INCORPORATED SOFTWARE LICENSE AGREEMENT AND WARRANTY DISCLAIMER
WHEREAS Medigma Biomedical GmbH has the right to use and worldwide distribute the Software, as herein defined; and wishes to determine the Terms and Conditions of the license to use the Software; and disclaims any obligation and/or warrantee not expressly granted to the End-User; and
WHEREAS the End-User, as herein defined, by using and/or installing the Software hereby agrees and accepts all terms below.
Now, therefore, it is agreed as follows:
- “Software” refers to the software supplied with the MIOS intraoral scanner, to provide an immediate imaging of the scanned area. The high-resolution scan files can then be exported for the user’s convenience, to be used by any dental laboratory or appliance provider.
- “MIOS” is an intraoral scanner manufactured by MEDIGMA for digital impression taking, based on 3D video technology allowing to capture and simultaneously view a picture of the oral anatomy. It is constituted of a small and ergonomic handpiece that includes a 3D camera. The handpiece is connected to a PC, in which the Software is installed.
- “MEDIGMA” or “us” or “we” refer to Medigma Biomedical GmbH, who is the authorized distributor of this software.
- “End-User” or “You” refer to a person or entity who purchased a license to use the Software.
- Use by Healthcare Professionals Only
The Software is intended for use by medical professionals and healthcare providers trained in the operation of this product, which should exercise their own judgment in determining whether a particular product or procedure is appropriate for their practice or their patients.
MEDIGMA disclaims any liability, expressed or implied, and bears no responsibility for any direct, indirect, punitive or other damages, arising out of or in connection with any errors in professional judgment or practice in CONNECTION WITH the use OF THE software AND ANY TREATMENTS AND/OR PROCEDURES AND/OR DIAGNOSIS THAT ARE MADE BY THE end-USER IN CONNECTION WITH THE USE OF THE software.
MEDIGMA hereby grants to the End-User a non-exclusive, non-transferable license to install and use the Software only for the purpose of providing high-resolution scan files ONLY when used with the MIOS intraoral scanner (herein “Purpose”). The Software may only be used with an inserted USB dongle which is licensed and delivered by MEDIGMA, its affiliates or authorized resellers. The End-User may install and use a copy of the Software on one (1) compatible computer.
- No Transfer of License
End-User may not sub-license or otherwise distribute the Software to any other person or entity. Any such sub-license, assignment or distribution shall be null and void.
The End-User may NOT adapt, modify, translate, sublicense, rent, lease, loan, resell, assign or otherwise distribute copies of the Software to any third party. The End-User may NOT create derivative works based on the Software or any part thereof. The End-User may NOT de-compile, reverse engineer, disassemble or otherwise reduce the Software to a human readable form.
- Confidential Information
The Software and its documentation (“Confidential Information”) are the sole and exclusive trade secrets and propriety information of MEDIGMA. End-User may use the Confidential Information only for the Purpose. The End-User acknowledges and undertakes to take all reasonable measures to keep the Confidential Information in trust and confidence for MEDIGMA, and: (i) not make any copies of the Confidential Information; (ii) not disclose Confidential Information (or any part of it) to any third party whether or not for consideration; and (iii) not use the Confidential Information or any part of it for any purpose other than the Purpose.
The obligations set forth above shall not apply with respect to information that: (i) is in the public domain at the time of disclosure or subsequently becomes part of the public domain, except by the breach by the End-User; (ii) is received from a third party, provided that such information was not obtained by said third party directly or indirectly in breach of obligations of confidentiality; or (iii) the End-User becomes legally compelled to disclose, provided that the End-User will promptly notify MEDIGMA, so that MEDIGMA may seek a protective order or other appropriate remedy.
- Security of End-User Data
The End-User acknowledge that any information and data sent by End-User may be stored on MEDIGMA’s computer server. MEDIGMA reserves the right, and the End-User authorize MEDIGMA, to use such information and data and process it for the purpose of monitoring and improving of its services. MEDIGMA implement appropriate technical and organizational measures to protect such information and data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access for third parties outside MEDIGMA and against other unlawful forms of processing. Nevertheless, MEDIGMA shall not be liable for any unlawful circulation of the stored information and data as result of hacking or other illegal actions beyond Medigma’s reasonable control.
- Representation and Warranties
THIS SOFTWARE IS PROVIDED “AS IS” AND ANY EXPRESSED OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, RESULTS, SECURITY, NON-INFRINGEMENT, INTEGRATION, QUIET ENJOYMENT, AND SATISFACTORY QUALITY ARE DISCLAIMED. IN NO EVENT SHALL MEDIGMA, its affiliates and authorized resellers BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF the SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
The Software code, as well as any outputs of the Software’s regular use such as video streams, models, scanned pictures, diagrams and the likes, may include technical and other inaccuracies and errors. MEDIGMA does not make any assurance with regard to the accuracy of such results or outputs that drives from any use of the Software. MEDIGMA makes no representation about the suitability of the information contained in the video streams, models, scanned pictures, diagrams and any other outputs of the Software’s regular use for any purpose. All such outputs of the Software are provided “AS IS” without warranty of any kind.
MEDIGMA HEREBY DISCLAIMs ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS code and OUTCOMES, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE or TITLE. IN NO EVENT SHALL MEDIGMA BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ALL OUTPUTS AVAILABLE FROM THE software.
- LIMITATION OF REMEDIES
IN NO EVENT WILL MEDIGMA, OR MEDIGMA’S DIRECTORS, OFFICERS, EMPLOYEES, OR authorized DISTRIBUTORS and resellers BE LIABLE TO THE END-USER FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT, SPECIAL OR EXEMPLARY (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR ACCOMPANYING DOCUMENTATION, EVEN IF MEDIGMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, MEDIGMA’S LIABILITY TO THE END-USER (IF ANY) FOR ACTUAL DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO, AND IN NO EVENT SHALL EXCEED, THE AMOUNT ORIGINALLY PAID TO MEDIGMA FOR THE LICENSE OF THE SOFTWARE.
- Technical Support and Enhancements
- Technical Support will be supplied free of charge during the warranty period (for 12 months following the purchase of the Software).
- From time to time MEDIGMA may, at its sole discretion, advise the End-User of updates, upgrades, enhancements or other improvements or new releases of the Software (collectively, “Enhancements”), and may license the End-User to use such Enhancements. Such Enhancements may require a fee to be paid by End-User, as such fee may be established by MEDIGMA from time to time. All such enhancements to the Software provided to the End-User shall also be governed by the terms of this Agreement.
- Except as expressly indicated herein, MEDIGMA shall have no obligation to provide any: maintenance, support, training, installation assistance or Enhancements, unless there is a separate agreement signed by both MEDIGMA and End-User.
End-User’s rights to use the Software terminate immediately if End-User does not comply with any term of this Agreement. In such case MEDIGMA reserve the right to disable the Software, and reactivation fee may be applied.
This Agreement will be governed by and construed in accordance with the laws of the Federal Republic of Germany.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable to any extent under applicable law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.
Any notices or other considerations to be sent to MEDIGMA must be sent by certified mail to Medigma Biomedical GmbH, Siemensstrasse 10, 78564 Wehingen, Germany.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior proposals, agreements, representations, statements and undertakings are hereby expressly canceled and superseded.
MEDIGMA will not be bound by any modification, additions or deletions to these Terms and Conditions, unless MEDIGMA has signed a written agreement accepting such changes in the Terms and Conditions. Any proposed modification, additions or deletions by any person or entity are hereby rejected and of no effect.
BY ACCEPTING THIS SOFTWARE, THE END-USER AGREES TO THE SOLE JURISDICTION AND VENUE OF THE COURTS LOCATED IN Wehingen, Germany. THE END-USER ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.