#WeEcho
END USER LICENSE AGREEMENT AND TERMS AND CONDITIONS
THIS END USER LICENSE AGREEMENT AND TERMS AND CONDITIONS (“Agreement”) is made as of the Effective Date (defined below) by and between XORBIX TECHNOLOGIES, INC., a Wisconsin corporation (the “Company”), and you (“End User” or “You”). This Agreement relates to the Company’s licensing to End User, and End User’s use of, the #WeEcho software application and related modules, documentation, components and/or license keys (collectively, the “Application”) owned by the Company for use on or through the GEHC Catalog or other distribution channels provided by GE Precision Healthcare LLC, a GE Healthcare business (“GEHC”). For purposes of this Agreement, the term “End User” or “You” includes any individual downloading, copying, installing, accessing or using the Application and, if any such individual is doing so in his or her capacity as an employee, representative or agent of a corporation, limited liability company, partnership or other entity or organization, the term “End User” or “You” includes such corporation, limited liability company, partnership or other entity or organization.
BY WAY OF THE DOWNLOADING, COPYING, INSTALLING, ACCESSING OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU THEN HAVE NO RIGHTS TO THE APPLICATION AND SHOULD THEREFORE NOT DOWNLOAD, COPY, INSTALL, ACCESS NOR USE THE APPLICATION.
This is a legal binding agreement between You and the Company and applies to You in connection with any interaction or communication with the Application or the Company. If you do not accept this Agreement in its entirety, you may not access, engage or in any way use the Application.
1. License.
(a) Grant of License. Subject to End User’s continued compliance with the terms and conditions of this Agreement, the Company grants to End User a limited, non-transferable, and non-exclusive license to use the Application solely for End User’s internal business purposes on a GEHC-approved Ultrasound Device or GE Ultrasound images processing software that End User owns or controls (the “License”), which includes the use of any printed and electronic user documentation related to the Application and provided by the Company under this Agreement (the “Documentation”).
(b) License Restrictions. End User may use the Application only in connection with End User’s normal internal business operations on a GEHC-approved Ultrasound Device or GE Ultrasound images processing software that End User owns or controls and not on behalf of, or for the benefit of any other entity or organization, including but not limited to any affiliates, subsidiaries or parent companies of End User. End User shall not (i) publish, display, distribute, sublicense, rent, lease, lend, remarket, resell or otherwise commercially exploit or transfer the Application or Documentation, or any part or derivative thereof to any third party for any reason; (ii) create derivative works or improvements, whether or not patentable, of the Application or any part thereof; (iii) resell data or services which are derived from the Application or Documentation; (iv) modify or adapt the Application or merge it into another program; (v) reverse engineer, decompile, decode, translate, adapt, or disassemble any part of the Application; (vi) attempt to discover, create or recreate the source code for any part of the Application in any manner; (vii) place or upload the Application or Documentation, or any part thereof, onto a server so that it is accessible via a public network, such as the internet; (viii) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application; or (ix) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application. End User further agrees that it will not violate any applicable local, state or Federal law or regulation in connection with the use of the Application.
(c) Back-Up Copies. Notwithstanding anything in this Agreement to the contrary, End User may make and use copies of the Application for non-productive archival or back-up purposes. End User may also make and use copies of the Documentation for internal business operations. Each copy, back-up or reproduction shall be stored in a safe, confidential and secure location and protected by End User using at least the same level of safety and security End User uses for its own confidential information. No act or omission by End User shall serve to affect any copyright, patent, trade secret and other intellectual property rights the Company may have in any copies, back-ups or reproductions of the Application, the Documentation or anything created or developed by the Company for End User in connection with the license or under this Agreement, all of which shall remain vested in the Company.
2. Term and Termination. The term of this Agreement shall commence on the Effective Date and will continue in effect for a period of one year unless renewed by payment of any applicable renewal or extension fees or if earlier terminated by you, the Company or GEHC as set forth in this Section 2 (the “Term”). End User may terminate this Agreement at any time by deleting the Application and all copies of the Application. The Company may terminate this Agreement at any time without notice if the Company ceases to support the Application, which the Company may do in its sole discretion. GEHC may cause this Agreement to be terminated if GEHC removes the Application from its catalog, the GEHC-approved Ultrasound Device or GE Ultrasound images processing software or as GEHC may otherwise be permitted to terminate this Agreement pursuant to any contract or agreement between GEHC and End User or between GEHC and the Company. Additionally, this Agreement shall immediately and automatically terminate without any notice upon any default or violation of the terms and conditions of this Agreement by End User. Upon termination, whether pursuant to the terms of this Agreement or due to a default or violation of the terms and conditions of this Agreement, the License and all rights granted to End User under this Agreement shall also terminate and End User shall immediately and permanently cease all use of the Application. The obligations of the parties under this Agreement that expressly survive termination or by their nature would continue beyond expiration, termination or cancellation of this Agreement shall survive any such expiration, termination or cancellation.
3. Updates. The Company may from time to time, in its sole discretion, develop and provide updates for the Application, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Application. You agree that the Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. All Updates will be provided solely through the GEHC Catalog, and not directly to End User. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement unless any Updates are covered under a separate license for which the terms of that license shall control.
4. Support Services. Subject to End User’s continued compliance with the terms and conditions of this Agreement, the Company shall provide such support services as may be required under the Company’s agreement with GEHC, or as required under applicable law. End User acknowledges that the Application is available through the GEHC Catalog and dependent upon the functionality and performance of the GEHC Catalog and the GEHC-approved Ultrasound Device or GE Ultrasound images processing software on which the Application is installed. The Company makes no representations or warranties regarding the GEHC Catalog or the GEHC-approved Ultrasound Device or GE Ultrasound images processing software and shall not be liable for any damages, losses, costs or expenses End User may incur as a result of errors, deficiencies or other issues affecting the GEHC Catalog or the GEHC-approved Ultrasound Device or GE Ultrasound images processing software, including but not limited to the decreased effectiveness of the Application as a result of such issues. Notwithstanding the foregoing, End User acknowledges that GEHC has no obligation whatsoever to furnish any maintenance or support services with respect to the Application other than distribution of the Application and Updates and global customer service, including commercially reasonable help desk support, installation and training services.
5. License and Maintenance Fees. The purchase of the Application and payment of any License fees for use of the Application by End User shall be through GEHC and shall be governed by the terms of any applicable agreement between End User and GEHC. All license fees and other payment obligations are non-cancelable and all amounts received by the Company are non-refundable. End User is responsible for paying all fees associated with the License for the entire Term, whether or not such License is actually used. End User shall also be responsible for all taxes due in connection with the License and this Agreement, including but not limited to sales, use, excise and personal property taxes (but not related to income taxes). End User agrees to hold harmless the Company from all claims and liability arising from End User’s failure to report or pay any taxes which are not collected by the Company from End User. All pricing terms are confidential, and End User agrees not to disclose them to any third party.
6. Event of Default End User shall be considered in breach in the event that End User (a) fails to make any payments due under this Agreement or under any other agreement with the Company, (b) fails to perform or improperly performs any of its other obligations under this Agreement, (c) commits an act of bankruptcy, becomes subject to any proceeding pursuant to the Bankruptcy Code, becomes insolvent, or has any substantial part of its assets become subject to levy, seizure, assignment, application or sale for or by any creditor or governmental agency, or (d) ceases doing business.
7. Application Ownership. The Company has sole and exclusive ownership of all rights, title, ownership and interest in and to the Application, Documentation and all other Confidential Information (subject only to the limited internal business use License granted under this Agreement). The Company shall retain all copyright, patent, trade secret and other intellectual property rights the Company may have in the Application, the Documentation or anything created or developed by the Company in connection with the Application, the License or under this Agreement. End User shall not have any rights, title, ownership or interest in or to the Company’s name, trademarks or logo, or any goodwill now or hereafter associated therewith, all of which rights, title, ownership, interest and goodwill is the sole and exclusive property of and shall inure exclusively to the benefit of the Company. End User shall not use the Company’s name, trademark, logo and/or any part of the Application or Documentation in any marketing or other materials that will be distributed by End User to third parties without the Company’s prior written consent. End User shall keep the Application free and clear of all claims, liens, and encumbrances.
8. Legal Compliance/De-Identification of Information. End User covenants and agrees that End User will comply with all applicable laws relating to the use of the Application and any images or other data obtained or shared using the Application (the “End User Data”), including, without limitation, the de-identification of any End User Data to comply with the HIPAA Privacy Rule, 45 C.F.R. Section 164.514(a) (“HIPAA Privacy Rule”). End User represents and warrants that any Data provided will not contain any “Protected Health Information” (PHI), as defined in the HIPAA Privacy Rule, and shall be de-identified in accordance with the HIPAA Privacy Rule. End User has taken all necessary actions to remove any personally identifiable information (including PHI) that may be subject to any privacy laws or has obtained all necessary consents and approvals to use, access, disclose and transfer any images or other data shared using the Application. Neither the Company nor GEHC shall have any responsibility for, and End User shall indemnify, hold harmless and defend the Company and GEHC against, any and all costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with any violation of the foregoing.
9. No Representations or Warranties.
(a) Disclaimer. THE APPLICATION IS PROVIDED “AS-IS”. THE COMPANY DOES NOT WARRANT THAT END USER’S USE OF THE APPLICATION WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR COMPLETELY SECURE. THE COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. END USER ACKNOWLEDGES AND AGREES THAT IT IS NOT RELYING ON ANY STATEMENT, PROMISE, OR REPRESENTATION, EITHER ORAL OR WRITTEN, MADE BY OFFICERS, SALESMEN, OR AGENTS OF THE COMPANY, WHICH WOULD SUPPLEMENT, EXPLAIN, INTERPRET, MODIFY OR EXPAND THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ANY SALES LITERATURE OR WRITTEN PROPOSALS. END USER ACKNOWLEDGES AND UNDERSTANDS THAT NO EXPRESS WARRANTY IS CONTAINED OR CREATED IN ANY ORAL STATEMENT OR IN ANY WRITING OTHER THAN THE EXPRESS WRITTEN WARRANTIES CONTAINED IN THIS AGREEMENT.
(b) Hardware. The Company makes no representations or warranties regarding any hardware and/or third-party software not manufactured by the Company, including but not limited to performance of the hardware and/or software or damages caused by a malfunction of the hardware and/or software. Any hardware or third-party software purchased, licensed, leased or otherwise used by End User shall be covered by the manufacturer’s warranty, if any, which may be obtained directly from the manufacturer.
(c) GEHC. End User acknowledges and agrees that the Company is solely responsible for any of the foregoing warranties, and GEHC shall have no obligations or liability in connection therewith except for in the event the Application does not conform to any of the Company’s foregoing warranties, upon notice from End User to GEHC, GEHC may provide a refund of any license fees paid by End User in accordance with GEHC’s requirements and practices. To the maximum extent permitted by law, GEHC has no other warranty obligations whatsoever with respect to the Application and any other claims, losses, liabilities damages, costs or expenses attributable to any failure of the Application.
10. Limitation of Liability. END USER ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL THE COMPANY, OR ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVE OR AGENTS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER THEY BE DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF GOODWILL, LOST DATA, LOST OPPORTUNITIES, OR OTHER SIMILAR DAMAGES ARISING FROM, RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, THE LICENSE, OR END USER’S USE OR INABILITY TO USE THE APPLICATION, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, TO THE EXTENT THAT APPLICABLE LAW REQUIRES THE ASSIGNMENT OF LIABILITY TO PARTIES, THE CUMULATIVE LIABILITY OF THE COMPANY SHALL NOT EXCEED $100.
11. Third Party Software/Intellectual Property. The Company represents and warrants that it has full authority to license under the terms of this Agreement all third-party software and open source software that is integrated into the Application or otherwise delivered in connection with the Application. End User shall comply with the terms of use of any such third-party software, including, without limitation, the terms of use of Twitter®. In the event of a claim by a third party that the Application infringes on the intellectual property rights of such third party, the Company shall be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, except to the extent such claim arises by the acts or omissions of End User, in which case End User shall indemnify and hold harmless the Company against any and all costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with such claim, and, at the Company’s election, defend the Company against such claims.
12. Confidentiality. End User acknowledges and agrees that, during the term of this Agreement, End User will have access to and become acquainted with proprietary, non-public or confidential information, both verbal or written, owned or licensed by the Company and/or used in connection with the operation of the Company’s operations, business or affairs, the Application and all modifications and upgrades to the Application and the Documentation, including but not limited to the contents of this Agreement, trade secrets, source codes, data, formulas, systems, inventions, innovations, processes, information, techniques, records and specifications, business and product processes, methods and procedures, financial information, organizational information relating to the Company’s officers and employees, and any information marked as “Confidential” (collectively, “Confidential Information”). End User further acknowledges and agrees that the Confidential Information are commercially valuable, proprietary products of the Company or its licensors, the design and development of which reflect the effort of skilled development experts and the investment of considerable time and money. End User agrees that it will not disclose any of the Confidential Information, directly or indirectly, or use any of the Confidential Information in any manner, either during the term of this Agreement or at any time thereafter, except as required and permitted under this Agreement. End User shall store the Confidential Information, in its possession or under its control, in a safe, confidential and secure location and protected by End User using at least the same level of safety and security End User uses for its own confidential information the Company claims and reserves all rights and benefits afforded under federal copyright law in the Company’s Confidential Information as unpublished works. The Confidential Information does not include any items which have become publicly known and made generally available through no wrongful act of End User. The terms of this Section shall survive the termination of this Agreement.
13. Indemnification. To the extent permitted by state law, End User shall indemnify and hold the Company, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with your use or misuse of the Application, including, without limitation: (a) a claim alleging that use of the End User Data infringes the rights of, or has caused harm to, a third party; (b) a claim, which if true, would constitute a violation by End User of End User’s representations and warranties; or (c) a claim arising from the breach by End User of this Agreement. Furthermore, you agree that Company assumes no responsibility for the content you submit or make available through this Application.
14. Export Regulations. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation, including, without limitation, any country that is subject to an embargo or has been designated as a “terrorist supporting” country by the United States government. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the US.
15. Prohibited Persons. End User represents and covenants that it is not and will not become a person (individually, a “Prohibited Person” and collectively “Prohibited Persons”) listed on the Specially Designated Nationals and Blocked Person List or other similar lists maintained by the Office of Foreign Assets Control (“OFAC”), the Department of the Treasury or included in any Executive Orders, or otherwise subject to any other prohibitions or restriction imposed by any laws administered by OFAC (collectively the “OFAC Rules”). End User represents and covenants that it also (1) is not and will not become owned or controlled by a Prohibited Person, (2) is not acting and will not act for or on behalf of a Prohibited Person, (3) is not otherwise associated with and will not become associated with a Prohibited Person, and (4) is not providing and will not provide any material, financial or technological support for or financial or other service to or in support of acts of terrorism for a Prohibited Person.
16. Notices. Any notices or communications from End User to the Company shall be given by: (a) personal delivery in writing; (b) registered or certified mail, postage prepaid, return receipt requested; (c) nationally-recognized private express courier or (d) e-mail with confirmation of delivery, at the following address:
Xorbix Technologies, Inc.
PO BOX 180403
Delafield, WI 53018
Telephone: 866-568-8615
Email: WeEcho@xorbix.com
Notwithstanding the foregoing, the Company may change the foregoing contact information upon notice to End User, which may include posting new contact information on the Company’s website, xorbix.com.
17. Miscellaneous.
(a) Captions; Construction of Terms. The captions used in this Agreement are for convenience only and shall not control the meaning or interpretation of any of the provisions in this Agreement. The language in all parts of this Agreement shall in all cases be construed as a whole and according to its fair meaning, and not strictly for or against either the Company or End User, and the construction of this Agreement and any of its various provisions shall be unaffected by any argument or claim that it has been prepared by or on behalf of the Company or End User. Whenever herein the singular number is used, the same will include the plural, and words of any gender will include each other gender.
(b) No Waiver. One or more waivers of any breaches of any covenant, term or condition of this Agreement by either party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by either party will not be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by either party to or of any act by the other party requiring such consent or approval will not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act.
(c) Assignment. This Agreement may not be assigned by End User without the prior written approval of the Company. Any purported assignment by End User in violation of this Section shall be void.
(d) Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of Wisconsin, without regard to conflicts of law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court in the State of Wisconsin and the parties irrevocably consent to the personal jurisdiction of such courts.
(e) Benefit and Burden. The terms, provisions and covenants contained in this Agreement will inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors in interest, assigns and legal representatives except as otherwise herein expressly provided. Notwithstanding anything in this Agreement to the contrary, the Company and End User acknowledge and agree that GEHC and its subsidiaries shall be considered third-party beneficiaries of this Agreement, and that, upon the Effective Date, GEHC will have the right (and will be deemed to have accepted the right) to enforce the terms of this Agreement against End User as a third-party beneficiary.
(f) Validity and Severability. Each provision of this Agreement will be construed in such manner as to give such provision the fullest legal force and effect possible. To the extent any provision herein (or part of such provision) is held to be unenforceable or invalid when applied to a particular set of facts, or otherwise, the unenforceability or invalidity of such provision (or part thereof) will not affect the enforceability or validity of the remaining provisions hereof (or of the remaining parts of such provision), which will remain in full force and effect, nor will such unenforceability or invalidity render such provision (or part thereof) invalid for any other purposes.
(g) End User’s Authority. The individual authorizing this Agreement and use of the Application on End User’s behalf hereby represents and warrants that he or she is authorized to do the same, and that this Agreement will be the valid and binding obligation of End User.
(h) Attorneys’ Fees. In any legal dispute between the parties, the Company will be entitled to recover reimbursement of its reasonable legal fees from End User, including attorneys’ fees in any bankruptcy proceedings or on appeal, in the event that the Company is the prevailing party.
(i) Modifications. The Company reserves the right at any time to modify, discontinue or terminate the Application, or modify the terms of this Agreement at its sole discretion. End User shall be deemed to have agreed to any modifications to the terms of this Agreement by continued use of the Application or payment of any fees related to the use of the Application.
(j) Effective Date. The “Effective Date” of this Agreement shall be the date upon which End User downloads the Application.