form, without the appropriate United States and foreign governmental licenses.
10.4. Excluded Data: Licensee acknowledges that Software provided under this License are not designed with security and access management for the processing and/or storage of the following categories of data: (1) data that is classified and or used on the U.S. Munitions list, including software and technical data; (2) articles, services and related technical data designated as defence articles and defence services; (3) ITAR (International Traffic in Arms Regulations) related data; and (4) other personally identifiable information that is subject to heightened security requirements as a result of Licensee's internal policies or practices or by law (collectively referred to as "Excluded Data"). Licensee hereby agrees that Licensee is solely responsible for reviewing its data that will be provided to CAE Healthcare (or to which CAE Healthcare will have access) to ensure that it does not contain Excluded Data
10.5. No Waiver: No omission or delay by either party at any time to enforce a right or remedy reserved to it or to require performance of any of the terms of this License at the times designated, shall be a waiver of such right or remedy to which the party is entitled, nor shall it in any way affect the right of the party to subsequently enforce such provisions.
10.6 Modification: No provision of this License shall be deemed waived, amended or modified by either party unless the waiver, amendment or modification is in writing and signed by each of the parties to this License.
10.7 Severability: If any one or more of the provisions of this License is for any reason held invalid, illegal or unenforceable, the remaining provisions of this Agreement will be unimpaired.
End of End User License Agreement