IMAGE LICENSE AGREEMENT
THE TERMS AND CONDITIONS CONTAINED HEREIN CONSTITUTE A LEGAL AGREEMENT.
THIS ALERE IMAGE LICENSE AGREEMENT (“AGREEMENT”) CONTAINS THE ENTIRE AGREEMENT BETWEEN YOU AND ALERE INC. (“ALERE”) WITH RESPECT TO THE TERMS AND CONDITIONS DESCRIBED HEREIN. BY LOGGING ON TO ALERE IMAGE YOU ACKNOWLEDGE THAT (1) YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT AND ARE DOING SO AND (2) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU AND ALERE SHALL BE BOUND BY THESE TERMS AND CONDITIONS AND ALL MODIFICATIONS AND ADDITIONS.
1. Background. This Agreement includes the following: the Alere Image System (“Alere Image”) and associated components (including hardware components if applicable). Alere Image and licensed Software Module(s) (excluding linked sites, if any) are controlled by Alere Inc., incorporated in Delaware, U.S.A., and are protected by worldwide copyright laws. The Alere Image website can be accessed from various countries around the world. As each of these countries has laws that may differ from those of the United States of America, by accessing the website both you and Alere agree that the laws of the United States shall apply to all matters arising from or relating to the use and content of the website. You also agree and hereby submit to the non-exclusive jurisdiction and venue of the courts of the United States with respect to such matters. Any claims arising from your use of this website or your use of any content housed on this website must be brought within one (1) year of the date of the event or occurrence giving rise to the claim.
2. Content. The information on Alere Image and associated components are included in good faith but are for general informational purposes only. Alere Image should not be relied on for any specific purpose and no representation or warranty is given in regards to its accuracy or completeness. Alere reserves the right to make any changes or corrections to Alere Image and its content as and when we consider it appropriate and without notice.
3. License Grant. Subject to the terms and conditions of this Agreement, Alere grants you a personal, non-transferable, non-exclusive, license to Alere Image and applicable user documentation (the “Documentation”), as well as to any applicable Software Module(s), limited to authorized sites as set forth therein.
You grant Alere a limited, non-exclusive license to access and use your de-identified point-of-care data (the “Data”) for the following purposes: (i) aggregating of your Data with data provided by other customers to allow comparisons for benchmarking and (ii) production of future benchmarking services provided by Alere. Alere agrees that your Data shall only be used for the purposes set forth above, and that the individual results of the benchmarking of your performance as contemplated herein shall not be shared, published or distributed to any party other than you. The access license granted to Alere pursuant to this paragraph shall be coterminous with the term of this Agreement; the use license granted to Alere pursuant to this paragraph shall survive any termination of this Agreement.
You may not (i) permit any third party to use Alere Image; (ii) modify or change Alere Image, any of its components or configuration; or (iii) decompile, disassemble or otherwise reverse engineer any pieces of Alere Image.
5. Scope of Maintenance and Support Services. During the term of this Agreement, Alere may provide the following maintenance and support services to you:
(a) Corrections of substantial defects in Alere Image and/or Software Module(s) so that Alere Image and/or Software Module(s) will operate in accordance with Alere’s Documentation.
(b) Periodic updates to Alere Image and/or Software Module(s).
(c) Telephone support between the hours of 9am and 4pm GMT, Monday to Friday, excluding public holidays, to assist you in using Alere Image/Software Module(s) and troubleshooting issues.
(d) Remote system support to permit training, diagnostic troubleshooting and delivery of periodic updates; provided, however that such remote support can only be provided if you retain a technical method of remote access that is fully supported by Alere (i.e. site-to-site VPN with the ability to use a remote console access such as Remote Desktop). Qualification of remote access and support technology options shall be determined by current Alere standard support practices and are subject to change.
(e) Support of all Alere-supplied components, including repair, replacement, or exchange of components that are not functioning properly.
6. Services Not Included. Standard maintenance services do not include:
(a) Work performed by Alere, following completion of the Alere Image configuration and your acceptance, to accommodate: (i) interference of third-party software that you loaded; (ii) changes in your network that disable Alere Image and require Alere intervention e.g., changing IP addresses; (iii) your specified or requested additions, changes or modifications to Alere’s internal network infrastructure, security standards, or deployed software packages to accommodate or maintain remote access to your network for the provision of remote system support access to Alere Image; (iv) remote system support for training, diagnostic troubleshooting and the provision of periodic updates when no fully supported and mutually agreeable technical method of secure remote access is available.
(b) Customer specified enhancements that are not normal updates or upgrades to Alere Image. For the sake of clarity, this includes but is not limited to additional on-site support and/or training and maintenance and support of customer supplied hardware, third-party software and associated software components.
(c) The repair, correction, or replacement of Alere Image when such repair, correction or replacement is due, directly or indirectly, to: (i) your failure to follow operation or maintenance instructions as set forth in Documentation; (ii) the use of media, supplies, or consumable supplies which are not compatible with Alere Image maintained hereunder; (iii) the unauthorized repair, maintenance, modification or alteration of Alere Image unless specifically approved in writing by Alere in advance; (iv) hardware or software not supplied or authorized by Alere; (v) the abusive or negligent acts or omissions by you; (vi) power failure, surges or electrical damage, lightning, fire or water damage, accident or disruptive events reasonably within your control; (vii) air conditioning failure, humidity control failure, or a corrosive atmosphere harmful to electronic circuitry; (viii) damage during transportation caused by you; (ix) your failure to maintain any site specifications specified by Alere; (x) changes in your operation standards that would require Alere to modify its standard configurations or procedures, or (xi) other causes clearly external to Alere Image and clearly not attributable to Alere, including but not limited to any acts of nature.
(d) Data backup systems, hardware, software or processes for the storage and retrieval of your data to/from systems or devices other than those provided by Alere as part of this Agreement.
7. Intellectual Property. Alere Image and licensed Software Module(s) (as well as Alere supplied hardware components where applicable) are proprietary to Alere and all rights, title and interests thereto shall remain with Alere. All applicable rights to patents, copyrights, trademarks and trade secrets in Alere Image and/or Software Module(s), or any modifications made at your request, shall be regarded as Alere intellectual property. Additionally, Alere will acquire and retain all licenses for any Third-Party Software provided to you in connection with Alere Image and/or Software Module(s). You may not sell, transfer, sublicense, publish, disclose, display or otherwise make available Alere Image and/or Software Module(s) (or copies thereof) to others. All copies made by you of Alere Image, Software Module(s), and other programs developed hereunder, including translations, compilations, partial copies with modifications and updated works, are the property of Alere. Violation of any provision of this paragraph shall be the basis for immediate termination of this Agreement and the license(s) granted hereunder.
8. Warranties. Alere represents and warrants that when installed, all operational features of Alere Image will conform to Alere’s current published specifications and will be free of defects which substantially affect system performance. Alere represents and warrants that any physical media containing Alere Image will be free of any code, software routine or programming instruction, hardware component or combination of the above which is intended to damage, interfere with or otherwise adversely affect computer programs or erase software, hardware or data without your approval, disable Alere Image or your computer system with the passage of time or under the control of any person other than you (whether created as disabling code, time bomb, back door, or drop dead device), or any other viruses, worms, or other non-beneficial code without your prior written approval. Furthermore, Alere represents and warrants that it has taken all necessary precautions to avoid creating, delivering or transmitting a virus or worm to you in connection with the delivery, configuration, support or maintenance of Alere Image including any updates, bug fixes, patches, or other code, under this Agreement.
Alere will ensure that Alere Image is in compliance with all applicable federal and state laws, rules and regulations. You must notify Alere in writing of any suspected non-compliance issue and Alere shall respond within thirty (30) days.
If Alere Image is determined by Alere to be defective, Alere’s sole obligation under this Agreement is to remedy such defect in a manner consistent with Alere’s regular business practices. In the event that Alere is unable to remedy such defect within a reasonable amount of time, Alere may terminate the license(s) granted hereunder by providing written notice to you.
WARRANTIES SET FORTH HEREIN ARE THE ONLY WARRANTIES MADE BY ALERE. ALERE MAKES AND YOU RECEIVE NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTIES ARE MADE REGARDING THE RESULTS OBTAINED FROM ALERE IMAGE/SOFTWARE MODULE(S), THAT ALL ERRORS IN ALERE IMAGE/SOFTWARE MODULE(S) WILL BE CORRECTED, OR THAT THE FUNCTIONALITY OF ALERE IMAGE/SOFTWARE MODULE(S) WILL MEET YOUR REQUIREMENTS. ALERE SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS SUCH LIABILITY IS THE RESULT OF NEGLIGENCE OR MISCONDUCT BY ALERE, THESE STATED EXPRESS WARRANTIES ARE IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF ALERE FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF ALERE IMAGE/SOFTWARE MODULE(S).
ALERE IS NOT ENGAGED IN RENDERING MEDICAL, CLINICAL OR OTHER PROFESSIONAL SERVICES OR ADVICE. IF MEDICAL OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICES OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. YOU ASSUME ALL RESPONSIBLITIES AND OBLIGATIONS WITH RESPECT TO ANY DECISIONS MADE OR ADVICE GIVEN AS A RESULT OF THE USE OF ALERE IMAGE/SOFTWARE MODULE(S), AND FOR THE SELECTION OF ALERE IMAGE/SOFTWARE MODULE(S) TO ACHIEVE YOUR INTENDED RESULTS.
YOU AGREE THAT ALERE’S LIABILITY IN CONNECTION WITH ALERE IMAGE/SOFTWARE MODULE(S), WHETHER ARISING IN CONTRACT, STRICT LIABILITY IN TORT, OR WARRANTY SHALL NOT EXCEED THE AMOUNT PAID BY YOU TO ALERE IN CONNECTION WITH YOUR USE OF OR ACCESS TO ALERE IMAGE. ALERE WILL NOT BE LIABLE FOR ANY CLAIM ARISING FROM YOUR USE OF ALERE IMAGE INCLUDING BUT NOT LIMITED TO YOUR DISTRIBUTION OF REPORTS TO REGISTERED OR UNREGISTERED USERS OF THE WEBSITE.
Notwithstanding anything in this Agreement to the contrary, the limitation of liability shall not apply to losses, damages, or causes of action related to: (1) Alere’s obligation to indemnify you as provided per this Agreement; (2) breach of confidentiality, including any improper use or disclosure of your patient health information, by Alere or an agent or employee of Alere; (3) violation of law by Alere or an agent or employee of Alere; or (4) gross negligence or willful misconduct by Alere or an agent or employee of Alere.
ALERE IS NOT AN INSURER WITH REGARD TO THE PERFORMANCE OF ALERE IMAGE/SOFTWARE MODULE(S). THE LIMITATIONS OF WARRANTIES, LIABILITIES AND REMEDIES ARE A REFLECTION OF THE RISKS YOU ASSUME IN ORDER TO USE ALERE IMAGE/SOFTWARE MODULE(S).
9. Limitation of Liability. THE USE OF THIS SITE IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCE SHALL ALERE, ITS SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS, BE LIABLE TO ANY USER OF THIS SITE OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUE OR DATA, OR OTHER LOSSES OR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THE USE OR INABILITY TO USE THIS SITE OR ANY CONTENT CONTAINED THEREON, WHETHER BASED UPON WARRANTY, NEGLIGENCE, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ALERE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
10. Indemnities. . Alere at its own expense will defend any action brought against you to the extent that it is based on a claim that Alere Image and/or Software Module(s) infringes any patents, copyrights, license or other property right, provided that Alere is immediately notified in writing of such claim. Alere shall have the right to control the defense of all such claims, lawsuits and other proceedings. You may not settle any such claim, lawsuit or proceeding without Alere’s prior, written approval.
If, as a result of any claim of infringement against any patent, copyright, license or other property right, you are enjoined from using Alere Image and/or Software Module(s), or if Alere believes that Alere Image and/or Software Module(s) is likely to become the subject of a claim of infringement, Alere at its option and expense may procure your right to continue to use Alere Image and/or Software Module(s), or replace or modify Alere Image and/or Software Module(s) so as to make it non infringing. If neither of these options is reasonably practicable Alere may discontinue the license granted herein on thirty (30) days written notice and refund to you the unamortized portion of the license fees hereunder. The foregoing states the entire liability of Alere with respect to infringement of any copyrights or patents by Alere Image and/or Software Module(s), or any parts thereof.
Alere agrees that it will indemnify and hold you harmless from any loss, cost, damage, expense, attorney's fees, and liability by reason of personal injury, property damage, or both, arising out of or as a result of the sole and gross negligent act or gross negligent failure to act of Alere or any of its agents or employees. You agree that you will indemnify and hold harmless Alere, its officers, agents, and employees from any loss, cost, damage, expense, attorney's fees, and liability by reason of personal injury, property damage, or both, arising out of or as a result of the sole and gross negligent act or gross negligent failure to act by you or any of your agents or employees.
11. Copyright. © 2013 Alere. All rights Reserved.
All content and materials that comprise Alere Image, including the web site design, text, graphics, photographs, illustrations, images, icons, and other materials, data and information (the “Content”), are protected by copyright under U.S. and international copyright laws and treaties, and are the exclusive property of Alere.
Alere Image is provided by Alere solely for your personal and non-commercial use. Permission is granted to download, to electronically copy, and to print in hard copy, for such personal use, limited portions of the Content for informational purposes.
Any other use of Alere Image, without the express prior written permission of Alere, is strictly prohibited. In particular, and without limitation, except as provided in the preceding paragraph, you (whether alone or as a participant) may not copy, reproduce, distribute, publish, display, perform, modify, create derivative works from, transmit, or in any way exploit Alere Image of any of its Content, nor may you distribute this Content over any network (including any local area network), or use Alere Image or any Content in or as part of any database or compilation, or transfer or sell or offer to transfer or sell any of the Content.
12. Trademarks. All trademarks, service marks, trade names, trade dress, and products displayed on Alere Image are protected in the United States and internationally and are either owned or used under license by Alere. The unauthorized use of any Alere Image trademark is strictly prohibited, and nothing contained on Alere Image may be construed as granting, by implication, estoppels, or otherwise, any right or license to use any trademark.
13. Assignment. Neither party may assign or sublicense its rights, duties or obligations under this Agreement except to an Affiliate, subsidiary, or in connection with the sale or transfer of all or substantially all of the assets to which this Agreement relates, without prior written consent of the other party.
14. Waiver. No waiver of any term, provision or condition of this Agreement (whether by conduct or otherwise) in any one or more instances will be deemed to be or construed as a further or continuing waiver of any such term, provision or condition of this Agreement.
15. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, invalid or illegal, it shall be severed and the remainder of the Agreement shall remain in full force and effect.
16. Governing Law; Venue. The rights and obligations of the parties under this Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. This Agreement is to be construed in accordance with the substantive law of the Commonwealth of Massachusetts, without regard to conflict of laws principles. Venue as to any action arising out of the subject matter hereof shall be in any court of competent jurisdiction in the city of Boston, Massachusetts or in the federal district court for the District of Massachusetts.
17. Entire Agreement, Order of Precedence and Modifications or Amendments. . This Agreement, including its Exhibits, constitutes the entire Agreement of the parties with respect to the subject matter hereof, and supersedes any and all prior agreements and understandings of the parties, whether written or oral, with respect to the subject matter. In the event of a conflict between any provision set forth in this Agreement and a provision of any Exhibit, the relevant portion of this Agreement shall govern. Any pre-printed or other standard terms set forth on any customer order, acknowledgment or other form shall be deemed void and of no force or effect.
18. HIPAA Compliance. To ensure the privacy and security of protected health information, and to the extent which AIere receives, creates, uses, or discloses protected health information under this Agreement, Alere hereby agrees to comply in all respects with the published rules for HIPAA. Alere represents that its products and services are in substantial conformity with the published rules for HIPAA and that said products and services will meet all material applicable requirements of HIPAA prior to the time that you are required by law to conform to such requirements.
19. Data Protection. It is your responsibility to control and process data in accordance you’re your local data protection laws and regulatory requirements. Alere shall not be liable for your use of this software in respect of data protection and privacy.
20. Force Majeure. Neither party shall be liable for failure of delay in performing obligations set forth in this Agreement, nor shall be deemed in breach of its obligations, if such failure or delay is due to natural disasters or any other causes reasonably beyond the control of either party.
21. Relationship between Parties. In performing any or all of the services under this Agreement, Alere, its employees and contractors, shall at all times and for all purposes be and remain an independent contractor.
22. Confidentiality. You agree that this Agreement and its contents are confidential, and you may not discuss, disclose, or provide this Agreement or its contents, in whole or in part, to any third party except (i) with the express prior written consent of Alere, (ii) as may be required in response to any summons, subpoena, or discovery order or to comply with any applicable law, order, regulation or ruling, or (iii) to your attorneys or accountants or to such of your directors, managers, officers, employees, advisors and representatives who have a need to know in connection with the performance of this Agreement and who have been advised of the restrictions on disclosure provided herein.
23. Headings. This Agreement contains headings only for convenience and the headings do not constitute or form any part of this Agreement, and should not be used in the construction of this Agreement.
To contact Alere regarding Alere Image or its Content, please write to us at firstname.lastname@example.org