SOFTWARE END-USER LICENSE AGREEMENT
This Software End-User License Agreement (the “License Agreement”) is being entered into by and between Breas Medical, Inc. (“BREAS”) and you, the end-user (“you”)(BREAS and you are sometimes individually referred to herein as a “Party” and collectively as the “Parties”). You have purchased, or obtained the right to use, certain products of BREAS (the “Products”). This License Agreement sets forth the terms under which you shall be permitted to use BREAS’s proprietary software product named Nitelog (together with any documentation relating thereto, the “Software”) which may be incorporated into or usable in conjunction with all or part of the Products. You are required to accept the terms of this License Agreement prior to your use of the Software.
THE SOFTWARE IS THE PROPERTY OF BREAS AND IS PROTECTED BY COPYRIGHT LAWS, TRADE SECRET LAWS AND INTERNATIONAL TREATIES. YOUR RIGHT TO USE THE SOFTWARE IS GOVERNED IN ALL RESPECTS BY THIS LICENSE AGREEMENT.
THIS LICENSE AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (THE END USER) AND BREAS GOVERNING YOUR USE OF THE SOFTWARE. BY DOWNLOADING OR USING THIS SOFTWARE IN ANY WAY YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD THIS SOFTWARE, DO NOT USE THIS SOFTWARE IN ANY WAY, AND PROMPTLY DELETE OR DESTROY ANY COPIES OF THIS SOFTWARE IN YOUR POSSESSION.
A. BREAS hereby grants you a non-exclusive, limited, non-transferable, non-sublicenseable right to use the Software solely as part of or in connection with your use of the Products, subject to the terms and conditions of this License Agreement.
B. You may not sublicense, lend, rent, lease or otherwise make the Software available to third parties, and any such transfer of the Software shall terminate your license to use the Software. You may not export or re-export the Software without first obtaining the appropriate U.S. government and foreign government authorizations to do so.
C. You may not: (i) decompile, disassemble or reverse engineer the Software, (ii) make any changes, modification or derivative works to the Software, (iii) copy, transfer, or otherwise use the Software except as part of or in connection with the Products and as stated in this License Agreement. Use of the Software in conjunction with any non-BREAS product, including any such product which decompiles or recompiles the Software or in any way creates a derivative or modified copy of the Software, is not an authorized use, voids this license and automatically terminates your right to use the Software.
D. The license granted by this License Agreement may be terminated immediately by BREAS if you breach any of the terms of this License Agreement. In the event of such a termination, you agree to stop all use of the Software and to return to BREAS or certify to the deletion or destruction of all copies of the Software in your possession.
2. PROPRIETARY RIGHTS.
A. Except for the limited license granted herein, BREAS (and its licensors) shall at all times retain full right, title and ownership interest in and to the Software, including, without limitation, all patent, trademark, copyright, proprietary rights and trade secret rights relating thereto. You agree not to remove, alter or destroy any proprietary markings or legends that have been placed on or in the Software or any related documentation.
B. You agree that no title to the Software (or its source code), or the intellectual property in the Software, or in any Software copy, is transferred to you under this License Agreement, and all the rights not expressly granted to you hereunder are reserved by BREAS. The Software is confidential and proprietary to BREAS and its licensors, and you shall hold the Software in strict confidence. You will not use any information, in tangible or intangible form, which has been or may be disclosed to you under or in connection with this License Agreement for the purpose of creating or duplicating or attempting to create or duplicate the Software or the source code thereto.
3. DERIVATIVE WORKS. In the event that, notwithstanding any terms hereof that restrict your right to make changes to the Software and other restrictions set forth herein, you create any inventions, know-how, trade secrets, formulas, technical processes and information, manufacturing and testing techniques and procedures, operating procedures, all other intellectual and other property, data, techniques and procedures, engineering data and plans, and all other business data and information related to the Software, including any and all patents, patent applications, inventions and discoveries that may be patentable, registered and unregistered copyrights in both published works and unpublished works, and know-how, trade secrets, confidential or proprietary information included therein or related thereto (collectively, the “Derivative Works”), it is agreed that any and all such Derivative Works and all rights therein shall be the sole and exclusive property of BREAS.
4. DISCLAIMER OF WARRANTIES; LIMITATION OF REMEDIES.
A. THIS SOFTWARE IS DISTRIBUTED “AS IS” AND YOU, ITS USER, ASSUME ALL RISKS WHEN DOWNLOADING OR USING IT. THERE ARE NO WARRANTIES EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. BREAS DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BREAS DOES NOT WARRANT THAT THE SOFTWARE IS NON-INFRINGING, THAT IT WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS FREE. IN NO EVENT SHALL BREAS BE LIABLE FOR ANY DAMAGES OF ANY KIND INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (WHICH SHALL INCLUDE WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF BREAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. IN NO EVENT SHALL BREAS’S ENTIRE LIABILITY FOR DAMAGES FROM ANY EVENT OR CLAIM ARISING UNDER OR RELATING TO THIS LICENSE AGREEMENT AND/OR YOUR USE OF THE SOFTWARE EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SOFTWARE (EXPRESSLY EXCLUDING ANY AMOUNTS PAID BY YOU FOR ANY OTHER PRODUCTS).
5. GENERATION AND STORAGE OF HEALTH INFORMATION. You acknowledge and agree that you have the option to use the Software either by registering it under you name or using it anonymously. You acknowledge and agree that your use of the Software in conjunction with Products may generate information and data that may qualify as health information and, if the Software is registered under your name, the information and data will be personally identifiable with you. All such information will be stored on your mobile phone or other mobile device and it shall be your sole responsibility for ensuring the security of such information. BREAS will not have access to the data and information or retain copies or back-up copies on your behalf. In the event you elect to e-mail or otherwise send such health information to any third party by e-mail or other communication, you do so at your sole risk. E-mail messages on your computer, your laptop, smartphone, and/or your PDA have inherent privacy risks – especially when access to your e-mail messages is not password protected. BREAS shall have no responsibility with respect to the use or disclosure of such information by any third party to whom you disclose information or the security of the transmission of any such information.
6. COMPLIANCE WITH LAW. You agree to comply fully with all laws and regulations of the United States and other countries to assure that neither the Software, nor any direct products thereof are (1) exported, directly or indirectly, in violation of any laws or regulations, or (2) are used for any purpose prohibited by any laws or regulations. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s List of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
7. GENERAL. If any provision of this License Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this License Agreement and shall not affect the validity and enforceability of the remaining provisions of this License Agreement. This License Agreement is governed by the substantive laws of the Commonwealth of Massachusetts without regard to its rules governing conflicts of laws. Any controversy, claim or dispute arising under or relating to this Agreement shall be resolved by arbitration in accordance with the then existing rules of the American Arbitration Association and any such arbitration shall be conducted in the Commonwealth of Massachusetts. Any assignment of this License Agreement by you without the prior written consent of BREAS shall be null and void. This License Agreement constitutes the entire agreement between you and BREAS with regard to your use of the Software, and supersedes all previous communications, whether written or oral, between the parties with respect to your use of the Software. No waiver or modification of any of the provisions hereof shall be binding unless in writing and signed by duly authorized representatives of both you and BREAS.
8. SURVIVAL. In the event of any expiration or termination of this License Agreement, all rights and obligations of the Parties hereto shall cease except for the rights and obligations set forth in this Section and Sections 1.B, 1.C, 2, 3, 4, 6 and 7, all of which shall survive and remain in full force and effect indefinitely or in accordance with the terms thereof.
9. WAIVER. The performance of or compliance with a Party’s obligations hereunder may be waived, but only in writing signed by an authorized representative of the applicable counterparty or counterparties. A waiver of compliance with any provision of this License Agreement shall not constitute a waiver of any subsequent lack of compliance with such provision or of any other provision of this License Agreement. Except as provided in this License Agreement, no delay or failure on the part of either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of either Party of any such right, power or privilege, nor any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
10. FURTHER ASSURANCES. The Parties hereto shall do and perform or cause to be done and performed all such further acts and things and shall execute and deliver all such other documents as any other Party may reasonably request from time to time in order to carry out the intent and purpose of this License Agreement contemplated hereby. No Party shall voluntarily undertake any course of action inconsistent with satisfaction of the requirements applicable to them set forth in this License Agreement and each shall promptly do all such acts and take all such measures as may be appropriate to enable them to perform as early as practicable the obligations herein required to be performed by them.
11. ENTIRE AGREEMENT. This License Agreement is intended by the Parties as a final expression of their agreement and as a complete and exclusive statement of the terms of their agreement with respect to its subject matter. This License Agreement may not be contradicted by evidence of any prior or contemporaneous agreement, oral or written, and this License Agreement may not be explained or supplemented by evidence of consistent additional terms. No previous course of dealing will be admissible to explain, modify or contradict the terms of this License Agreement. This License Agreement supersedes, merges, and voids all prior representations, statements, negotiations, understandings, proposed agreements, and other agreements, written or oral, relating to its subject matter.
12. AMENDMENTS. This License Agreement may not be amended, modified or supplemented except by the prior written consent of both you and BREAS.