MIRADA MEDICAL LIMITED SOFTWARE Licence, WARRANTY AGREEMENT AND ANCILLARY TERMS
PERPETUAL OR SUBSCRIPTION Licences
This Licence agreement and limited warranty set out below (the Licence) constitutes a legally binding agreement between you, the User (which term shall include Licensees and/or purchasers (collectively or individually) and Mirada Medical Limited (including Mirada’s Affiliates and Mirada Medical Products Suppliers (each as defined below, and referred to in this Agreement as “Mirada” or the “Licensor”), covering the Use (as defined below) of the Mirada Medical Products (as defined below) whether under a Perpetual Licence or Subscription Licence as specified in Mirada’s quotation.
By signing the Quotation, installing, downloading, accessing or otherwise Using (as the case may be) the Mirada Medical Products in any way, you agree to be bound by all of the terms, conditions and restrictions of this Licence the terms of which shall take precedence over any terms included with any download or access of the Mirada Medical Products including but not limited to governing law provisions. Absent an Original Equipment Manufacturer (“OEM”) relationship with Mirada where such OEM relationship requires Mirada Medical to provide source code for the Software and/or Software Product(s) to a User, no source code for the Software shall ever be provided to you nor be subject to any Licence hereunder.
The Licence is subject to any specific terms set out in the Licensor’s quotation. In the event of any inconsistency between the terms of this Licence, the Quotation and the Schedules to this Licence and any version of the Licence included with the Mirada Medical Products the order of precedence shall be:-
If you do not agree with the terms, conditions and/or restrictions contained herein, the Licensor does not grant a Licence to Use the Mirada Medical Products whether under a Perpetual Licence or a Subscription Licence. In such event, you are not authorised to install, access, or otherwise in any way Use (as the case may be) any of the Mirada Medical Products, and you should promptly contact the Licensor and comply with its instructions on returning the Mirada Medical Product(s).
The Maintenance and Support provisions are set out in Schedule 1. In respect of a Perpetual Licence, Maintenance and Support is included in the price paid for the duration of the Warranty Period and after that, if agreed by you on a paid for basis, as Purchased Maintenance and Support. In respect of a Subscription Licence, Maintenance and Support is included for the duration of that Subscription Licence.
If the Licensor is Mirada Medical and Mirada Medical has agreed to supply Hardware (as defined below) to you as specified in the relevant Quotation, the terms and conditions in Schedule 2 shall apply.
If the Quotation references the provision of Bespoke Modelling Services the supplemental terms and conditions in Schedule 3 shall apply.
1.1. The following definitions shall be relied upon and comprise a portion of this Licence wherever and whenever found in the document:
“Acceptance” shall be deemed to have occurred on the earlier of (i) first clinical Use of the Mirada Medical Products; or (ii) six weeks after the date of Shipment, and “Accepts”, “Accepted” and “Accepting” shall be construed accordingly.
“Bespoke Modelling Service” (if any) means the provision by Mirada of specific developments to the Software in accordance with the supplemental terms of Schedule 3 (if applicable) to meet specific requirements of the User as defined in a Quotation.
“Bespoke Modelling Service Terms” means the Licence terms and conditions (supplemental to the terms set out herein) which are set out in Schedule 3 and which apply to the Use of Bespoke Modelling Service if applicable as specified in the Quotation.
“Computer” means an electronic device that accepts information in digital or similar machine readable form and manipulates it to achieve a result initiated by a sequence of instructions, which may include servers or virtual servers.
“Affiliate” means any company or trading office in the Mirada Medical Limited group of companies
“Bespoke Modelling Service Terms” means the Licence terms and conditions supplemental to the terms set out herein which are set out in Schedule 3 and which apply to the Use of Bespoke Modelling Service if applicable as specified in the Quotation.
“Documentation” shall mean any and all written materials including user manuals, “Read Me” files, product specifications, and/or other explanatory written materials associated with or pertaining to the Mirada Medical Products which are made available to you from time-to-time.
“Hardware” means any computer system or computer system component that has been provided to you in conjunction with the Software Product, excluding any Software Licence Key devices.
“Initial Subscription Term” means the initial term of a Subscription Licence as set out in the Quotation.
“Installation” means the date of receipt by you of the Software Licence Key, but in any event shall be no longer than 7 days after the date of despatch of the Software Licence Key by the Licensor.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in set-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, including the right to sue for and recover damages for past infringements.
“Licence” means these Licence terms and conditions, together with all Schedules to them, and any annexes to such schedules, but Schedule 1B (Service Level Agreement), Schedule 2 (Hardware) and/or Schedule 3 (Bespoke Modelling Service Terms) shall only be included to the extent that they are applicable pursuant to the Quotation.
“Maintenance and Support” means Mirada’s obligations to maintain and support the Software Products covered under and subject to the terms of this Licence as described in Schedule 1.
“Maintenance and Support Term” means (i) for Perpetual Licences a twelve (12) calendar month period from expiry of the relevant Warranty Period and any subsequent 12 calendar month periods for which the User has agreed to pay or such other period agreed to in writing by the Licensor; and (ii) for Subscription Licences a twelve calendar month period from the date of first Use or any anniversary of the date of first Use, during which the Licensor agrees to provide the Maintenance and Support.
“Mirada Medical” means Mirada Medical Limited, a company registered in England under registered number 6515901 and whose registered office is at New Barclay House, 234 Botley Road, Oxford OX2 0HP, England, and using the trading name “Mirada Medical”.
“Mirada Medical Services” means Maintenance and Support and Bespoke Modelling Services if applicable and specified in a Quotation.
“Mirada Medical Products” means the Software, Software Products, Updates, Upgrades, and Documentation owned by and/or licensed to Mirada Medical, unless the parties have expressly agreed otherwise in writing in the Quotation or any variation of it.
“Mirada Medical Products Supplier” means the Licensor or any Mirada Medical approved and authorised source of supply from whom all or any portion of the Software Product is lawfully purchased and obtained, or through whom any Software Product was originally and lawfully acquired by one from whom you lawfully acceded to ownership and possession. The Mirada Medical Products Supplier may not be the source of supply for Hardware and only an authorised Mirada Medical Products Supplier has a right to provide you the User with this Licence.
“Perpetual Licence” means (if applicable) the perpetual Licence granted pursuant to clause 2.1.
“Purchased Maintenance and Support” means the Maintenance and Support purchased by you;
“Quotation” means the Mirada Medical quotation setting out the terms for supply of the Software on either a Perpetual Licence or a Subscription Licence as stipulated in such Quotation together with any additional terms including but not limited to terms for Bespoke Modelling Service;
“Renewal Term” means any renewal term described in clause 7.1.
“Shipment” means delivery of the Software to the User, or delivery of a link from which the Software can be downloaded.
“Software” means the object code for the machine instructions for the Mirada Medical software as embodied in the Software Products and licensed pursuant to the terms of this Licence.
“Software Licence Key” means any software system or physical hardware device (e.g. a ‘dongle’) used in conjunction with the Software to manage, control and restrict access to the Software.
“Software Product(s)” means any and all media having Software stored thereon, including but not limited to any and all content storage devices such as disks(s), CD-ROM(s), DVD, tapes, USB memory devices, etc., capable of storing files, subroutines, program statements or the like in machine readable object code as such media is used by Mirada Medical to distribute the Software, together with any associated Software Licence Key.
“Subscription Licence” means (if applicable) the subscription Licence granted pursuant to clause 2.2.
“Subscription Term” means the Initial Subscription Term together with any Renewal Term(s) (if applicable).
“Turnkey Installation” means an arrangement referenced in the Quotation for the installation of Software and Hardware by the Licensor.
“Update” means a change to the Software, including modifications such as a ‘bug fix’ or program patch, or which improves existing functions or features of the Software, or the performance of existing functions or features.
“Upgrade” means an enhancement or change to a newer version of the Software Products which increases the scope or performance of the Software by adding new modules, features or functionality.
“Use”, “Used” “Uses” or “Using”, etc., means to install, access and manipulate data through operation of the Software and/or any of its features, or to otherwise benefit from the functionality of the Software via a Software Product or the Documentation.
“User” is one who directly, or indirectly through the operation or manipulation of any hardware device capable of functioning in response to machine readable object code or Basic Input Output System, as well as any other software programs functionally connected to the Software, Uses the Software.
“Warranty Period” means in respect of the Perpetual Licence, twelve (12) months from the date of Installation and for the Subscription Licence, the term of that Licence.
2. Grant of Licence
Perpetual Licence – clause 2.1 shall only apply to the grant of Perpetual Licences, as stipulated in the relevant Quotation
2.1. Subject to your continued compliance with the terms of this Licence you are hereby granted a non-exclusive, perpetual right to install, Use, access, display and run either:
2.1.1. one (1) installation of the Software Product on one (1) Computer, to be licensed to and used only on that Computer ; or
2.1.2. one (1) installation of the Software Product on one (1) networked Computer for use by up to the number of concurrent Users and/or access locations you have paid for;
in each case at the single physical site (or sites) described in the Quotation. You may change the location of the licensed site (or sites) or the number of sites licensed only with the prior written agreement of the Licensor, which may be subject to an additional Licence or administration fee.
2.1.3 with reference to any Mirada Medical Service supplied with a Perpetual Agreement all Mirada Medical Services shall be supplied for the Warranty Period only as described in Schedule 1 and thereafter may be renewed (as if supplied on Subscription Terms) subject to the provisions of clause 7 regarding the renewal of such Mirada Medical Services.
Subscription Licence – clause 2.2 shall only apply to the grant of Subscription Licences, as stipulated in the relevant Quotation
2.2. Subject to your continued compliance with the terms of this Licence, you are hereby granted a non-exclusive right to, during the Subscription Term, install, Use, access, display and run either:
2.2.1. one (1) installation of the Software Product on one (1) Computer, to be licensed to and used only on that computer; or
2.2.2. one (1) installation of the Software Product on one (1) networked workstation for use by up to the number of concurrent Users and/or access locations you have paid for;
in each case at the single physical site (or sites) described in the Quotation. You may change the location of the licensed site (or sites) or the number of sites licensed only with the prior written agreement of the Licensor, which may be subject to an additional Licence or administration fee.
The following terms of this clause 2 apply to both Perpetual Licence and Subscription Licences
2.3. NO PART OF THIS Licence SHALL GRANT THE USER ANY RIGHT TO COPY ANY OF THE MIRADA MEDICAL PRODUCTS. ANY AND ALL COPYING OF THE MIRADA MEDICAL PRODUCTS THAT IS INCONSISTENT WITH ALL APPLICABLE LAWS, NATIONAL AND INTERNATIONAL TREATIES GOVERNING SOFTWARE PIRACY AND ILLEGAL DISTRIBUTION, IS COMPLETELY AND TOTALLY PROHIBITED.
2.4. Mirada Medical and its Mirada Medical Products Supplier(s) expressly reserve all rights not granted to the User of the Software Products covered by this Licence.
2.5 with reference to any Mirada Medical Services supplied with a Subscription Agreement all Mirada Medical Services shall be supplied upon Subscription Terms only and subject to the provisions of clause 7 regarding the renewal of such Mirada Medical Services
3. Limitations and rights
3.1. This Licence grants the Licence rights described hereunder to the User only if the Software and Software Product is genuine, as determined by Mirada Medical, and has been supplied by the Licensor after confirmation that the Software Products in question has been duly and properly purchased from the Licensor in order for the purchaser to receive this Licence or any Licence to Use the Mirada Medical Products. The Software, Software Product(s) and Documentation are owned by Mirada Medical and are protected by copyright law and international copyright treaty. Mirada Medical (including Mirada Affiliates and Mirada Medical Product Suppliers if applicable) retains title to the Software and/or Software Product and all associated intellectual property rights attributable and apportioned thereto.
3.2. You acknowledge that the Software and Software Product in source code form is and remains a confidential trade secret of Mirada Medical.
3.3. You shall not modify the Software Product or attempt to reverse engineer, vary, adapt, decompile, or disassemble the Software Product to in any way access or discover the source code except strictly to the extent expressly required to be permitted by law in a manner which cannot be excluded by contract) taking into account the nature of the permitted Use. If you are so legally permitted to decompile the Software to obtain information necessary to render the Software interoperable with other software (which both you and the Licensor acknowledge is not expected to be required given the nature of the Use), then you must first request the Licensor to carry out such interoperability work or provide the required information to you for the purposes of such interoperability work and the Licensor may, in its sole discretion, either provide such information to you or impose reasonable conditions, including a reasonable fee. Furthermore you explicitly undertake not to bypass, subvert or render ineffective or to attempt to bypass, subvert or render ineffective any Software Licence Key elements or their interfaces within the Software.
3.4. You further undertake to keep confidential all information embodied in any Software Products or any other information notified to you as being confidential and not to use such information other than for the intended purposes for which the Software and Software Products are subject to the Licence hereunder as well as the permissible Use of the Software Product, or receipt of Maintenance and Support in accordance with this Licence.
3.5. Except as expressly agreed in writing by the Licensor, you may not transfer, rent, lease, lend, copy, modify, sub-license, distribute, time-share, use to operate a service bureau or electronically transmit or receive the Software, Software Product, media or Documentation, or assign, license or sub-license the same under this Licence. The preceding restriction includes a prohibition on using the Software Product to provide commercial hosting services or for the benefit of any third party. You shall not, and shall not knowingly permit others to use, copy, duplicate or otherwise reproduce all or any part of the Software or Documentation.
3.6. Any breach of the foregoing in this clause 3 will be considered a material breach of this Licence that is incapable of cure.
3.7. All Hardware items provided with the Software Product are warranted, licensed and supported under separate specific agreements as provided by the original manufacturer thereof, and the Licensor makes no representation and expressly disclaims any and all warranty in respect of such Hardware items under this Licence. If the Quotation references a Turnkey Installation Licensor will use reasonable endeavours to ensure that User receives the benefit of the Hardware warranty set out in any third party agreement, either as a right directly enforceable against the original manufacturer by User or as a right enforced by Licensor on behalf of User.
3.8. If the Software Product is sold as a combined package with associated Hardware, then the Software Product is licensed with the Hardware as a single integrated product. The Software Product may only be used with the associated Hardware as supplied. If the Software Product is licensed as a single product in accordance with either clause 2.1.1 or 2.2.1 as applicable,, its component parts may not be separated or be disassociated from the whole for Use on more than one (1) Computer.
3.9. If you have purchased an Upgrade version of the Software Product or you have been provided with an Upgrade version of the Software Product under any Purchased Maintenance and Support, it constitutes a single product with the Software Product that you upgraded. You may Use the Upgrade version of the Software Product only in accordance with this Licence.
3.10. Any additional software provided by Mirada Medical or a Mirada Medical Product Supplier to you, which updates or supplements the original Software Product is governed by this Licence unless alternative terms are provided with such updates or supplements as issued by Mirada Medical or a Mirada Medical Product Supplier.
3.11. Mirada Medical has been granted Licences to distribute certain third party programs. As a condition of those permissions and Licences, Mirada Medical is required to distribute the programs subject to specific terms and conditions, which may be different from or additional to those contained herein for the Mirada Medical Products. Any software provided along with the Mirada Medical Products that is associated with a separate user Licence agreement is licensed to you under the terms of that Licence agreement in addition to the prohibition of copying as set forth in this Licence. You understand and agree that acceptance of this Licence also confirms your acceptance of the applicable provisions for use of such third party programs. If you breach the applicable provisions of any third party’s Licence terms then that shall also be considered a material breach of this Licence.
3.12. You may receive the Software Product in more than one medium. Regardless of the type or size of medium you receive, you may use only one (1) medium that is appropriate for the Computer. You may not use or install the other medium on another computer. You may not loan, rent, lease, lend or otherwise transfer the other medium to another person, user or entity, except as part of any permitted permanent transfer of the Software Product in accordance with this Licence.
4. Intellectual Property Indemnity
4.1. The Licensor shall indemnify you against any claim that the normal use or possession of the Mirada Medical Products infringes the Intellectual Property Rights of any third party provided that (a) the Licensor is aware of such infringement, is proven to have been infringing the Intellectual Property rights of such third party; (b) the Licensor and/or Mirada Medical is given immediate and complete control of such claim; (c) you do not prejudice the Licensor or Mirada Medical’s defence of such claim; (d) you give the Licensor and/or Mirada Medical all reasonable assistance with such claim; and (e) the claim does not arise as a result of the use of the Software Products otherwise than in accordance with the terms of this Licence or with any equipment or programs not approved by the Licensor. If a Mirada Medical Products is found to infringe any such third party Intellectual Property Right, at the Licensor’s sole discretion and expense, the Licensor may (i) obtain a Licence from such third party for your benefit, or (ii) replace or modify the Mirada Medical Products so that it is no longer infringing, or (iii) terminate this Licence and refund to you all amounts previously paid by you for the Mirada Medical Products less a reasonable amount to reflect any period of Use of the Mirada Medical Products by you up to the date of such termination. The foregoing states the entire liability of the Licensor and/or Mirada Medical to you in respect of the infringement of the Intellectual Property Rights of any third party.
5. Maintenance and Support
5.1. During the Warranty Period and the Subscription Term, the Licensor shall deliver to you without additional charge any subsequent Update version releases of the Software Products which may be released and applicable to the Software Product you have purchased.
5.2. During the Warranty Period, Subscription Term and, if applicable (and in consideration of any agreed further payments that apply), the Maintenance and Support Term, you are entitled to receive Maintenance and Support from the Licensor in relation to the Software Product as set out in Schedule 1.
5.3. If your entitlement to Purchased Maintenance and Support should lapse for any reason, or be revoked for any reason, then the Licensor may at its discretion grant you permission to re-subscribe for another Maintenance and Support Term so that the Maintenance and Support are not interrupted, and your entitlement to Maintenance and Support is re-established by the payment of an appropriate fee covering your existing Software Product version. However, the Licensor, in its sole discretion may require you to purchase additional product Upgrades as necessary prerequisites to any Maintenance and Support in order to bring your then current version of the Software Product to the most current version thereof (i.e., the latest released version). The Licensor has the option to maintain and support only the most up-to-date version of the Mirada Medical Products.
5.4. No warranty is given, express or implied, that the Software Product is compatible with, or capable of running on the same Computer as, any third party software product. The Licensor does not undertake to make the then existing product compatible with any other such product, or with any other use of the Computer then running the Software Product in accordance with the instructions, whether the Software Product is sold as a combined package with associated hardware, or whether the Computer is supplied by a third party.
5.5. The Licensor does not undertake to repair any malfunction caused by any such incompatible use. The Licensor shall not be liable to remedy any damage caused by virus attack, hacking, or any damage caused by the actions of third parties to which the Software Product has been exposed through connection to any networks, including public, private, world wide web and intranets.
5.6. The Licensor reserves the option to discontinue, in whole or in part, providing Maintenance and Support for any version or release of the Mirada Medical Products, provided that if you have a current and fully paid up Service Level Agreement in place with the Licensor for such Mirada Medical Product, the Licensor may do so only if it offers to you free of charge a version or release of that Mirada Medical Product for which it is prepared to continue providing Maintenance and Support.
6. Your Obligations
6.1. You shall take all actions necessary to fulfil your obligations hereunder and will ensure by instruction or agreement with your employees or agents who are permitted access to the Mirada Medical Products that they will comply with the terms hereof. You will only give access to the Mirada Medical Products on a need-to-know basis.
You shall promptly provide all information and assistance reasonably requested by the Licensor to enable the Licensor to perform any necessary configuration of the Software and to comply with its obligations under this Licence and its legal and regulatory obligations (which could, without limitation, include Updates, corrections or recalls). If you fail to do so the Licensor shall not be liable for any corresponding failure of the Software to comply with its warranty.
6.2. Among other things, you shall ensure that any premises and offices at which the Licensor employees, sub-contractors, agents or consultants are required to attend to perform Maintenance and Support under this Licence comply with all applicable health and safety legislation and are safe, secure and suitably equipped for the performance of such services and you shall indemnify the Licensor against any loss, liability, expense or cost which it incurs in relation to your breach of this clause.
6.3. By Accepting, you acknowledge that you have been fully appraised and made aware of the approved uses of the Software and you further agree not to misuse the Software or enable or encourage others to misuse the Software.
6.4. If you purchase training for the Software from the Licensor you shall be responsible for ensuring that the appropriate personnel attend the training on the agreed date. Unless a delay is caused by the Licensor, the Licensor shall not be obliged to provide training more than 12 months after the later of Shipment or ordering the training, even if you have paid for the training.
6.5. You agree that your Use, or that of your Users who Use the software at your direction, under your supervision, or within your employ, under this Licence have been made aware of the terms and provisions of this Licence and such Use is limited solely to the uses for which the Mirada Medical Products has been approved. Furthermore you further agree that you will not Use or encourage the Use of the Mirada Medical Products for any purpose other than the purpose for which the Mirada Medical Products was intended (with the prior understanding of the limitations on the Uses of the Mirada Medical Products).
6.6. You undertake to comply with the reasonable instructions and recommendations of the Licensor and/or Mirada Medical as to the Use of the Software Product set out in any Documentation or issued from time to time during the course of provision of the Maintenance and Support and you agree that the Licensor and Mirada Medical shall not be liable for any defect or failure of the Software Product which could have been avoided by your compliance with such Documentation, instructions or recommendations.
6.7. Medical Use Disclaimers: Diagnosis is your complete and sole responsibility and neither Mirada Medical nor its licensors assume any liability for an inaccurate diagnosis. You acknowledge that (i) the Mirada Medical Products is not intended to provide diagnoses or therapeutic recommendations, but is intended to be only a visual aid for use by trained medical professionals; (ii) users of the Mirada Medical Products should never rely solely on it in making diagnostic or therapeutic decisions, nor to determine the presence or absence of a condition, but instead interpret all of the patient’s clinical and diagnostic information (including the output of the Mirada Medical Products) to make a final diagnosis regarding a patient; and (iii) the raw data manipulated by the Mirada Medical Products should also be assessed in making any clinical determinations.
6.8. You undertake to take reasonable care of the Mirada Medical Products, and specifically the Software Products by:-
6.8.1. protecting and insulating the Computer from physical damage, power surges and cut-offs;
6.8.2. protection of the network to which the Computer may be connected (and while having the understanding that the Software and Software Products are not necessarily licensed for use over a network);
6.8.3. protection from virus transmission, hacking, and any other harmful actions of third parties; and
6.8.4. the maintenance of any backups or other data protection measures specified in the documentation.
Any copies of the Software or Documentation you make must include the same proprietary notices that appear on or in the same as provided to you.
6.9. You further acknowledge responsibility for the implementation and enforcement of any data protection, data security and data confidentiality measures which are appropriate to your use of the Mirada Medical Products, and for the appropriate and correct use of any such measures which form part of the Computer’s operating system.
6.10. If your Licence terms allow you to Use the Software at locations or on Computers or workstations other than those set out in the quotation, you shall maintain accurate and up to date records of where the Software is being Used under this Licence, and make these records available to the Licensor on request.
6.11. You undertake that, during any Maintenance and Support Term and for a period of one (1) year following termination of such Maintenance and Support Term, you will not employ, sub-contract or otherwise engage employees or contractors of, or for, the Licensor or Mirada Medical.
6.12. If the price payable by you for this Licence is dependent on the level of your Usage of the Mirada Medical Products, then you shall report such Usage to the Licensor as requested by the Licensor at intervals stipulated in the Quotation. You hereby agree to the monitoring and auditing of your usage of the Mirada Medical Products by the Licensor and/or Mirada Medical for the purposes of verifying any amounts payable and compliance with this Licence.
6.13. You will pay for your Use of the Software as set out in the Quotation on the dates when due together with any other sums identified in the Quotation. Failure to make payments on the due dates shall constitute a material breach of this Agreement entitling Mirada to give notice of termination.
6.14. If the Quotation includes a Fair Use Estimate Licensee shall report its Usage in accordance with the provisions of clause 6.12. If Licensor’s usage exceeds the Fair Use Estimate by more than 20% in any complete calendar year Licensor and Licensee shall negotiate and agree a payment of additional fees to reflect the additional Use by Licensee, which in the absence of any other agreement, shall be calculated pro rata to the fees calculated in the Quotation in reliance on the Fair Use Estimate
7. Term and Termination
7.1. In respect of Subscription Licences and any provision of Mirada Medical Services only, subject at all times to any earlier termination in accordance with the provisions of this Licence and as set out in the Quotation, this Licence shall, unless otherwise terminated under this clause 7, commence on Acceptance by you and shall continue for the Initial Subscription Term. And for Mirada Medical services:
a) Supplied under a Perpetual Agreement for the Warranty Period; and
b) Supplied under a Subscription Agreement for the Subscription Terms
Thereafter, this Licence shall as further stipulated in the Quotation be automatically renewed for successive periods of 12 months (each a “Renewal Term”), unless either party notifies the other party of termination, in writing, at least 60 days:
a) In the case of Subscription Agreements before the end of the Initial Subscription Term or any Renewal Term, in which case this Licence shall terminate upon expiry of the applicable Initial Subscription Term or Renewal Term. or
b) In the case of Mirada Medical Services supplied under a perpetual Agreement, before the end of the Warranty Period or any renewal Term in wehich case the agreement for provision of Mirada Medical Services shall terminate on expiry of the applicable Warranty Period or Renewal Term
c) Unless it is further renewed under this clause or terminated earlier in accordance with this Licence, this Licence shall terminate automatically without notice at the end of the Renewal Term.
Unless otherwise agreed in writing, Licensor reserves the right to increase subscription prices by a reasonable amount on any renewal. You shall have the right to reject the increase and terminate the Subscription Licence from the date of the proposed price increase on condition you notify Mirada Medical in writing prior to the date of the proposed increase becoming effective.
In respect of Perpetual Licences only the rights shall be granted in perpetuity subject to any earlier termination in accordance with the provisions of this clause 7.
7.2. Without prejudice to any other rights or remedies available to it, the Licensor may at any time on 30 days’ notice terminate this Licence, and the Licence herein and the obligation to provide Maintenance and Support and any other Mirada Medical Services shall automatically terminate, if you do not abide by the terms and conditions contained herein including, without limitation, your obligation to make payment when due. Upon termination, you shall immediately cease Using the Mirada Medical Products and shall return to the Licensor any and all copies of the Mirada Medical Products including any and all Software, Software Products, any and all uninstalled Upgrade, as well as the Documentation and all of their component parts in your possession or under your control
7.3. The Licensor may IMMEDIATELY AND WITHOUT NOTICE terminate this Licence and any and all Maintenance and Support of the Mirada Medical Products in the event of your bankruptcy or insolvency, in the event a receiver or administrative receiver is appointed over all or any part of your undertaking or assets or if you have passed a resolution for winding up (other than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction has made an order to that effect or you have entered into any voluntary arrangement with your creditors or shall become subject to an administration order or shall cease to carry on business, or any event analogous to any of the foregoing events has occurred in any other jurisdiction.
8. Limited warranty / limitation of remedies
8.1. The Licensor warrants for the Warranty Period:-
8.1.1. that it has the right to grant the Licence rights hereunder; and
8.1.2. that the Mirada Medical Products, as updated and when properly Used, will perform substantially in accordance with the functional specification for the Mirada Medical Products as contained in the applicable Documentation for the purposes intended, and the Software media will be free from material defects in materials and workmanship.
8.1.3. that any Bespoke Modelling Services shall be provided in compliance with the provisions of Schedule 3 and any warranty and limitations set out in that Schedule.
Although the Licensor uses all reasonable efforts to ensure that the Mirada Medical Products are free from viruses, no warranty is given or is to be implied that the Mirada Medical Products and distribution media will be free from viruses.
8.2. Any warranty claims by you shall be made promptly in writing and shall state the nature and details of the claim, the date the cause of the claim was first observed and the serial number of the Mirada Medical Products concerned, if any.
8.3. The Licensor’s, entire liability and your exclusive remedy for breach of warranty shall be, at the Licensor’s option, either (a) the correction or workaround by the Licensor of defects within a reasonable time, or (b) should such correction or workaround prove neither satisfactory or practical, termination of this Licence and refund of the price paid less a reasonable amount to reflect any period of Use of the Mirada Medical Products by you up to the date of such termination.
8.4. This Limited Warranty is void if failure of the Mirada Medical Products has resulted from accident, abuse, or misapplication of it, an unapproved or unauthorised Use of the Mirada Medical Products, or a modification of the Mirada Medical Products in any manner or by any person not approved in writing by the Licensor. The remedies described in this clause shall be available in respect of any replacement Software for the remainder of the original warranty period.
8.5. To the maximum extent permitted by applicable law, the Licensor disclaims and excludes all other warranties and conditions, either express, implied by statute, arising from course of dealing or usage of trade or otherwise, including, but not limited to, implied warranties of satisfactory quality, merchantability, fitness for a particular purpose, title, and non-infringement, with regard to the Mirada Medical Products and any Bespoke Modelling Service, and the provision of or failure to provide support services. This limited warranty gives you specific legal rights. You may have others, which vary from state/jurisdiction to state/jurisdiction.
8.6. The Licensor does not warrant that the Mirada Medical Products will meet your requirements, that the operation of the Mirada Medical Products will be uninterrupted or error-free, or that all errors in the Mirada Medical Products will be corrected.
8.7. To the maximum extent permitted by applicable law:
8.7.1. The Licensor disclaims and excludes all other warranties and conditions, either express, implied by statute, arising from course of dealing or usage of trade or otherwise, including, but not limited to, implied warranties of satisfactory quality, merchantability, fitness for a particular purpose, title, and non-infringement, with regard to the Mirada Medical Products, and the provision of or failure to provide support services. This limited warranty gives you specific legal rights. You may have others, which vary from state/jurisdiction to state/jurisdiction;
8.7.2. in no event shall the Licensor be liable for any loss of data, damaged files, loss of profits, loss of revenue, loss of anticipated savings or benefits, business interruption, loss of business information, or any other pecuniary loss (whether arising directly or indirectly) or any special, incidental, indirect, or consequential damages whatsoever arising out of the Use of or inability to Use the Mirada Medical Products, the provision of or failure to provide support services or any breach of this Licence by the Licensor whether in contract, tort (including negligence) or otherwise, even if the Licensor has been advised of the possibility of such damages;
8.7.3. The Licensor shall not be liable for any failure to comply with its obligations to the extent caused by any failure by you to comply with your obligations under this Licence.
8.8. Subject to clauses 6.6, 6.7, 8.7 and 9, the Licensor’s entire liability under any provision of this Licence shall be limited to the amount actually paid by you for the pursuant to this Licence; provided, however, if you have entered into a Service Level Agreement, the Licensor’s entire liability regarding support services shall be governed by the terms of that agreement. The foregoing limitations of liability are independent of any exclusive remedies for breach of warranty set forth in this Licence, and shall survive and apply notwithstanding the failure of essential purpose of any remedies specified herein.
8.9. Notwithstanding clauses 6.6, 6.7, 8.7 and 8.8, the Licensor does not exclude any liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation or any other liability which cannot be excluded or limited by applicable law.
9. High risk activities
9.1. The Mirada Medical Products are not fault-tolerant and are not designed, manufactured or intended for use or resale in hazardous environments requiring fail-safe performance, in which the failure of the Mirada Medical Products could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). The Licensor, specifically disclaims any and all express or implied warranty of fitness for a particular purpose as mentioned above, including High Risk Activities.
10. Compliance with Licences
10.1. If you are a business or organisation, you agree that upon request from the Licensor, you will within thirty (30) days fully document and certify that use of any and all Mirada Medical Products at the time of the request is in conformity with your valid Licences from the Licensor.
11. Compliance with Laws and Export Controls
11.1. You shall comply with all applicable laws and regulations, including those relating to this Licence and to the testing, production, importation, transportation, packaging, labelling, use, sale, sublicensing or other distribution of the Mirada Medical Products, or otherwise applicable to your activities hereunder.
11.2. You shall not export, directly or indirectly, any technical data acquired from Mirada Medical under this Licence (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations, including, but not limited to the United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export Licence or other governmental approval without first obtaining such Licence or approval.
12. General provisions
12.1. All sums payable under this Licence are stated exclusive of value added tax or other applicable sales tax, which shall be payable by you in addition to the principal amount, at the rate and in the manner prescribed by law. You shall pay such amounts free and clear of any deduction or withholding (save as required by law), provided that if any deduction or withholding is required by law to be made from any payment due from you under this Licence, the amount of such payment shall be increased to an amount which will, after such deduction or withholding has been made, leave Mirada Medical with the same amount as it would be entitled to receive under this Licence in the absence of any such deduction or withholding.
12.2. If you fail to make any payment due to Mirada Medical under the Licence by the due date for the relevant payment, then, without limiting Mirada Medical’s other rights and remedies:
12.2.1. you shall pay interest on the overdue amount at the rate of 4% a year above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. You shall pay the interest together with the overdue amount; and
12.2.2. Mirada Medical may, without liability to you, suspend your Use of the Mirada Medical Products and/or the provision of the Maintenance and Support, and Mirada Medical shall be under no obligation to provide the Use of the Mirada Medical Products and any Maintenance and Support while the invoice(s) concerned remain unpaid.
12.3. This Licence is personal to you and you shall not assign, sub-Licence or otherwise transfer this or deal with this Licence or any rights or obligations under it in whole or in part.
12.4. If any part of this Licence is found void and unenforceable, it will not affect the validity of the balance of the Licence, which shall remain valid and enforceable according to its terms.
12.5. This Licence shall not prejudice the statutory rights of any party dealing as a consumer.
12.6. This Licence may only be modified in writing signed by an authorised officer of each party.
12.7. The Licensor may license Updates to you with additional or different terms.
12.8. This Licence (and any documents referred to in it, including the Licensor’s quotation where applicable) constitutes the entire agreement between the Licensor and you relating to the Mirada Medical Products and it supersedes any prior statements, representations, discussions, assurances, warranties, undertakings, communications or advertising relating to the Mirada Medical Products, but the parties agree that neither (a) Schedule 2 nor (b) Schedule 3 (Bespoke Modelling Service Terms) shall form part of this Licence except where applicable under their respective terms. You agree that you shall have no remedies in respect of any statement, representation, assurance, warranty, undertaking, communication or advertising (whether made innocently or negligently) that is not set out in this Licence. You agree that you shall have no claim for innocent or negligent misrepresentation based on any statement in this Licence.
12.9. No failure by a party in exercising any right, power or privilege hereunder shall constitute a waiver by such party of any such right, power or privilege, nor shall any single or partial exercise thereof preclude any further exercise of any such right, power or privilege.
12.10. Mirada Medical has the right to enforce any term of this Licence on behalf of itself or as if it were the Licensor. No other person who is not a party to this Licence has any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Licence but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
12.11. Unless otherwise explicitly specified in Quotation this Licence and any disputes arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) is governed by the laws of England and you hereby submit to the non-exclusive jurisdiction of the English courts. [Drafting Note: Provision to be varied for US clients sold out of Colorado or another state where Mirada has presence and agreements sold out of France if English Law is rejected in those territories]
12.12. IN RESPECT OF LICENSEES IN THE UNITED STATES OF AMERICA YOU AND THE LICENSOR AGREE THAT NEITHER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT NOR ANY VERSION THEREOF ENACTED OR OTHERWISE ADOPTED BY ANY STATE IN ANY FORM (“UCITA”), SHALL APPLY TO THIS Licence. TO THE EXTENT THAT UCITA MAY BE DEEMED APPLICABLE, YOU AND THE LICENSOR AGREE TO OPT OUT OF THE APPLICABILITY OF UCITA TO THE MAXIMUM EXTENT PERMITTED THEREBY.
13. Third Party Licences
13.1. The Mirada Medical Products may include third party proprietary components which may be separately licensed. As a condition of those permissions and Licences, Mirada Medical is required to distribute the components subject to specific terms and conditions, which may be different from or additional to those contained herein for the Mirada Medical Products.
13.2. Any software provided along with the Mirada Medical Products that is associated with a separate user Licence agreement is licensed to you under the terms of that Licence agreement in addition to the use restrictions set out in this Licence. You understand and agree that acceptance of this Licence also confirms your acceptance of the applicable provisions for use of such third party components.
13.3. Copies of applicable Licences are available on request.
13.4. If you breach the applicable provisions of any third party’s Licence terms then that shall also be considered a material breach of this Licence.
Schedule 1 –Maintenance and Support
In the event of any conflict between this Schedule and any other part of the Licence, the terms of this Schedule shall take precedence.
1. Maintenance and Support
Maintenance and Support shall comprise of the following:
• Dedicated telephone support during Licensor’s office hours.
• Dedicated email support during Licensor’s office hours.
• Dedicated on-site support (as required, and at the sole discretion of Licensor).
• Updates and feature enhancements releases (but shall not include Upgrades).
• Electronic, telephone or in-person response to deal with any problem or software bug in any Software Product that is under warranty or Service level agreement. Such response shall attempt (i) to identify the nature and extent of the problem, (ii) if appropriate, to obtain a copy of magnetic media, hard copy printout or electronic file forwarded over the Internet containing the problem or software bug to be forwarded promptly to the Licensor electronically or by facsimile, and (iii) to advise you in the application of any recommended solution or workaround to such problem or bug. Licensor is committed to responding to all customer support enquiries within 4 working hours of receiving the enquiry provided the enquiry is received during the office hours operated by Licensor in the territory in which the User operates and otherwise within 4 hours of commencement of the next working day.
Not included as part of Maintenance and Support:
• Upgrades and new product releases must always be paid for as additional items.
• Training and onsite installation is not included and must be purchased as additional items.
Mirada Medical shall be entitled, on prior notice to you, to make changes to the Maintenance and Support, provided such changes do not have a material adverse effect on your business operations.
Mirada Medical shall have no obligation to provide the Maintenance and Support where faults arise from:
• misuse, incorrect use of or damage to the Software; or
• failure to maintain the necessary environmental conditions for use of the Software, in particular those requirements notified by Mirada Medical to you; or
• use of the Software in combination with any equipment or software not provided or approved by Mirada Medical, or any fault in any such equipment or software; or
• relocation or installation of the Software by any person other than Mirada Medical or a person acting under Mirada Medical’s instructions; or
• any breach of your obligations under Licence.
2. Term and Termination
In respect of Perpetual Licences, the Maintenance and Support shall automatically terminate on expiry of the Warranty Period, unless you have agreed with Mirada Medical for Purchased Maintenance and Support to be provided, in which case the Purchased Maintenance and Support shall continue during the Maintenance and Support Term. The Purchased Maintenance and Support and any other Mirada Medical Services shall renew in accordance with the provisions of clause 7 of the Licence. The appropriate fee for the Purchased Maintenance and Support will become payable on the date of renewal of the Maintenance and Support Term.
In respect of Subscription Licences, the Maintenance and Support will automatically terminate on termination or expiry of the Subscription Term unless renewed by the parties in accordance with clause 7 of the Licence.
3. Limited warranty / Limitation of remedies for Maintenance and Support
Mirada Medical shall perform the Maintenance and Support with reasonable care and skill.
If, during the Warranty Period, Subscription Term or Maintenance and Support Term (as applicable), Licensor receives written notice from you of any breach by Licensor of this Schedule, Mirada Medical shall, at its own option and expense, remedy that breach within a reasonable period following receipt of such notice, or, in respect of a Purchased Maintenance and Support, terminate such Purchased Maintenance and Support immediately on written notice to you and repay to you all fees which you have paid to Licensor under this Schedule during the year in which the termination occurs, less a charge for the Maintenance and Support performed up to the date of termination.
No representation or warranty is given by Licensor that all faults will be fixed or will be fixed within a specified period of time.
To the maximum extent permitted by applicable law, Licensor disclaims and excludes all other warranties and conditions, either express, implied by statute, arising from course of dealing or usage of trade or otherwise, including, but not limited to, implied warranties of satisfactory quality, merchantability, fitness for a particular purpose, title, and non-infringement, with regard to the Maintenance and Support, and the provision of or failure to provide support services. This limited warranty gives you specific legal rights. You may have others, which vary from state/jurisdiction to state/jurisdiction.
Mirada Medical’s entire liability in respect of the Purchased Maintenance and Support shall be limited to the amount actually paid by you for the Purchased Maintenance and Support in the 12 months prior to your claim(s).
The foregoing limitations of liability are independent of any exclusive remedies for breach of warranty set forth in this Schedule, and shall survive and apply notwithstanding the failure of essential purpose of any remedies specified herein. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you.
4. Price increase
Licensor shall be entitled to increase the Purchased Maintenance and Support fee on each anniversary of the Maintenance and Support Term. Any such increase shall be notified to you at least 30 days prior to such anniversary. You shall have the right to reject the increase and terminate the Purchased Maintenance and Support from the point of the proposed price increase on condition you notify Mirada Medical in writing prior to the date of the proposed increase. .
Schedule 2 – Supply of Hardware
The terms and conditions of this Schedule 2 also apply if the Licensor is Mirada Medical and Mirada Medical has agreed to supply Mirada Medical Hardware (as defined below) to you as specified in the relevant quotation.
In the event of any conflict between this Schedule and another part of the Licence, the terms of this Schedule shall take precedence.
Capitalised terms in this Schedule shall have the meaning given in the Licence, unless otherwise defined below:
“Manufacturer’s Warranties” means the warranties given by any third party manufacturer in relation to any item of the Mirada Medical Hardware.
“Mirada Medical Hardware” means all Hardware to be supplied by Mirada Medical as set out in the relevant Quotation.
2 Specification of Mirada Medical Hardware
Mirada Medical shall recommend appropriate specifications for the Mirada Medical Hardware to enable you to operate the Mirada Medical Products licensed under this Licence.
Mirada Medical shall be entitled to procure such Mirada Medical Hardware as it deems appropriate.
Mirada Medical will deliver the Mirada Medical Hardware to the location set out in the Quotation or such other location as Mirada Medical may agree at any time after Mirada Medical notifies you that the Mirada Medical Hardware is ready. Delivery shall be completed when Mirada Medical delivers the Mirada Medical Hardware to you.
Mirada Medical will take reasonable steps to meet the delivery date set out on the quotation or as otherwise agreed with you. However, occasionally delivery may be affected by factors beyond Mirada Medical’s control (e.g. adverse weather or delivery delay from suppliers) and so cannot be guaranteed. Mirada Medical will inform you if it becomes aware of an unexpected delay and will arrange a new delivery date with you.
Mirada Medical shall have no liability to you for late delivery.
You confirm that you take full responsibility for installation of the Mirada Medical Hardware. Mirada Medical may provide guidance and/or assistance with installation of the Mirada Medical Hardware or the Mirada Medical Products on the Mirada Medical Hardware, but Mirada Medical shall not be liable to you for any failure to do so or if such guidance or assistance is not effective.
4 Payment, Risk and Title
You shall make payment for the Mirada Medical Hardware as set out in the Quotation, or if not stated, within 7 days of delivery.
Risk in the Mirada Medical Hardware shall transfer to you on delivery of the Mirada Medical Hardware to you.
Title to the Mirada Medical Hardware shall transfer to you on full payment by you for the Mirada Medical Hardware, its delivery and any Mirada Medical Products licensed to you pursuant to the Quotation.
5 Mirada Medical Hardware Warranty and Limitation of Liability
In respect of the Mirada Medical Hardware Mirada Medical warrants that:
(a) it shall use reasonable skill and care in recommending the specification for the Mirada Medical Hardware (this warranty shall not apply to the extent that you request different Mirada Medical Hardware or Hardware); and
(b) the Mirada Medical Hardware will be new (except where otherwise specified in the quotation).
As far as it is able, Mirada Medical will pass on to you the benefits of any Manufacturer’s Warranties.
Except as provided above, Mirada Medical makes no representations or warranties and, to the maximum extent permitted by law, hereby disclaims any and all representation, warranties and conditions in respect of the Mirada Medical Hardware, including, but not limited to, any implied warranties of satisfactory quality, merchantability or fitness for a particular purpose.
Except to the extent not permitted by law, Mirada Medical’s total liability to you in respect of all losses arising under or in connection with the supply of Mirada Medical Hardware, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach by Mirada Medical, its employees, agents or subcontractors shall not exceed the sums paid by you to Mirada Medical for the Mirada Medical Hardware.
6 Hardware Maintenance
You confirm that you take full responsibility for maintenance of the Mirada Medical Hardware, which may include, without limitation, its security and anti-virus protection and any operating system or other items installed on it. Mirada Medical may provide guidance and/or assistance with maintenance of the Mirada Medical Hardware, but Mirada Medical shall not be liable to you for any failure to do so or if such guidance or assistance is not effective.
In order to avoid any incompatibility issues with the Mirada Medical Products, you shall not install or use any software on Mirada Medical Hardware which has not been recommended or approved by Mirada Medical (such approval not be unreasonably withheld or delayed). Mirada Medical hereby grants approval for the use of anti-virus software, updates to existing software on the Mirada Medical Hardware and software used for maintenance (e.g. for back-up purposes).
Mirada Medical shall have no liability to you for Mirada Medical Product performance issues related to software which has not been recommended or approved by Mirada Medical.
7 Remote Access to Mirada Medical Hardware
You agree that access to any Mirada Medical Hardware from outside the Mirada Medical Hardware network is your sole responsibility.
Schedule 3- Bespoke Modelling Service Terms
The terms of this Schedule 3 shall only apply in respect of Quotations which include DLC Expert Deep Learning Modelling Services