Legal
WEBSITE TERMS AND CONDITIONS OF USE
The website located at www.datascopewms.com (“Site”) is a copyrighted work belonging to DATASCOPE North America, Inc. (“DATASCOPE ”, “Company”, “us”, “our”, and “we”). Certain features of the Site may be subject to additional guidelines, terms, or rules, which will be posted on the Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
THESE TERMS OF USE (THESE “TERMS”) SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE. BY ACCESSING OR USING THE SITE, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE THE SITE OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SITE.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 15) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. Disclaimer: All information in this Site is provided on an “as is” and “as available” basis and is for general information only, with no guarantee of completeness, accuracy, timeliness or of the results obtained from the use of this information, and without warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. We make no warranty that the Site will meet your requirements, will be available on an uninterrupted, timely, secure, or error-free basis, or will be accurate, reliable, free of viruses or other harmful code, complete, legal, or safe. In no event will DATASCOPE , its related subsidiaries or affiliates, or the principals, partners, agents or employees thereof be liable to you or anyone else for any decision made or action taken in reliance on the information in this Site or for any consequential, special or similar damages, loss of profits, business interruption, or loss of data, even if advised on the possibility of such damages. If applicable law requires any warranties with respect to the Site, all such warranties are limited in duration to ninety (90) days from the date of first use. In the event your jurisdiction does not allow the exclusion of implied warranties and other representations, these exclusions may not necessarily apply to you.
2. Scope and Acceptance of these Terms: These Terms will apply to your access and use of this Site and the Content in addition to any further or different disclaimers, legal notices, agreements or Terms and Conditions that may apply to your use of or access to any particular Content.
These Terms form a legally binding agreement between you and DATASCOPE . By accessing or using this Site and/or the Content, you accept and agree to abide by these Terms. Should you not agree with these Terms, you must immediately leave this Site and not attempt to access or use this Site or the Content as your access and/or use of this Site or the Content will automatically bind you to these Terms.
3. Modifications: DATASCOPE reserves the right, in DATASCOPE’s sole discretion, to amend and/or replace any of, or the whole of, these Terms with or without notice to you. Such amendments shall supersede and replace any previous Terms and shall be made available on this Site. Each time you access this Site and/or use the Content, you will be consenting, by such access and/or use, to these Terms, as amended and/or replaced from time to time. If you are not satisfied with the amended Terms, you should refrain from using this Site. You agree that DATASCOPE will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.
4. Links to Other Sites: This Site may contain links to other independent third-party sites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. DATASCOPE is not responsible for and does not endorse or accept any responsibility for the availability, contents, products, services or use of any Third-Party Site, any Site accessed from a Third-Party Site, or any changes or updates to such sites. DATASCOPE makes no guarantees about the content or quality of the products or services provided by such sites. DATASCOPE is not responsible for webcasting or any other form of transmission received from any Third-Party Site. DATASCOPE is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by DATASCOPE of the Third-Party Site. You acknowledge that you bear all risks associated with access to and use of content provided on a Third-Party Site and agree that DATASCOPE is not responsible for any loss or damage of any sort you may incur from dealing with a third party. You should contact the site administrator for the applicable Third-Party Site if you have any concerns regarding such links or the content located on any such Third-Party Site.
4.1 Other Users. Each Site user is solely responsible for any and all of its own user content. Because we do not control user content, you acknowledge and agree that we are not responsible for any user content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any user content. Your interactions with other Site users are solely between you and such users. You agree that DATASCOPE will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site user, we are under no obligation to become involved.
4.2 Release. You hereby release and forever discharge DATASCOPE (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, other Site users or any Third-Party Site links). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
5. Security: In order to ensure the security and reliable operation of this Site and the Content to all users of this Site, DATASCOPE hereby reserves the right to take whatever action DATASCOPE may deem necessary to preserve the security, integrity, and reliability of DATASCOPE’s servers, network and back-office applications.
You may not utilize this Site in any manner that could damage, disable, overburden, impair or compromise the security of any DATASCOPE server or the networks connected to any DATASCOPE server or tamper with this Website in any manner whatsoever or interfere with any other person’s use and enjoyment of this Website. You may not attempt to gain unauthorized access to this Site, other accounts, computer systems or networks connected to any DATASCOPE server through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through this Site. Any person or entity which does so, or attempts to do so, shall be held criminally liable and shall also be liable, on an indemnity basis, for any direct and indirect damages or loss that DATASCOPE suffers or sustains.
In addition to the above, any user who: intentionally accesses or intercepts any data without authority or permission to do so; intentionally and without authority to do so, interferes with data in a way which causes such data to be modified, destroyed or otherwise rendered ineffective; utilizes any device or computer program in order to unlawfully overcome security measures designed to protect this Website and the Content or access thereto; commits any act described above with the intent to interfere with access to this Website so as to constitute a denial, including a partial denial of access to and/or use of this Website to legitimate users; performs or threatens to perform any of the above acts for the purpose of obtaining any unlawful proprietary advantage by undertaking to cease or desist from such action, or by undertaking to restore any damage caused as a result of those actions; performs any of the acts described above for the purpose of obtaining any unlawful advantage by causing fake data to be produced with the intent that it be considered or acted upon as if it were authentic; or aids or abets someone to commit any of the foregoing acts, shall, notwithstanding criminal prosecution, be liable for all direct and indirect resulting liability, loss or damages suffered and/or incurred by DATASCOPE and DATASCOPE’s affiliates, agents and/or channel partners on an indemnity basis.
5.1. Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
- (a) You agree not to use the Site to collect, upload, transmit, display, or distribute any user content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
- (b) In addition, you agree not to: (i) upload, transmit, or distribute to or through the Site any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Site to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site (or to other computer systems or networks connected to or used together with the Site), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Site; or (vi) use software or automated agents or scripts to produce multiple accounts on the Site, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
5.2 Enforcement. We reserve the right (but have no obligation) to review any user content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your user content, termination your account in accordance with Section 18, and/or reporting you to law enforcement authorities.
6. Intellectual Property Rights: As used in these Terms, “Intellectual Property Rights” means patents of any type, design rights, utility models or other similar invention rights, copyrights, trademarks, service marks, logos, designations, insignias, brand and trade names, business names, domain names, trade secrets or confidentiality rights and any other intangible property rights, including applications for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected or registered or capable of registration, now existing or hereafter filed, issued or acquired.
All Intellectual Property Rights to this Site and the Content are the property of, or are licensed to, DATASCOPE and as such are protected from infringement by local and international legislation and treaties. Irrespective of the existence of copyright, you acknowledge that DATASCOPE is the proprietor of all the Content (except where a third party is indicated as the proprietor), whether it constitutes confidential information or not, and that you have no right, title or interest in any such Content.
6.1 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Site, whether in whole or in part, or any content displayed on the Site; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to these Terms. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copied thereof.
7. Unsubscribe: Should you wish to unsubscribe from any mailing lists or registrations, you may follow the “unsubscribe” instructions as provided in email communications, and/or contact the webmaster of the appropriate site at adminna@datascopewms.com
8. Cookies and Log Files: Cookies may be used on some pages of our website. “Cookies” are small text files placed on your hard drive that allow us to provide a more customizable website experience. If you are concerned about cookies, most browsers permit you to decline cookies. In most cases, it is possible to disable cookies and still fully navigate our website, however some other website functionality may be affected. In order to properly maintain our Site, we may anonymously log information on our operational systems, and identify categories of visitors by items such as domains and browser types.
9. Privacy Policy: DATASCOPE is the owner of information collected on this site. DATASCOPE will not sell or rent this information to any individual or corporate entity, nor will it share this information with any third party outside this organization other than as necessary to fulfill your request. DATASCOPE may contact you in the future to provide information regarding scheduling updates, specials, new instructions or services, or changes to this policy.
10. Your Account: Certain features or services offered on or through this Site may require you to open an account (including setting up a username and password). You are entirely responsible for maintaining the confidentiality of the information you hold for your account, including your password, and for any and all activity that occurs under your account as a result of your failing to keep this information secure and confidential. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You agree to notify DATASCOPE immediately of any unauthorized use of your account or password, or any other breach of security. You may be held liable for losses incurred by DATASCOPE or any other user of or visitor to the Site due to someone else using your username, password, or account as a result of your failing to keep your account information secure and confidential.
You may not use anyone else’s username, password, or account at any time without the express permission and consent of the holder of that username, password, or account. DATASCOPE cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations. DATASCOPE may suspend or terminate your account in accordance with the terms herein.
11. Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL DATASCOPE AND/OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF DATASCOPE’s SITE, WITH THE DELAY OR INABILITY TO USE DATASCOPE’s SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH DATASCOPE’s SITE, OR OTHERWISE ARISING OUT OF THE USE OF DATASCOPE’s SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF DATASCOPE OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF DATASCOPE’s SITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING DATASCOPE’s SITE. ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY U.S. DOLLARS ($50.00 USD). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OUR RELATING TO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
12. Indemnity: You agree that no joint venture, partnership, employment, or agency relationship exists between you and DATASCOPE as a result of this agreement or use of DATASCOPE’s Site. You agree to indemnify and hold DATASCOPE (and its parents, subsidiaries, affiliates, officers and employees) harmless from any claim, demand, or damage, including costs and reasonable attorneys’ fees, asserted by any third party due to or arising out of (a) your use of the Site, (b) your violation of these Terms, (c) your violation of applicable laws or regulations or (d) your user content. DATASCOPE reserves the right, at your expense, to assume the exclusive defense and control of any matters for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of DATASCOPE . DATASCOPE will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
13. Violation of These Terms of Use: If you breach any of these Terms; DATASCOPE , in its sole discretion, reserves the right to disclose any personal information about you or your use of DATASCOPE’s Site, including its contents, without your prior permission if DATASCOPE has a good faith belief that such action is necessary to: (1) conform to legal requirements or comply with legal process; (2) protect and defend the rights or property of DATASCOPE or its affiliated companies; (3) enforce the Terms of use; or (4) act to protect the interests of its members or others.
14. Governing Law and Venue: Claims for enforcement, breach or violation of duties or rights under this agreement shall be adjudicated under the laws of the State of North Carolina, without reference to conflict of laws principles. All other claims, including without limitation claims under or for violation of state consumer protection laws, unfair competition laws, and in tort, shall be adjudicated under the law of your state of residence. You hereby irrevocably consent to the exclusive jurisdiction and venue of courts in Mecklenburg County, North Carolina, U.S.A. in all disputes arising out of or relating to the use of DATASCOPE’s Site.
15. Arbitration: Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- (a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- (b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: 4427 Wilgrove Mint Hill Road, Charlotte, NC 28227. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- (c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- (d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- (e) Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
- (f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
- (g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- (h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- (i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- (j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- (k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- (l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
- (m) Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
- (n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- (o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- (p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Mecklenburg County, North Carolina, for such purpose.
16. General Provisions: DATASCOPE’s performance of this agreement is subject to existing laws and legal process, and nothing contained in these Terms is in derogation of DATASCOPE’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of DATASCOPE’s Site or information provided to or gathered by DATASCOPE with respect to such use. Your relationship to DATASCOPE is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without DATASCOPE’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. DATASCOPE may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding on assignees.
17. Severability: These Terms constitute the entire agreement between you and us regarding the use of our Site. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
18. Term and Termination: Subject to this Section, these Terms will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site (including your account) at any time for any reason at our sole discretion, including for any use of the Site in violation of these Terms. Upon termination of your rights under these Terms, your account and right to access and use the Site will terminate immediately. You understand that any termination of your account may involve deletion of your user content associated with your account from our live database. DATASCOPE will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your account or deletion of your user content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: 1, 4, 5, 11, 12, 14, 15, 16, 18, 19.
19. Copyright / Trademark Information. Copyright © 2017, 2018, 2019 DATASCOPE North America, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
20. Contact and Disclosures: If you have any questions about these Terms of Use, the practices of this Site, or your dealings with this Site, you can contact us at Benj@datascopewms.com. DATASCOPE is located at the address in Section 15. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
DATASCOPE NORTH AMERICA, INC.
WMS SOFTWARE LICENSE AGREEMENT TERMS AND CONDITIONS
By installing or using the licensed software from DATASCOPE North America, Inc. (“DATASCOPE ” or “Licensor”), the individual who is acting on behalf of him / herself (“Individual Customer”) or the individual who is acting on behalf of a company, governmental agency, or other entity (collectively referred to as “Customer” or “Licensee”) is agreeing to be bound by this software license agreement (“Agreement”). A copy of the Agreement is also available for download on DATASCOPE’s Website.
If Customer does not agree to the terms of this Agreement, Customer may not install, copy, or use the licensed software.
The effective date for this Agreement is the day the Customer installs the Software.
ARTICLE 1. DEFINITIONS
Whenever used in this Agreement, any schedules, exhibits, or addenda to this Agreement between DATASCOPE and Customer, the following terms shall have the meanings assigned below. Other capitalized terms used in this Agreement are defined in the context in which they are used.
“Annual License Fee” or “ALF” means the annual license fee paid to DATASCOPE in advance of Customer’s use of the Software for a consecutive twelve (12) month period.
“Authorized User,” notwithstanding any attached schedules, means: (a) Customer, including its employees, authorized agents and representatives. The number of Authorized User(s) for the Customer is recorded in the Schedule of Modules.
“Confidential Information” means any information that a disclosing party treats in a confidential manner and that is marked “Confidential Information” prior to disclosure to the other party. Confidential information does not include information which: (a) is already public or becomes public through no breach of the confidentiality obligations herein; (b) is disclosed by the party that has received Confidential Information (the “Receiving Party”) with the prior written approval of the other party; (c) was known by the Receiving Party at the time of disclosure; (d) was developed independently by the Receiving Party without use of the Confidential Information; (e) becomes known to the Receiving Party from a source other than the disclosing party through lawful means; (f) is disclosed by the disclosing party to others without confidentiality obligations; or (g) is required by law to be disclosed.
“DATASCOPE Website” means www.datascopewms.com
“Documentation” means, collectively: (a) all materials published or otherwise made available to Customer by DATASCOPE that relate to the functional, operational and / or performance capabilities of the Software; (b) all user, operator, system administration, technical, support and other manuals and all other materials published or otherwise made available by DATASCOPE that describe the functional, operational and / or performance capabilities of the Software; (c) any Requests for Information and / or Responses for Proposals (or documents to similar effect) issued by Customer, and the responses thereto from DATASCOPE , and any document which purports to update or revise any of the foregoing; and (d) the results of any DATASCOPE’s presentation or concept demonstration or similar type presentation or tests provided by DATASCOPE to Customer.
“Enhancements” means, with respect to the Software any improvement, modification, upgrade, enhancement, fix, patch, revision, extension, add-on, derivative work, customization, translation, abridgement, complication, or the like made to the Software by Licensor, either directly or by third parties on its behalf.
“Initial License Fee” or “ILF” means the initial license fee payable to DATASCOPE upon Customer’s first receipt of the right to use the Software.
“Intellectual Property Rights” includes without limitation all right, title and interest in and to all (a) Patent and all filed, pending, or potential applications for Patent, including any reissue, reexamination, division, continuation, or continuation-in-part applications throughout the world now or hereafter filed; (b) trade secret rights and equivalent rights arising under the common law, state law, federal law, and laws of foreign countries; (c) copyrights, other literary property or authors rights, whether or not protected by copyright or as mask work, under common law, state law, federal law, and laws of foreign countries; and (d) proprietary indicia, trademarks, trade names, symbols, logos, and / or brand names under common law, state law, federal law, and laws of foreign countries.
“Licensee Parties” means the Licensee’s permitted sub licenses, and the personnel of the Licensee’s sub licenses.
“Personnel Contact” means the individual who shall serve as each party’s point of contact with the other party’s personnel as provided in this Agreement.
“Registration Number” or “Registration Key” means, collectively, the specific serial number, code, and/or authorization for each copy of the Licensed Software issued by DATASCOPE to Customer.
“Schedule of Modules” means the document of the same title, which is initialed by both the Customer and DATASCOPE and records the details, number of Authorized User(s), and term of the Software being licensed to Customer.
“Signature Schedule” means the document of the same title, which is signed by both the Customer and DATASCOPE and lists Customer’s details and selected Software.
“Software” means the software or computer program (in object code only), described on the WMS Software License Agreement and Signature Schedule existing as of the Effective Date, and as listed in the Schedule of Modules that provide the functionality and/or produce the results described in the Documentation. It includes, without limitation, documentation for the use of such Software, all interfaces, all Enhancements thereto, and all Third-Party Software, including open source software.
“Software License Agreement” or “SLA” means this Agreement, the Signature Schedule and the Schedule of Modules attached hereto, inclusive of all schedules, exhibits, attachments, addenda and other documents incorporated by reference.
“Source Code” means computer Software in the form of source statements for the Software, including without limitation, all Software in the form of electronic and printed human-readable, mnemonic or English-like program listings.
“Support and Maintenance Services” means the technical support, error correction services and support, and Enhancements (if purchased or agreed to by Customer) and provided by DATASCOPE to Customer in order to use, maintain and enhance the Software provided by DATASCOPE to Customer.
“Third Party” means any persons, corporations and entities other than DATASCOPE, Customer or any of their employees, contractors or agents.
“Third Party Software” means any Software provided by DATASCOPE to Customer that DATASCOPE licensed from a Third Party and is to be delivered by DATASCOPE to Customer in connection with the Software.
“Update” means a revision to the Licensed Software or patch that improves the functionality of the Licensed Software, and may contain new features or enhancements, which is not an Upgrade.
“Upgrade” means a subsequent version of the Licensed Software that DATASCOPE designates as a new release and makes generally commercially available or a different flavor and the Licensed Software that DATASCOPE makes generally commercially available.
ARTICLE 2. LICENSE
2.1 Grant of License. Subject to the terms, conditions and limitations of this Agreement and only during the Term (as defined in Article 3), DATASCOPE shall issue Customer a License and Registration Number via email, fax, postal mail, or courier (e. g. FedEx, UPS) that sets forth the specific Licensed Software, the specific number of Concurrent Authorized Users for Customer, and the Registration Number associated with the Licensed Software. The License and Registration Key is hereby incorporated by reference into this Agreement. Certain of the licenses in Article 2 permit use by Authorized Users of Customer and the Customer is responsible for compliance of all such Authorized Users with the Agreement and shall be liable for the breach of the terms of this Agreement by such Authorized Users. DATASCOPE grants to Customer a non-exclusive, non-assignable, non-transferable right and license for Customer and its Authorized Users to use the Software and Documentation to conduct Customer business at any and all locations where Customer business may be conducted, and subject to the following conditions listed in this section.
2.2 DATASCOPE shall issue to Customer a License and Registration Number for each copy of the Licensed Software. Customer is entirely responsible for any and all activities that occur under Customer’s account and all charges incurred from use of the copy of the Licensed Software assigned by serial number to Customer (e. g., maintenance, support, or license or subscription fee charges). The Licensed Software shall be deemed accepted upon delivery of the Registration Number to Customer by DATASCOPE or an Authorized Reseller.
2.3 Reservation of Rights. Except for the license rights granted in Section 2.1 and 2.2 above, neither the License nor this Agreement grants to the Customer or any Licensee party any right, title or interest, including without limitations, any security interest, in any of the Software or any other property of Licensor or its affiliates. DATASCOPE reserves the right to exercise any rights in the Software, including the right to license, sublicense or otherwise exploit or dispose of such rights to any party and in any manner, without restriction. Licensee agrees that all proprietary right, title and interest in the Software shall remain with DATASCOPE , and that all uses of the Software by the Customer shall not create any interest or right, express or implied, in the Software in the Licensee except as expressly set forth in this Agreement, and that the Licensee does not and will not assert any claim to any ownership thereof, except the License as expressly set forth in this Agreement. If, by operation of the law of any jurisdiction, or otherwise, Licensee is deemed to or appears to own any property rights in the Software other than the License as set forth herein, Licensee hereby assigns all right, title and interest in such property rights to DATASCOPE , and Licensee shall, at DATASCOPE’s request, execute any and all documents necessary to confirm or otherwise establish DATASCOPE’s rights therein.
2.4 Notices. All copies of the Software shall bear such copyright notices or other legal notices or disclaimers which DATASCOPE from time to time may prescribe, and all such notices shall be printed legibly. Licensee shall not remove or alter any such notices or disclaimers that may be included in or on copies of the Software as provided to Licensee.
2.5 Compliance with Restrictions. The Licensee shall, and shall require each Licensee Party, to comply with the restrictions contained in this Agreement regarding the License and the use and protection of the Software.
2.6 Customer is prohibited from using the Software to provide training, marketing, consulting or any other commercial services related to the Software. Customer is prohibited from hosting the Software, in whole or in part, on behalf of a Third Party or otherwise granting unauthorized users access to the Software via the internet or through any other means.
2.7 Absent prior written authorization of DATASCOPE , the Customer shall not exceed its number of Authorized Users to the Software. If DATASCOPE determines that Customer has more users than Customer has paid for, Customer shall immediately pay DATASCOPE the applicable additional fees.
2.8 Backup Copy and Procedure. The Customer may make a reasonable number of backup copies of the Software for its own authorized use, however Customer must secure any and all backup copies within its control and clearly mark any backup copy with DATASCOPE’s proprietary notices. In the event Customer makes a backup copy, the Customer is limited to the use of only one copy of the Software at any given time.
2.8.1. If the Customer’s backup procedure should require a second live server to run concurrent with its primary server (and such procedure is necessary for Customer’s internal business purposes), then the Customer shall be entitled to create a second Work Directory on the backup server provided that Customer limits its use to a single Work Directory at any given time. In such an event, Customer is further required to inform DATASCOPE of the physical location of the backup server and grant DATASCOPE access to said backup server pursuant to Section 2.9 herein.
2.9 Records and Reports; Inspection and Audit Rights. Customer shall create, keep and maintain, during the Term (as defined in Article 3), and for three (3) years thereafter, accurate books and records containing any and all information necessary to validate the performance of Customer’s obligations hereunder, including all Software License Agreements, Signature Schedule, and/or Schedule of Modules (if signed by the authorized users) (collectively, “Records”). Throughout the Term of this Agreement and during the three (3) year period thereafter, the Customer shall furnish to DATASCOPE (no more frequently than twice per calendar year) all Records reasonably requested by DATASCOPE , upon seven (7) days prior notice, in order to conduct and audit with respect to verifying performance of Customer’s obligations hereunder. Throughout the Term and for three (3) years thereafter, DATASCOPE shall have the irrevocable right once during each calendar year to enter all areas of any of Customer’s facilities where any Records or Software is used, hosted or stored (“Facilities”) and have access to any and all Records of Customer during normal business hours and upon five (5) days’ prior notice to (a) inspect Customer’s security systems and verify Customer’s compliance with security-related standards, and (b) inspect for compliance with Customer’s other obligations under this Agreement. Customer shall provide DATASCOPE with all reasonable cooperation in connection with such inspections and audits.
2.10 Additional Authorized Users and/or Related Licensee Parties (“AAU/RLP”). Customer requests for additional Authorized Users and/or access rights for related Licensee Parties to use the Software must be submitted in writing to DATASCOPE and must include the following: (a) description of relationship between Customer and the AAU/RLP; (b) Registered name and address of AAU/RLP (and, if a company, provide the name of the state or province where the company is organized or incorporated); (c) Name, title, and contact information of individual authorized to enter into contracts on behalf of the AAU/RLP; and (d) any other information requested by DATASCOPE to reasonably identify the AAU/RLP. DATASCOPE reserves the right to review such requests on a case-by-case basis, and may elect to approve a request and issue a Registration Number for the AAU/RLP. Should DATASCOPE approve Customer’s request, the AAU/RLP will also be regarded as the Customer for purposes of this Agreement and subject to the terms and conditions herein.
ARTICLE 3. TERM AND TERMINATION
3.1 Term. Except for Customers with a fixed-term License Period, this Agreement shall commence on the Effective Date and shall continue in effect until terminated as set forth below. In the case of Additional Authorized Users or Related Licensee Parties (AAU/RLP) who are authorized and added after the Initial License Fee payment, the term of their usage of the Licensed Software shall be coterminous with the preexisting then-current term. If Customer purchases an Upgrade, the term of the Agreement shall be the specific term set forth in the new License and Registration Number issued for the Upgrade.
3.2 Termination. Customer may terminate this Agreement by giving written notice of its intent to terminate at least thirty (30) days before the commencement of the next Annual License Fee period. DATASCOPE may terminate this Agreement immediately without notice if Customer breaches any term of this Agreement, including, without limitation, breaching the scope of the license granted or confidentiality obligations under this Agreement.
3.3 Termination by DATASCOPE for Bankruptcy or Change of Control. DATASCOPE shall have the right to terminate this Agreement immediately if Customer becomes insolvent, or is unable to pay its debts as due, or enters into or files (or has filed or commenced against it) a petition, arrangement, action or other proceeding seeking relief or protection under the bankruptcy or similar laws of the United States, Canada, or other country as applicable. DATASCOPE shall have the right to terminate this Agreement immediately if Customer is acquired by a third party, whether by means of an acquisition of substantially all of Customer’s assets, by merger, stock purchase, reorganization or other transaction or series of transactions.
3.4 Termination for Infringement. In the event of a claim of intellectual property infringement by any third party relating to the Software, Licensor shall have the right, at its option, to (i) immediately terminate this Agreement and the rights granted hereunder, (ii) obtain such rights as are sufficient to make the Software non-infringing or (iii) substitute the Software with adequate other non-infringing software.
3.5 Effect of Expiration or Termination. Upon expiration or termination of this Agreement, (i) the rights and licenses granted to Customer pursuant to this Agreement shall automatically and immediately terminate and (ii) Customer shall immediately cease using the Licensed Software, and cause each Licensee Party to immediately discontinue use of all Licensed Software. In addition, for a fixed-term License Period, upon expiration of the License Period, the Registration Key will expire and the Licensed Software will cease to function. Furthermore, if DATASCOPE so requests, Customer will delete or destroy any copies of the Software under Customer’s control and provide DATASCOPE with a certificate confirming the destruction of the copies. The remedies of this clause are without prejudice to any other rights or remedies which are available to DATASCOPE .
ARTICLE 4. FEES AND PAYMENT TERMS
4.1 Payment terms and conditions for the Licensed Software are specified on DATASCOPE invoice(s) and/or in the specific Schedule of Modules provided by DATASCOPE and existing as of the Effective Date. DATASCOPE will invoice Customer for payment monthly or quarterly in advance unless another payment option is specified in the order. Payment of undisputed invoices is due within thirty (30) days from the receipt date of Licensor’s invoice. All fees paid to DATASCOPE are non-refundable except as explicitly permitted from time to time on DATASCOPE’s Website. DATASCOPE may terminate this Agreement and invalidate Customer’s Registration Number if the billing or contact information is false, fraudulent, or invalid. Customer will pay all bank charges, taxes, duties, levies and other costs and commissions associated with any wire transfer or other electronic means of payment; provided, that Customer provides evidence that it has paid the same. Any overdue payments will be subject to a late payment charge of two and one-half percent (2.5%) per month or the maximum rate allowed by applicable law, whichever is less. Unless Customer provides DATASCOPE with a tax exemption certificate, Customer is solely responsible for paying all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties, and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial, or local governmental entity or any non-U.S. Government entity on the transactions contemplated by this Agreement, excluding taxes based upon DATASCOPE’s net income. Customer is prohibited from withholding or delaying any payment of any amount(s) due to DATASCOPE under this Agreement, and is further prohibited from seeking any set-off for any claim which Customer may or may not have against DATASCOPE .
4.2 Additional Authorized Users / Related Licensee Parties Fee. During the license period, Customer shall pay to DATASCOPE the then-current rate for any licenses for concurrent additional Authorized Users and/or Related Licensee Parties. This fee shall be charged or invoiced to Customer on the date such additional Authorized Users / Related Licensee Parties are added to the Customer’s account. If DATASCOPE determines that Customer has more concurrent Authorized Users than Customer has paid for, Customer shall immediately pay DATASCOPE the applicable additional fees.
4.3 DATASCOPE reserves the right to increase the Annual License Fee at the beginning of each ALF period, however such increase shall be limited to (i) ten percent (10%) of DATASCOPE’s then-current selling price for the Software, or (ii) a percentage equal to the weighted Consumer Price Index for the previous twelve (12) months, whichever is greater.
ARTICLE 5. WARRANTIES, REPRESENTATIONS AND COVENANTS
5.1 Software Warranty. DATASCOPE represents and warrants that the Software provided under this Agreement shall function substantially in accordance with the Documentation and produce results substantially in accordance with the Documentation for a period of sixty (60) days from the date of delivery of the Software to the Customer. If the Software fails to conform with this warranty, Customer may return the Software and all copies for DATASCOPE’s inspection and review, and must also provide evidence to demonstrate the Software does not function substantially in accordance with the Documentation. If DATASCOPE determines the Software fails to conform to such warranty, DATASCOPE may, at its sole discretion, either replace the Software or terminate the Agreement and provide to Customer a refund of all monies paid to DATASCOPE with respect to the Software. This warranty is only applicable for the initial delivery of the Software and does not apply to any Updates, Upgrades or revisions.
5.2 Intellectual Property Warranty. DATASCOPE represents, warrants and agrees that: DATASCOPE has all Intellectual Property Rights necessary to license the Software to Customer in accordance with the terms of this Agreement; DATASCOPE is the sole owner or is a valid Customer of the Software and has secured all necessary licenses, consents, and authorizations with respect to the use of the Software to the full extent contemplated herein, including, but not limited to: all Source Code, text, pictures, audio, video, logos and copy contained therein; the Software does not and shall not infringe upon any patent, copyrights, trademark or other proprietary right or violate any trade secret or other contractual right of any Third Party; and there is currently no actual or threatened suit against DATASCOPE by any Third Party based on an alleged violation of such right. This warranty shall survive the expiration or termination of this Agreement.
5.3 Warranty of Authority. Each party represents and warrants that it has the right to enter into this Agreement. DATASCOPE represents and warrants that it has the unrestricted right to license the Software, and that it has the financial viability to fulfill its obligations under this Agreement. DATASCOPE represents, warrants and agrees that Software shall be free and clear of all liens, claims, encumbrances or demands of Third Parties. DATASCOPE represents and warrants that it has no knowledge of any threatened or pending litigation, dispute or controversy arising from or related to the Software. This warranty shall survive the expiration or termination of this Agreement.
5.4 Compliance with Laws Warranty. DATASCOPE represents and warrants to Customer that it will comply with all applicable laws, including its tax responsibilities, pertaining to this Agreement and its provision of the Software to Customer.
5.5 THE WARRANTIES SET FORTH ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5.6 The warranties listed in this Section DO NOT apply to any Beta software, any software made available for testing or demonstration purposes, any temporary software modules or any software for which DATASCOPE does not receive a license fee. ALL SUCH SOFTWARE PRODUCTS ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “WHERE IS” BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. DATASCOPE EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT TO THE DATASCOPE ENHANCEMENTS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
ARTICLE 6. LIMITATION OF LIABILITY
6.1 Consequential Damages Waiver. IN NO EVENT SHALL DATASCOPE HAVE ANY LIABILITY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THE REPRESENTATIVE OF DATASCOPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
6.2 Limitation of Liability. IN NO EVENT SHALL DATASCOPE’s LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED: (I) IF THE LICENSED SOFTWARE IS LICENSED FROM DATASCOPE DIRECTLY, THE LICENSE FEE PAID BY CUSTOMER TO DATASCOPE FOR THE LICENSED SOFTWARE, OR (II) IF THE LICENSED SOFTWARE IS LICENSED THROUGH AN AUTHORIZED RESELLER, AS APPLICABLE.
6.3 Limitation of Remedies. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
ARTICLE 7. TITLE AND OWNERSHIP
7.1 With this Licensing Agreement, Customer acquires the right to use the Software but does not acquire any right of ownership or any other rights to the Software itself. Customer acknowledges that DATASCOPE holds all right, title and interest in any copyrights, patents, trade secrets and any other Intellectual Property Rights in the Software. Nothing in this Agreement shall be construed to convey any title or ownership rights in the Software to Customer.
7.2 All data created and / or processed by the Software is and shall remain the property of Customer and shall in no way become attached to the Software, nor shall DATASCOPE have any rights in or to the data of Customer.
7.3 Any documents, forms, compilations and / or spreadsheets that are generated from the utilization of the functionality of the Software are not the intellectual property of DATASCOPE , and can be used by Customer in its ordinary course of business, including but not limited to Customer sharing such documents with Third Parties.
7.4 Customer must currently have a valid license in order to use any upgraded or updated subsequent versions to the Software. All upgrades and updates are provided to the Customer on a license-exchange basis. Customer agrees that its use of an upgraded- or updated-version will result in Customer’s waiver of the right to use any previous version of the Software.
ARTICLE 8. GENERAL RESTRICTIONS
8.1 Customer understands and agrees that, except as permitted by this Agreement, it may not: (a) sell, assign, lease, license, sub-license or otherwise distribute the Software or Documentation; (b) copy, reproduce, or distribute the Software (whether in whole or in part); (c) use the Software for the purposes of providing commercial data processing services to Third Parties, such as commercial use in a service bureau, timesharing, remote batch, or other similar commercial operation; (d) create or attempt to create, or permit others to create or attempt to create, by reserve engineering or other process, the Software; and (e) export, re-export, divert or transfer the Software or Documentation to any country that is embargoed by U.S. Executive Order.
8.2 Customer further understands and agrees that, except as permitted by this Agreement, it may not attempt to ascertain the Source Code of the Software. Neither the Software nor its Documentation may be altered in any way, including without limitation, being extended, changed for use on other systems, or translated into other languages, unless said alteration is expressly permitted by applicable law. Customer may not create derivative works of the Software.
8.3 Customer agrees to use the Software in accordance with all applicable laws and regulations.
8.4 Customer agrees to provide true, accurate, up-to-date and complete information about himself / herself as required by DATASCOPE (information also referred to as “Registration Data”). DATASCOPE is entitled to use and disclose the information contained in the Registration Data as necessary to comply with applicable laws, legal requirements, or to otherwise fulfill its obligations under this Agreement. Customer further agrees that DATASCOPE or its agent may use the Registration Data to provide Customer with information regarding updates and new releases of the Software.
8.5 All Enhancements shall become part of the Software and subject to all terms and provisions of this Agreement. THE DATASCOPE ENHANCEMENTS ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “WHERE IS” BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. DATASCOPE EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT TO THE DATASCOPE ENHANCEMENTS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
8.6 Title to all Enhancements shall remain with DATASCOPE .
8.7 Except as otherwise provided in a signed addendum to this Agreement, nothing herein shall obligate DATASCOPE to enhance the Software in any particular respect or on any particular date. The decision as to whether and / or when, to enhance the Software will be within DATASCOPE’s discretion.
ARTICLE 9. CONFIDENTIALITY
9.1 Customer and DATASCOPE agree to maintain the confidentiality of any confidential or proprietary information of one party (the “disclosing party”) received by the other party (the “receiving party”) during the term of, or prior to entering into, this Agreement that the receiving party should know is considered confidential or proprietary by the disclosing party based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information (“Confidential Information”). The Licensed Software is copyrighted and shall be deemed DATASCOPE’s Confidential Information. The Documentation is copyrighted material of DATASCOPE . This section shall not apply to any information that is or becomes publicly available through no breach of this Agreement by the receiving party or is independently developed by the receiving party without access to or use of the Confidential Information of the disclosing party. The foregoing confidentiality obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to an order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable the other party to seek a protective order or otherwise limit such disclosure. The receiving party of any Confidential Information of the disclosing party agrees not to use the disclosing party’s Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party’s Confidential Information with no less than reasonable care. All the disclosing party’s information remains the property of the disclosing party.
ARTICLE 10. INDEMNIFICATION
10.1 Indemnification of DATASCOPE . Licensee shall protect, defend, indemnify and hold DATASCOPE , its parents, subsidiaries, affiliates, successors, assigns, and the officers, directors, employees and other personnel, shareholders and agents of each of them, harmless from and against any and all liabilities, damages, judgments, penalties, losses, costs, expenses (including reasonable attorneys’ fees), claims, suits, or demands relating to or arising from (i) any breach by Licensee of any of its representations, warranties or covenants hereunder; or (ii) any breach by any Licensee Party of this Agreement; or (iii) the use or distribution by Licensee or any Licensee Party of any of the Software, except to the extent such claims are caused by DATASCOPE’s negligence.
10.2 Claims Procedure. If a claim for indemnification is to be made by a Party (the “Indemnified Party”) against the other Party (the “Indemnifying Party”), the Indemnified Party will give written notice (a “Claim Notice”) to the Indemnifying Party as soon as practicable after the Indemnifying Party becomes aware of any fact, condition or event that may give rise to indemnification under this Article 10. If any lawsuit or enforcement action is filed against the Indemnified Party, written notice thereof will be given to the Indemnifying Party as promptly as practicable. The failure of the Indemnified Party to give timely notice hereunder for any purpose will not affect rights to indemnification hereunder, except to the extent such failure materially and adversely prejudices the Indemnifying Party. No lawsuit or action will be compromised or settled without the written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed.
10.3 Defense of Claims. The Indemnified Party will have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of the lawsuit or action on behalf of and for the account and risk of the Indemnifying Party and the Indemnifying Party will, upon request of the Indemnified Party, promptly pay to the Indemnified Party the amount of any losses, including costs and expenses, resulting from the lawsuit or action; provided, however, that the lawsuit or action will not be compromised or settled without the written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. The Indemnified Party will keep the Indemnifying Party reasonably informed as to the progress of any such defense, compromise or settlement. The Indemnifying Party will be liable for any settlement of any action effected pursuant to and in accordance with this paragraph and for any final judgment (subject to any right of appeal) and the Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party from and against any losses by reason of the settlement or judgment.
10.4 Notice of Infringement. If the Licensee or any of Licensee’s personnel learns of any infringement, misuse or misappropriation of any Software, Licensee shall (and shall cause the other Licensee Parties to) promptly notify DATASCOPE thereof in writing.
ARTICLE 11. MISCELLANEOUS PROVISIONS
11.1 Notices. All notices, demands, or consents required or to be given under this Agreement shall be made in the English language and shall be sent by (i) registered or certified first-class mail, postage prepaid, (ii) recognized international courier service (e.g., Federal Express or United Parcel Service), or (iii) facsimile transmission confirmed by a letter sent by either first class mail or recognized international courier service, addressed to the party as set forth in Signature Schedule attached hereto. Any notice, demand or consent shall be deemed to have been given (i.e., effective) as follows: (i) if by registered or certified mail, at the time of receipt thereof or seven (7) days after the time of mailing, whichever is earlier, (ii) if by recognized courier service, at the time of receipt of same; and (iii) if by facsimile confirmed by a letter sent by registered or certified mail or recognized courier service not later than one business day thereafter, the next business day after the time of sending the facsimile. Any address or facsimile number, for the purposes of above, may be changed by notice given in the manner provided for hereinabove. Notices to DATASCOPE shall be in writing and addressed to DATASCOPE North America, Inc., 4427 Wilgrove Mint Hill Road, Charlotte, North Carolina 28227, USA.
11.2 Amendment. This Agreement may not be amended except in a writing executed by both Parties.
11.3 Waiver. No waiver shall be deemed effective under this Agreement unless in writing signed by the Party against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power or privilege hereunder, and no course of dealing among or between the Parties hereto, shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
11.4 No Assignment. Except for the right provided in Section 2.10, Licensee shall not, and shall not attempt to assign, delegate, sublicense or otherwise transfer the License or any rights or obligations under this Agreement, directly or indirectly, in whole or in part, to any other party without the express prior written consent of Licensor. Any purported assignment by Licensee or any Licensee Party in violation of this provision shall be void. The Parties agree that this Agreement is an executory contract governed by Section 365 of the United States Bankruptcy Code. In granting the License, Licensor has relied upon the particular skill and knowledge base of Licensee, intending to protect its valuable interests, including its intellectual property rights in the Software. Therefore, the Parties acknowledge and agree that, in a Licensee bankruptcy, this Agreement is of the type described by Section 365(c) (1) of the United States Bankruptcy Code and may not be assumed or assigned without the prior written consent of Licensor.
11.5 Successors and Assigns. Except as otherwise provided in this Agreement, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
11.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard to its choice of law and conflicts of law rules. This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.
11.7 Jurisdiction. The Parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with this Agreement shall be brought in the federal or state courts having subject matter jurisdiction over such actions in Mecklenburg County, North Carolina. Each of the Parties hereby irrevocably consents to the exclusive jurisdiction of such courts in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue in any such suit, action or proceeding in any such court or that any such suit, action or proceeding has been brought in an inconvenient forum.
11.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable in any jurisdiction, the remainder of this Agreement shall remain in full force and effect, and such holding shall not affect this Agreement or any provision hereof in any other jurisdiction. If any provision of this Agreement is so held to be illegal, invalid or unenforceable only in part or degree, that provision shall remain in full force and effect to the extent not held illegal, invalid or unenforceable.
11.9 Mutual Drafting. The Parties have mutually contributed to the drafting of this Agreement. Therefore, no provision of this Agreement shall be construed against any Party on the ground that it or its counsel drafted that provision.
11.10 Force Majeure. No failure or omission by a Party to carry out or observe any of the terms or conditions of this Agreement, except for a failure to timely pay any sums of money when due, shall give rise to any claim against the Party in question or be deemed a breach of this Agreement if such failure or omission arises from war, riot, natural disaster, Act of God, Internet failures or any other cause reasonably beyond control of that Party (a “Force Majeure”). If any Party is, wholly or in part, prevented from or hindered in carrying out or observing any of the terms or conditions of this Agreement as a result of a Force Majeure, then such Party shall give written notice to the other Party by the most expeditious means as soon as possible after the occurrence of the Force Majeure relied on, giving full particulars of the reason for such prevention or hindrance, and the Parties shall in good faith consult with each other and take necessary measures for the resolution of the affairs so prevented or hindered.
11.11 Exhibits and Schedules. The exhibits and schedules referred to in this Agreement hereby are incorporated herein and made part of this Agreement.
11.12 Attorneys’ Fees. If any action, suit or proceeding is commenced to establish, maintain, or enforce any right or remedy under this Agreement, the Party not prevailing therein shall pay, in addition to any damages or other award, all reasonable attorneys’ fees and litigation expenses incurred therein by the prevailing Party.
11.13 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, among the Parties with respect to the subject matter hereof.
11.14 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
DATASCOPE NORTH AMERICA, INC.
DATASCOPE FASTTRACK WMS SOFTWARE LICENSE AGREEMENT TERMS AND CONDITIONS
By installing, accessing, or using the licensed software from DATASCOPE North America, Inc. (“DATASCOPE” or “Licensor”), the individual who is acting on behalf of him/herself (“Individual Customer”) or the individual who is acting on behalf of a company, governmental agency, or other entity (collectively referred to as “Customer” or “Licensee”) is agreeing to be bound by this software license agreement (“Agreement”). A copy of the Agreement is also available for download on DATASCOPE’s Website.
If Customer does not agree to the terms of this Agreement, Customer may not install, copy, or use the Software.
The effective date for this Agreement is the day the Customer purchases the license for the Software.
ARTICLE 1. DEFINITIONS
Whenever used in this Agreement, any schedules, exhibits, or addenda to this Agreement between DATASCOPE and Customer, the following terms shall have the meanings assigned below. Other capitalized terms used in this Agreement are defined in the context in which they are used.
“Authorized Reseller” means an implementation partner certified by DATASCOPE and authorized by DATASCOPE to license the Software on DATASCOPE’s behalf.
“Authorized User,” notwithstanding any attached schedules, means: (a) Customer, including its employees, authorized agents, and representatives. The number of Authorized User(s) for the Customer is recorded in the Schedule of Modules.
“Confidential Information” means any information that a disclosing party treats in a confidential manner and that is marked “Confidential Information” prior to disclosure to the other party. Confidential information does not include information which: (a) is already public or becomes public through no breach of the confidentiality obligations herein; (b) is disclosed by the party that has received Confidential Information (the “Receiving Party”) with the prior written approval of the other party; (c) was known by the Receiving Party at the time of disclosure; (d) was developed independently by the Receiving Party without use of the Confidential Information; (e) becomes known to the Receiving Party from a source other than the Disclosing Party through lawful means; (f) is disclosed by the Disclosing Party to others without confidentiality obligations; or (g) is required by law to be disclosed.
“DATASCOPE Website” means www.datascopewms.com.
“Documentation” means, collectively: (a) all materials published or otherwise made available to Customer by DATASCOPE that relate to the functional, operational and/or performance capabilities of the Software; (b) all user, operator, system administration, technical, support and other manuals and all other materials published or otherwise made available by DATASCOPE that describe the functional, operational and/or performance capabilities of the Software; (c) any Requests for Information and/or Responses for Proposals (or documents to similar effect) issued by Customer, and the responses thereto from DATASCOPE , and any document which purports to update or revise any of the foregoing; and (d) the results of any DATASCOPE’s presentation or concept demonstration or similar type presentation or tests provided by DATASCOPE to Customer.
“Effective Date” means the subscription month after the Customer signs up for and purchases the license for the Software and the sign-up fee is paid.
“Enhancements” means, with respect to the Software any improvement, modification, upgrade, enhancement, fix, patch, revision, extension, add-on, derivative work, customization, translation, abridgement, complication, or the like made to the Software by Licensor, either directly or by third parties on its behalf.
“Intellectual Property Rights” includes without limitation all right, title and interest in and to all (a) all patents, all patent disclosures, all filed, pending, or potential applications for any patent, including any reissue, re-examination, division, continuation, or continuation-in-part applications throughout the world now or hereafter filed, and inventions; (b) trade secret rights and equivalent rights arising under the common law, state law, federal law, and laws of foreign countries; (c) copyrights, other literary property or authors rights, whether or not protected by copyright or as mask work, under common law, state law, federal law, and laws of foreign countries; (d) proprietary indicia, trademarks, trade names, symbols, logos, brand names, know-how and other confidential information under common law, state law, federal law, and laws of foreign countries; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection under common law, state law, federal law, and laws of foreign countries.
“Licensee Parties” means the Licensee’s permitted sub licenses, and the personnel of the Licensee’s sub licenses (individually, a “Licensee Party”).
“Personnel Contact” means the individual who shall serve as each party’s point of contact with the other party’s personnel as provided in this Agreement.
“Registration Number” or “Registration Key” means, collectively, the specific serial number, code, and/or authorization for each copy of the Software issued by DATASCOPE to Customer.
“Schedule of Modules” means the modules listed on the DATASCOPE Website as agreed to by the Customer as of the Effective Date.
“Software” means the software or computer program (in object code only), described on the DATASCOPE FASTTRACK WMS Software License Agreement existing as of the Effective Date, and as listed in the Schedule of Modules that provide the functionality and/or produce the results described in the Documentation. It includes, without limitation, documentation for the use of such Software, all interfaces, all Enhancements thereto, and all Third-Party Software, including open source software.
“Software License Agreement” or “SLA” means this Agreement and the Schedule of Modules, inclusive of all schedules, exhibits, attachments, addenda and other documents incorporated by reference.
“Source Code” means computer Software in the form of source statements for the Software, including without limitation, all Software in the form of electronic and printed human-readable, mnemonic or English-like program listings.
“Support and Maintenance Services” means the technical support, error correction services and support, and Enhancements (if purchased or agreed to by Customer) provided by DATASCOPE to Customer in order to use, maintain, and enhance the Software provided by DATASCOPE to Customer.
“Third Party” means any persons, corporations, and entities other than DATASCOPE, Customer or any of their employees, contractors, or agents.
“Third Party Software” means any Software provided by DATASCOPE to Customer that DATASCOPE licensed from a Third Party and is to be delivered by DATASCOPE to Customer in connection with the Software.
“Update” means a revision to the Software or patch that improves the functionality of the Software, and may contain new features or enhancements, which is not an Upgrade.
“Upgrade” means a subsequent version of the Software that DATASCOPE designates as a new release and makes generally commercially available or a different flavor and the Software that DATASCOPE makes generally commercially available.
ARTICLE 2. LICENSE
2.1 Grant of License. Subject to the terms, conditions, and limitations of this Agreement and only during the Term (as defined in Article 3), DATASCOPE shall issue Customer a License and Registration Number via email, fax, postal mail, or courier (e. g. FedEx, UPS) that sets forth the specific Software, the specific number of concurrent Authorized Users for Customer, and the Registration Number associated with the Software. The license and Registration Key are hereby incorporated by reference into this Agreement. Certain of the licenses in Article 2 permit use by Authorized Users of Customer and the Customer is responsible for compliance of all such Authorized Users with the Agreement and shall be liable for the breach of the terms of this Agreement by such Authorized Users. DATASCOPE grants to Customer a non-exclusive, non-assignable, non-transferable right and license for Customer and its Authorized Users to use the Software and Documentation to conduct Customer business at any and all locations where Customer business may be conducted, and subject to the following conditions listed in this section.
2.2 DATASCOPE shall issue to Customer a license and Registration Number for each copy of the Software. Customer is entirely responsible for any and all activities that occur under Customer’s account and all charges incurred from use of the copy of the Software assigned by serial number to Customer (e. g., maintenance, support, or license or subscription fee charges). The Software shall be deemed accepted upon delivery of the Registration Number to Customer by DATASCOPE or an Authorized Reseller.
2.3 Reservation of Rights. Except for the license rights granted in Section 2.1 and 2.2 above, neither the license granted by DATASCOPE to Customer under this Agreement nor this Software License Agreement grants to the Customer or any Licensee party any right, title or interest, including without limitations, any security interest, in any of the Software or any other property of Licensor or its affiliates. DATASCOPE reserves the right to exercise any rights in the Software, including the right to license, sublicense or otherwise exploit or dispose of such rights to any party and in any manner, without restriction. Licensee agrees that all proprietary right, title and interest in the Software shall remain with DATASCOPE and its licensors and service providers, as applicable, and that all uses of the Software by the Customer shall not create any interest or right, express or implied, in the Software in the Licensee except as expressly set forth in this Agreement, and that the Licensee does not and will not assert any claim to any ownership thereof, except the License as expressly set forth in this Agreement. If, by operation of the law of any jurisdiction, or otherwise, Licensee is deemed to or appears to own any property rights in the Software other than the License as set forth herein, Licensee hereby assigns all right, title and interest in such property rights to DATASCOPE and its licensors and service providers, as applicable, and Licensee shall, at DATASCOPE’s request, execute any and all documents necessary to confirm or otherwise establish the rights of DATASCOPE or its licensors and service providers, as applicable, therein.
2.4 Notices. All copies of the Software shall bear such copyright notices or other legal notices or disclaimers which DATASCOPE from time to time may prescribe, and all such notices shall be printed legibly. Licensee shall not remove or alter any such notices or disclaimers that may be included in or on copies of the Software as provided to Licensee.
2.5 Compliance with Restrictions. The Licensee shall, and shall require each Licensee Party, to comply with the restrictions contained in this Agreement regarding the License and the use and protection of the Software.
2.6 Customer is prohibited from using the Software to provide training, marketing, consulting or any other commercial services related to the Software. Customer is prohibited from hosting the Software, in whole or in part, on behalf of a Third Party or otherwise granting unauthorized users access to the Software via the internet or through any other means.
2.7 Occasionally, Customer may change its number of Authorized Users and/or add more modules. However, increasing the number of Authorized Users and/or adding additional modules not listed in the schedule of module, will move Customer from this SLA to a DATASCOPE PREMIUM WMS software license agreement, which may change the license fees owed by Customer to DATASCOPE, effective the month following the change in Authorized Users or modules used. Customer should discuss possible changes with the local DATASCOPE Solution Provider (DSP) before making any changes to its number of Authorized Users or modules used. Customer acknowledges and agrees that increasing its number of Authorized Users to more than fifty (50) and/or adding additional modules not included in FASTTRACK WMS schedule of modules will move Customer to the DATASCOPE PREMIUM WMS version of the Software. Customer acknowledges and agrees that in the event it has more than fifty (50) Authorized Users and/or additional modules, its license under this Agreement will terminate at the end of the month of change, and a new DATASCOPE PREMIUM WMS software license agreement must be signed.
2.8 Backup Copy and Procedure. The Customer may make a reasonable number of backup copies of the Software for its own authorized use, however Customer must secure any and all backup copies within its control and clearly mark any backup copy with DATASCOPE’s proprietary notices. In the event Customer makes a backup copy, the Customer is limited to the use of only one copy of the Software at any given time.
2.8.1. If the Customer’s backup procedure should require a second live server to run concurrent with its primary server (and such procedure is necessary for Customer’s internal business purposes), then the Customer shall be entitled to create a second work directory on the backup server provided that Customer limits its use to a single work directory at any given time. In such an event, Customer is further required to inform DATASCOPE of the physical location of the backup server and grant DATASCOPE access to said backup server pursuant to Section 2.9 herein.
2.9 Records and Reports; Inspection and Audit Rights. Customer shall create, keep and maintain, during the Term (as defined in Article 3), and for three (3) years thereafter, accurate books and records containing any and all information necessary to validate the performance of Customer’s obligations hereunder, including all Software License Agreements and/or Schedule of Modules (if signed by the authorized users) (collectively, “Records”). Throughout the Term of this Agreement and during the three (3) year period thereafter, the Customer shall furnish to DATASCOPE (no more frequently than twice per calendar year) all Records reasonably requested by DATASCOPE, upon seven (7) days prior notice, in order to conduct and audit with respect to verifying performance of Customer’s obligations hereunder. Throughout the Term and for three (3) years thereafter, DATASCOPE shall have the irrevocable right once during each calendar year to enter all areas of any of Customer’s facilities where any Records or Software is used, hosted or stored (“Facilities”) and have access to any and all Records of Customer during normal business hours and upon five (5) days’ prior notice to (a) inspect Customer’s security systems and verify Customer’s compliance with security-related standards, and (b) inspect for compliance with Customer’s other obligations under this Agreement. Customer shall provide DATASCOPE with all reasonable cooperation in connection with such inspections and audits.
ARTICLE 3. TERM AND TERMINATION
3.1 Term. Except for Customers with a fixed-term License Period, this Agreement shall commence on the Effective Date and shall continue in effect for an initial three (3) month period (the “Initial Term”). Customer may terminate this Agreement effective as of the last day of the Initial Term by providing notice to DATASCOPE. If Customer does not terminate, before the end of the Initial Term, the Agreement will continue in effect for an additional twelve (12) months (the “License Period”), unless terminated as set forth below. Thereafter, the Agreement will automatically renewal for additional twelve (12) month License Periods unless terminated as set forth below in this Agreement (the Initial Term, along with each License Period, the “Term”).
3.2 Termination. Customer may terminate this Agreement by giving written notice of its intent to terminate at least thirty (30) days before the commencement of the next License Period. DATASCOPE may terminate this Agreement immediately without notice if Customer breaches any term of this Agreement, including, without limitation, breaching the scope of the license granted or confidentiality obligations under this Agreement.
3.3 License Upgrade. As set out in Section 2.7 above, if Customer increases its number of Authorized Users to more than fifty (50), Customer will move to the DATASCOPE PREMIUM WMS version of the Software. Customer’s license under this Agreement will terminate and its use of the Software will be governed by the license found at [link to DATASCOPE PREMIUM WMS Software License Agreement Terms and Conditions].
3.4 Termination by DATASCOPE for Bankruptcy or Change of Control. DATASCOPE shall have the right to terminate this Agreement immediately if Customer becomes insolvent, or is unable to pay its debts as due, or enters into or files (or has filed or commenced against it) a petition, arrangement, action or other proceeding seeking relief or protection under the bankruptcy or similar laws of the United States, Canada, or other country as applicable. DATASCOPE shall have the right to terminate this Agreement immediately if Customer is acquired by a third party, whether by means of an acquisition of substantially all of Customer’s assets, by merger, stock purchase, reorganization or other transaction or series of transactions.
3.5 Termination for Infringement. In the event of a claim of intellectual property infringement by any third party relating to the Software, Licensor shall have the right, at its option, to (i) immediately terminate this Agreement and the rights granted hereunder, (ii) obtain such rights as are sufficient to make the Software non-infringing or (iii) substitute the Software with adequate other non-infringing software.
3.6 Effect of Expiration or Termination. Upon expiration or termination of this Agreement, (i) the rights and licenses granted to Customer pursuant to this Agreement shall automatically and immediately terminate and (ii) Customer shall immediately cease using the Software, and cause each Licensee Party to immediately discontinue use of all Software. In addition, for a fixed-term License Period, upon expiration of the License Period, the Registration Key will expire and the Software will cease to function. Furthermore, if DATASCOPE so requests, Customer will delete or destroy any copies of the Software under Customer’s control and provide DATASCOPE with a certificate confirming the destruction of the copies. The remedies of this clause are without prejudice to any other rights or remedies which are available to DATASCOPE.
ARTICLE 4. FEES AND PAYMENT TERMS
4.1 The financial terms for the Software are specified on the DATASCOPE Secure Portal, accessible after registration on the DATASCOPE Website (the
“Secure Portal”). The Effective Date will be from subscription month after license option was selected and sign-up fee for the Initial Term paid. Customer will pay the sign-up fee at the time of signing up for and purchasing the Software license from the Secure Portal. Sign-up fee covers the Initial Term, whereafter Customer will pay a monthly subscription fee for the License Period, unless another payment option is specified. The subscription fee will automatically convert to a monthly fee after the first three (3) month of sign-up period has passed and will be effective for the License Period. Payment of undisputed invoices is due within thirty (30) days from the receipt date of Licensor’s invoice. All fees paid to DATASCOPE are non-refundable except as explicitly permitted from time to time on the DATASCOPE Website. DATASCOPE may terminate this Agreement and invalidate Customer’s Registration Number if the billing or contact information is false, fraudulent, or invalid. Customer will pay all bank charges, taxes, duties, levies, and other costs and commissions associated with any wire transfer or other electronic means of payment; provided, that Customer provides evidence that it has paid the same. Any overdue payments will be subject to a late payment charge of two and one-half percent (2.5%) per month or the maximum rate allowed by applicable law, whichever is less. Unless Customer provides DATASCOPE with a tax exemption certificate, Customer is solely responsible for paying all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties, and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial, or local governmental entity or any non-U.S. Government entity on the transactions contemplated by this Agreement, excluding taxes based upon DATASCOPE’s net income. Customer is prohibited from withholding or delaying any payment of any amount(s) due to DATASCOPE under this Agreement, and is further prohibited from seeking any set-off for any claim which Customer may or may not have against DATASCOPE. Customer’s payment terms may be viewed during the Term on the DATASCOPE Website.
4.2 Additional Authorized Users/Related Licensee Parties Fee. During the license period, Customer shall pay to DATASCOPE the then-current rate for any licenses for concurrent additional Authorized Users. This fee shall be charged or invoiced to Customer on the date such Additional Authorized Users are added to the Customer’s account. If DATASCOPE determines that Customer has more concurrent Authorized Users than Customer has paid for, Customer shall immediately pay DATASCOPE the applicable additional fees.
4.3 DATASCOPE reserves the right to increase the license fees at the beginning of each License Period by providing notice of such increase to Customer at least forty-five (45) days before the beginning of the License Period during which the increased license fees will take effect. However, such increase shall be limited to (i) ten percent (10%) of DATASCOPE’s then-current selling price for the Software, or (ii) a percentage equal to the weighted Consumer Price Index for the previous twelve (12) months, whichever is greater.
ARTICLE 5. WARRANTIES, REPRESENTATIONS AND COVENANTS
5.1 Software Warranty. DATASCOPE represents and warrants that the Software provided under this Agreement shall function substantially in accordance with the Documentation and produce results substantially in accordance with the Documentation for a period of sixty (60) days from the date of delivery of the Software to the Customer. If the Software as provided by DATASCOPE to Customer fails to conform with this warranty, Customer may return the Software and all copies for DATASCOPE’s inspection and review, and must also provide evidence to demonstrate the Software does not function substantially in accordance with the Documentation. If DATASCOPE determines the Software fails to conform to such warranty, DATASCOPE may, at its sole discretion, either replace the Software or terminate the Agreement and provide to Customer a refund of all monies paid to DATASCOPE with respect to the Software. This warranty is only applicable for the initial delivery of the Software and does not apply to any Updates, Upgrades, or revisions.
5.2 Intellectual Property Warranty. DATASCOPE represents, warrants, and agrees that: DATASCOPE has all Intellectual Property Rights necessary to license the Software to Customer in accordance with the terms of this Agreement; DATASCOPE is the sole owner or is a valid licensor of the Software and has secured all necessary licenses, consents, and authorizations with respect to the use of the Software to the full extent contemplated herein, including, but not limited to: all Source Code, text, pictures, audio, video, logos and copy contained therein; the Software does not and shall not infringe upon any patent, copyrights, trademark or other proprietary right or violate any trade secret or other contractual right of any Third Party; and there is currently no actual or threatened suit against DATASCOPEby any Third Party based on an alleged violation of such right.
5.3 Warranty of Authority. Each party represents and warrants that it has the right to enter into this Agreement. DATASCOPE represents and warrants that it has the unrestricted right to license the Software, and that it has the financial viability to fulfill its obligations under this Agreement. DATASCOPE represents, warrants, and agrees that Software shall be free and clear of all liens, claims, encumbrances or demands of Third Parties. DATASCOPE represents and warrants that it has no knowledge of any threatened or pending litigation, dispute or controversy arising from or related to the Software. This warranty shall survive the expiration or termination of this Agreement.
5.4 Compliance with Laws Warranty. DATASCOPE represents and warrants to Customer that it will comply with all applicable laws, including its tax responsibilities, pertaining to this Agreement and its provision of the Software to Customer.
5.5 THE WARRANTIES SET FORTH ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5.6 The warranties listed in this Section DO NOT apply to any beta software, any software made available for testing or demonstration purposes, any temporary software modules or any software for which DATASCOPE does not receive a license fee. ALL SUCH SOFTWARE PRODUCTS ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “WHERE IS” BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. DATASCOPE EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT TO THE DATASCOPE ENHANCEMENTS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
ARTICLE 6. LIMITATION OF LIABILITY
6.1 Consequential Damages Waiver. IN NO EVENT SHALL DATASCOPE HAVE ANY LIABILITY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THE REPRESENTATIVE OF DATASCOPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
6.2 Limitation of Liability. IN NO EVENT SHALL DATASCOPE’s LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED: (I) IF THE SOFTWARE IS LICENSED FROM DATASCOPE DIRECTLY, THE LICENSE FEE PAID BY CUSTOMER TO DATASCOPE FOR THE SOFTWARE, OR (II) IF THE SOFTWARE IS LICENSED THROUGH AN AUTHORIZED RESELLER, THE LICENSE FEE PAID BY CUSTOMER TO THE AUTHORIZED RESELLER.
6.3 Limitation of Remedies. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
ARTICLE 7. TITLE AND OWNERSHIP
7.1 With this Licensing Agreement, Customer acquires the right to use the Software but does not acquire any right of ownership or any other rights to the Software itself. Customer acknowledges that DATASCOPE holds all right, title and interest in any copyrights, patents, trade secrets and any other Intellectual Property Rights in the Software. Nothing in this Agreement shall be construed to convey any title or ownership rights in the Software to Customer.
7.2 All data created and/or processed by the Software is and shall remain the property of Customer and shall in no way become attached to the Software, nor shall DATASCOPE have any rights in or to the data of Customer.
7.3 Any documents, forms, compilations, and/or spreadsheets that are generated from the utilization of the functionality of the Software are not the intellectual property of DATASCOPE, and can be used by Customer in its ordinary course of business, including but not limited to Customer sharing such documents with Third Parties.
7.4 Customer must currently have a valid license in order to use any upgraded or updated subsequent versions to the Software. All Upgrades and Updates are provided to the Customer on a license-exchange basis. Customer agrees that its use of an upgraded- or updated-version will result in Customer’s waiver of the right to use any previous version of the Software.
ARTICLE 8. GENERAL RESTRICTIONS
8.1 Customer understands and agrees that, except as permitted by this Agreement, it may not: (a) sell, assign, lease, license, sub-license or otherwise distribute the Software or Documentation; (b) copy, reproduce, or distribute the Software (whether in whole or in part); (c) use the Software for the purposes of providing commercial data processing services to Third Parties, such as commercial use in a service bureau, timesharing, remote batch, or other similar commercial operation; (d) create or attempt to create, or permit others to create or attempt to create, by reserve engineering or other process, the Software; and (e) export, re-export, divert or transfer the Software or Documentation to any country that is embargoed by U.S. Executive Order.
8.2 Customer further understands and agrees that, except as permitted by this Agreement, it may not attempt to ascertain the Source Code of the Software. Neither the Software nor its Documentation may be altered in any way, including without limitation, being extended, changed for use on other systems, or translated into other languages, unless said alteration is expressly permitted by applicable law. Customer may not create derivative works of the Software.
8.3 Customer agrees to use the Software in accordance with all applicable laws and regulations.
8.4 Customer agrees to provide true, accurate, up-to-date and complete information about Customer as required by DATASCOPE (information also referred to as “Registration Data”). DATASCOPE is entitled to use and disclose the information contained in the Registration Data as necessary to comply with applicable laws, legal requirements, or to otherwise fulfill its obligations under this Agreement. Customer further agrees that DATASCOPE or its agent may use the Registration Data to provide Customer with information regarding updates and new releases of the Software.
8.5 All Enhancements shall become part of the Software and subject to all terms and provisions of this Agreement. THE DATASCOPE ENHANCEMENTS ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “WHERE IS” BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. DATASCOPE EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT TO THE DATASCOPE ENHANCEMENTS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
8.6 Title to all Enhancements shall remain with DATASCOPE.
8.7 Except as otherwise provided in a signed addendum to this Agreement, nothing herein shall obligate DATASCOPE to enhance the Software in any particular respect or on any particular date. The decision as to whether and/or when, to enhance the Software will be within DATASCOPE’s discretion.
ARTICLE 9. CONFIDENTIALITY
9.1 Customer and DATASCOPE agree to maintain the confidentiality of any confidential or proprietary information of one party (the “Disclosing Party”) received by the other party (the “Receiving Party”) during the term of, or prior to entering into, this Agreement that the Receiving Party should know is considered confidential or proprietary by the Disclosing Party based on the nature of the information or the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information (“Confidential Information”). The Software is copyrighted and shall be deemed DATASCOPE’s Confidential Information. The Documentation is copyrighted material of DATASCOPE. This section shall not apply to any information that is or becomes publicly available through no breach of this Agreement by the Receiving Party or is independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party. The foregoing confidentiality obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to an order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable the other party to seek a protective order or otherwise limit such disclosure. The Receiving Party of any Confidential Information of the Disclosing Party agrees not to use the Disclosing Party’s Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The Receiving Party shall protect the secrecy of and avoid disclosure and unauthorized use of the Disclosing Party’s Confidential Information with no less than reasonable care. All the Disclosing Party’s information remains the property of the Disclosing Party.
ARTICLE 10. INDEMNIFICATION
10.1 Indemnification of DATASCOPE. Licensee shall protect, defend, indemnify, and hold DATASCOPE, its parents, subsidiaries, affiliates, successors, assigns, and the officers, directors, employees and other personnel, shareholders and agents of each of them, harmless from and against any and all liabilities, damages, judgments, penalties, losses, costs, expenses (including reasonable attorneys’ fees), claims, suits, or demands relating to or arising from (i) any breach by Licensee of any of its representations, warranties or covenants hereunder; or (ii) any breach by any Licensee Party of this Agreement; or (iii) the use or distribution by Licensee or any Licensee Party of any of the Software, except to the extent such claims are caused by DATASCOPE’s negligence.
10.2 Indemnification of Customer. DATASCOPE shall protect, defend, indemnify, and hold Customer, its parents, subsidiaries, affiliates, successors, assigns, and the officers, directors, employees and other personnel, shareholders and agents of each of them, harmless from and against any and all liabilities, damages, judgments, penalties, losses, costs, expenses (including reasonable attorneys’ fees), claims, suits, or demands relating to or arising from (i) any breach by DATASCOPE of any of its representations, warranties or covenants hereunder; or (ii) any breach by any Licensee Party of this Agreement.
10.3 Intellectual Property Indemnification. Should the become, or in DATASCOPE’s opinion be likely to become, the subject of allegations of infringement for which DATASCOPE could seek indemnification under this Article 10, in addition to the rights provided under Article 10, DATASCOPE may, at its option, (i) procure for Customer and any Licensee Parties the right to continue to use the Software, (ii) replace the Software or infringing portion thereof with a non-infringing product or service; or (iii) suitably modify the Software to make it non-infringing. If options (i), (ii), and (iii) are not possible, then either party may terminate this Agreement and repay to Customer any amount pre-paid by Customer with respect to the Software following the termination date. Notwithstanding the foregoing, DATASCOPE shall not be liable for any claim of infringement resulting for any claim based on (i) any Customer data, (ii) modification of the Software not authorized by DATASCOPE, or (iii) use of the Software other than in accordance with the Documentation and this Agreement, including but not limited to Customer’s failure to use the most current version of an Software promptly after the most current version becomes available to Customer.
10.4 Claims Procedure. If a claim for indemnification is to be made by a Party (the “Indemnified Party”) against the other Party (the “Indemnifying Party”), the Indemnified Party will give written notice (a “Claim Notice”) to the Indemnifying Party as soon as practicable after the Indemnifying Party becomes aware of any fact, condition or event that may give rise to indemnification under this Article 10. If any lawsuit or enforcement action is filed against the Indemnified Party, written notice thereof will be given to the Indemnifying Party as promptly as practicable. The failure of the Indemnified Party to give timely notice hereunder for any purpose will not affect rights to indemnification hereunder, except to the extent such failure materially and adversely prejudices the Indemnifying Party. No lawsuit or action will be compromised or settled without the written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned, or delayed.
10.5 Defense of Claims. The Indemnified Party will have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of the lawsuit or action on behalf of and for the account and risk of the Indemnifying Party and the Indemnifying Party will, upon request of the Indemnified Party, promptly pay to the Indemnified Party the amount of any losses, including costs and expenses, resulting from the lawsuit or action; provided, however, that the lawsuit or action will not be compromised or settled without the written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned, or delayed. The Indemnified Party will keep the Indemnifying Party reasonably informed as to the progress of any such defense, compromise or settlement. The Indemnifying Party will be liable for any settlement of any action effected pursuant to and in accordance with this paragraph and for any final judgment (subject to any right of appeal) and the Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party from and against any losses by reason of the settlement or judgment.
10.6 Notice of Infringement. If the Licensee or any of Licensee’s personnel learns of any infringement, misuse, or misappropriation of any Software, Licensee shall (and shall cause the other Licensee Parties to) promptly notify DATASCOPE thereof in writing.
ARTICLE 11. MISCELLANEOUS PROVISIONS
11.1 Notices. All notices, demands, or consents required or to be given under this Agreement shall be made in the English language and shall be sent by (i) registered or certified first-class mail, postage prepaid, (ii) recognized international courier service (e.g., Federal Express or United Parcel Service), or (iii) e-mail transmission addressed to the party as set forth in the DATASCOPE Website or applicable Software order. Any notice, demand or consent shall be deemed to have been given (i.e., effective) as follows: (i) if by registered or certified mail, at the time of receipt thereof or seven (7) days after the time of mailing, whichever is earlier, (ii) if by recognized courier service, at the time of receipt of same; and (iii) if by facsimile confirmed by a letter sent by registered or certified mail or recognized courier service not later than one business day thereafter, the next business day after the time of sending the facsimile. Any address or facsimile number, for the purposes of above, may be changed by notice given in the manner provided for hereinabove. Notices to DATASCOPE shall be in writing and addressed to DATASCOPE North America, Inc., 4427 Wilgrove Mint Hill Road, Charlotte, North Carolina 28227, USA.
11.2 Amendment. This Agreement may be changed by DATASCOPE from time to time. DATASCOPE will reach out to the e-mail used to register for the Software if any changes are made to this Agreement. However, DATASCOPE encourages Customer to regularly check this Agreement and review for any potential changes.
11.3 Waiver. No waiver shall be deemed effective under this Agreement unless in writing signed by the Party against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power, or privilege hereunder, and no course of dealing among or between the Parties hereto, shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.
11.4 No Assignment. Except for the right provided in Section 2.10, Licensee shall not, and shall not attempt to assign, delegate, sublicense or otherwise transfer the License or any rights or obligations under this Agreement, directly or indirectly, in whole or in part, to any other party without the express prior written consent of Licensor. Any purported assignment by Licensee or any Licensee Party in violation of this provision shall be void. The Parties agree that this Agreement is an executory contract governed by Section 365 of the United States Bankruptcy Code. In granting the License, Licensor has relied upon the particular skill and knowledge base of Licensee, intending to protect its valuable interests, including its intellectual property rights in the Software. Therefore, the Parties acknowledge and agree that, in a Licensee bankruptcy, this Agreement is of the type described by Section 365(c) (1) of the United States Bankruptcy Code and may not be assumed or assigned without the prior written consent of Licensor.
11.5 Successors and Assigns. Except as otherwise provided in this Agreement, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
11.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard to its choice of law and conflicts of law rules. This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.
11.7 Jurisdiction. The Parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with this Agreement shall be brought in the federal or state courts having subject matter jurisdiction over such actions in Mecklenburg County, North Carolina. Each of the Parties hereby irrevocably consents to the exclusive jurisdiction of such courts in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue in any such suit, action or proceeding in any such court or that any such suit, action or proceeding has been brought in an inconvenient forum.
11.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable in any jurisdiction, the remainder of this Agreement shall remain in full force and effect, and such holding shall not affect this Agreement or any provision hereof in any other jurisdiction. If any provision of this Agreement is so held to be illegal, invalid or unenforceable only in part or degree, that provision shall remain in full force and effect to the extent not held illegal, invalid or unenforceable.
11.9 Force Majeure. No failure or omission by a Party to carry out or observe any of the terms or conditions of this Agreement, except for a failure to timely pay any sums of money when due, shall give rise to any claim against the Party in question or be deemed a breach of this Agreement if such failure or omission arises from war, riot, natural disaster, Act of God, Internet failures or any other cause reasonably beyond control of that Party (a “Force Majeure”). If any Party is, wholly or in part, prevented from or hindered in carrying out or observing any of the terms or conditions of this Agreement as a result of a Force Majeure, then such Party shall give written notice to the other Party by the most expeditious means as soon as possible after the occurrence of the Force Majeure relied on, giving full particulars of the reason for such prevention or hindrance, and the Parties shall in good faith consult with each other and take necessary measures for the resolution of the affairs so prevented or hindered.
11.10 Exhibits and Schedules. The exhibits and schedules referred to in this Agreement hereby are incorporated herein and made part of this Agreement.
11.11 Attorneys’ Fees. If any action, suit or proceeding is commenced to establish, maintain, or enforce any right or remedy under this Agreement, the Party not prevailing therein shall pay, in addition to any damages or other award, all reasonable attorneys’ fees and litigation expenses incurred therein by the prevailing Party.
11.12 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, among the Parties with respect to the subject matter hereof.
11.13 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.