End User License Agreement

ExactVu™ End User License Agreement


This End-User License Agreement ("AGREEMENT") is a non-exclusive legal agreement between, subject to Section 14.1 hereof, the registered user of this system ("USER") and Exact Imaging Inc. ("the Company"), the developer of the ExactVu™ Micro-Ultrasound System (as defined herein). Under this AGREEMENT USER will acquire limited rights for the use of the System including without limitation the Computer, the Software and the Machinery (each as defined herein). By installing, copying, or otherwise using the Software, the Computer, the System and/or the Machinery, USER agrees to be bound by the terms of this AGREEMENT. If USER does not agree to the terms of this AGREEMENT in any way, the Company will not agree to license the Software or provide the Computer, System or Machinery to USER. In such event USER may not use or copy the Software, Computer, System or Machinery in any shape or form and USER should promptly contact the Company or its representatives for instructions on return of the unused instrument(s).

1. Definitions

1.1 Software - that portion of the compiled and integrated proprietary data code created or licensed by the Company which is utilized by the System including the associated media and any accompanying documents including electronic documents.

1.2 Computer - the hardware and systems used for or relating to the storing, manipulation and communication of information, data or Software which is part of the System.

1.3 System – a set of components supplied by the Company or its representatives to USER including but not limited to the Software, Computer, Machinery, input/output connectors and components for connecting the Computer to the Machinery, and associated communication devices.

1.4 Machinery - all transducers, transmitters, receivers, converters, circuits, generators, motors, and electrical, electronic, or mechanical equipment producing the signal(s) to be inputted to the System or Computer.

2. Software License

2.1 The Company states and USER agrees that the Software, Computer, System and Machinery are protected by copyright, patent, and trademark laws, as well as other intellectual property laws and international treaties. The Software is being licensed under the terms and conditions of this AGREEMENT and is not being sold in any way. USER acknowledges that it does not own, nor will it acquire as a result of this AGREEMENT any intellectual property rights to the Software, Computer, System or Machinery.

2.2 Grant of License

(A) - Software. USER may install or use one copy of the Software in, and only in, the System provided with the Software by the Company. Each license is applicable to a single System. USER may not use the Software on additional Systems without the signed written agreement of the Company. The Company reserves the right to require additional licenses and additional fees for the use of the Software on additional Systems.

(B) - Computer. A Computer shall be provided with the Software installed. No other computer or electronic device may be utilized for running the Software. Such Computer shall have functionality to permit the USER to access the data being entered into the Computer through the System. Security of the Computer and Software is the sole responsibility of USER.

(C) - System Services. The Software includes functionality that enables the System to act as an high-resolution micro-ultrasound system for urological imaging and biopsy guidance.

(D) - Storage/Network. USER may not store or install a copy of the Software on other computers or allow the use of the Software on other computers. However, USER may access the Computer from an intranet/internet web application from any number of computers/work stations. All access to the Computer is controlled by USER.

2.3 Disclaimer of Liability

To the maximum extent permitted by law, the Company disclaims any and all liability from or related to the use of the System by USER including without limitation any liability relating to any express or implied warranties or any indirect, incidental, special, punitive or consequential damages.

3. Consideration

The USER acknowledges that the receipt of the System and its rights hereunder constitute good and valuable consideration, the receipt and sufficiency of which is acknowledged by the USER, and this AGREEMENT is a binding obligation of USER.

4. Description of Other Rights and Limitations

4.1 - Limitations on Reverse Engineering, Decompilation and Disassembly.

USER may not reverse engineer, decompile, or disassemble the Software, Computer, System or Machinery unless expressly authorized to do so in writing by the Company. USER shall take all reasonable steps to prevent a third party from reverse engineering, decompiling, or disassembling the Software, Computer, System or Machinery on USER's behalf or on the behalf of others.

4.2 - Single Computer.

The Software is licensed with the Computer as an integrated single instrument. The Software may only be used with the Computer supplied with the System.

4.3 - Rental.

USER may not rent or lease the Software, Computer, System or Machinery to external third parties unless expressly authorized to do so in a separate written agreement signed by the Company.

4.4 - Termination.

Without prejudice to any other rights, the Company may immediately terminate this AGREEMENT if USER fails to comply with any of its terms and conditions. In such event, USER must return or destroy the Computer, Software, System and Machinery, including without limitation all copies of the Software and all of the System's component parts. USER expressly acknowledges and agrees that Sections 4.1, 7, 8, 11, 12 and 14 of this AGREEMENT shall survive the expiration or termination of this AGREEMENT for any reason.

4.5 - Access to the Computer.

Network access to the Computer is at USER's discretion, and is USER's responsibility. The Computer is capable of supporting LAN/WAN intranet as well as internet accessibility. USER must provide the network and any connection software and hardware necessary to connect with the Computer. Such access will not be controlled or regulated by the Company.

4.6 - CLINICAL USE.

USER warrants and represents that the Software, Computer, System and Machinery will be used only in carrying out, performing and fulfilling clinical or clinical research use in the field of Urology and for no other purpose and in particular not for use in pre-clinical procedures unless authorized to do so by the appropriate regulatory authorities. Any other use by USER shall be grounds for termination as defined in Section 4.4.

5.Updates

The Company may in its sole discretion make available to USER patch or maintenance updates free of charge. Upon the incorporation of such updates into the System, they and the original software may only be used in conjunction with this AGREEMENT.

6. Upgrades

The Company may in its sole discretion release an upgrade of the Software having additional functionality. Each upgrade may include a separate agreement which, upon the upgrade's installation or use in the USER’s System shall be incorporated with this AGREEMENT, and both shall bind the USER. If the Software is an upgrade from one version to another, USER may use the Software only in conjunction with the upgraded version. The Company reserves the right to require an additional fee for the use of the upgraded Software.

7. Copyright

All copyrights in and to the Software, System and written materials (including but not limited to any images, photographs, animations, video, audio, music, text and "applets", incorporated in the Software or System), the accompanying printed materials, and any copies of the Software, are legally exploited by the Company. The Software is protected by Canadian copyright laws and international treaty provisions, and all rights are reserved. USER may not copy the printed material accompanying the Software without the express written permission of the Company. The Company grants USER express, written permission to make copies of the printed materials as required for internal purposes only.

8. Patent

All present and future patent rights to the Software, Computer, System or Machinery, shall remain the exclusive property of the Company. Such rights are protected by U.S. and Canadian law and related international treaty provisions.

9. Support

Support of the Software, Computer, System or Machinery shall be provided only by the Company or by a service provider designated by the Company at its exclusive discretion.

10. Backup Copy

After installation of one copy of the Software pursuant to this AGREEMENT, USER may keep the original medium on which the Software was provided by the Company solely for backup or archival purposes. If the original medium is required to use the Software on the Computer, USER may make one copy of the Software solely for backup or archival purposes. Except as expressly provided in this AGREEMENT, USER may not otherwise make copies of the Software or the printed materials accompanying the Software.

 

USER’s Obligations

12. Confidentiality

12.1 USER acknowledges that USER may have access to and be entrusted with Confidential Information and trade secrets relating to the Company. The term "Confidential Information" means the confidential or proprietary information of the Company relating to its business or affairs. USER acknowledges that this AGREEMENT is not a license to use the Company’s Confidential Information. Accordingly, USER covenants and agrees with the Company that USER shall not disclose any Confidential Information to any person, nor shall USER use, directly or indirectly, any Confidential Information for any purpose not contemplated by this AGREEMENT, nor shall USER disclose or use for any purpose other than that of this AGREEMENT any other information of a confidential nature which USER may acquire with respect to the business of the Company. USER will take all reasonable precautions to prevent inadvertent disclosure of Confidential Information. This prohibition against disclosure includes, but is not limited to, disclosing that any similarity exists between the Confidential Information and information independently developed by another person or entity.

12.2 "Confidential Information" specifically does not include any of the foregoing which:

(A) is or becomes a matter of public knowledge, other than as a result of disclosure by USER or their agents or representatives in violation of this AGREEMENT;

(B) was known by USER prior to their acquisition of the System, Computer, Software or Machinery provided any such knowledge was lawfully obtained or developed;

(C) subsequently becomes known to USER from a third party, if the third party is not bound by a confidentiality agreement and the third party can demonstrate it lawfully obtained the information;

(D) is independently developed by USER personnel not privy to the Confidential Information disclosed under this AGREEMENT.

12.3 USER will not sub-license or attempt to sub-lease to any party anything provided by the Company to USER. USER warrants that it is under no obligations to any other entity that is in any way inconsistent with the carrying out of its responsibilities under this AGREEMENT.

12.4 Upon the demand of the Company, USER will deliver up within ten (10) days any and all Confidential Information in its possession or control, together with any and all copies thereof and any and all written notes or comments made by or for USER with respect to said Confidential Information.

 

13. Miscellaneous

13.1 The failure of a party to exercise any right, power or option or to enforce any remedy or to insist upon the strict compliance with the terms, conditions and covenants under this AGREEMENT shall not constitute a waiver of the terms, conditions and covenants herein with respect to that or any other or subsequent breach thereof.

13.2 If any provision of this AGREEMENT is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such provision shall be deemed severed from this AGREEMENT and shall not affect the validity, legality or enforceability of the remaining provisions of this AGREEMENT.

13.3 The USER acknowledges that the Software is subject to restrictions and controls imposed by the Export and Import Permits Act (Canada) and regulations enacted under the Export and Import Permits Act as well as the U.S. export controls regulations administered by the U.S. Dept. of Commerce and that the USER will comply with all applicable laws and regulations.

13.4 This AGREEMENT shall be governed by the Province of Ontario and the federal laws of Canada without regard to its conflicts of law provisions. To resolve any legal dispute arising from this AGREEMENT, the USER and the Company agree to the exclusive jurisdiction of the Province of Ontario.

 

14. Third Party Software

14.1 It is acknowledged and agreed that the Software may include one or more software components provided under license by third parties including without limitation such parties listed below, wherein the ownership of such components resides with their respective providers. The USER acknowledges and agrees that the rights of the Company in relation to the Software listed in this AGREEMENT shall enure to the benefit of such third party providers in relation to any software components which they provide and which make up part of the Software.


Providers:
Merge Healthcare Canada Corp.

 

Regarding this End User Licensing Agreement, please contact Exact Imaging Inc.:

 

Last Modified: 21 November 2017



© 2018 Exact imaging
ExactVu™, Exact Imaging™, PRI-MUS™, FusionVu™, Cognitive Assist™ and ExactVu Micro Doppler™ are trademarks of Exact Imaging.
ExactVu™ micro-ultrasound system is available for sale in the European Union (CE Mark), the United States (FDA 510(k) clearance), and in Canada (Health Canada license).