End User License Agreement

 

This End User License Agreement is between the individual or entity that accepts it ("End User"), and Dia Imaging Analysis Ltd. ("DiA") and shall apply to End User’s use of DiA’s proprietary software and its accompanying documentation (collectively, "Software") as identified in the purchase order signed by the parties or between End User and DiA’s authorized reseller (each an "Order"). These terms and conditions and all Orders (collectively referred to as the "EULA") represent the parties’ entire understanding regarding the Software and shall govern over any different or additional terms of any purchase order and no terms included in any such purchase order shall apply to the Software unless such different terms are stated specifically in a mutually signed Order.  

Upon the earlier of, End User signing this document or checking "I agree" where applicable and/or upon End User’s installation, access and/or use of the Software, End User acknowledges that it has read this EULA, understands it, and agrees to be bound by it. If End User is unwilling to accept all of these terms, it should not check the "I agree" checkbox where applicable and/or should not download, access, install, run or use the Software.

If End User is accepting this EULA on behalf of a company or other legal entity, it represents and warrants that it has the authority to bind such entity to the terms and conditions contained herein. End User may not use the Software and may not accept these terms if it is an entity and/or person barred from using the Software under the laws of the country in which it is a resident or from which it uses the Software.

  1. The Software   

1.1 The Software is licensed to End User, not sold to it. Subject to End User’s compliance with the terms and conditions of this EULA, End User shall be granted during the term of the EULA a limited, revocable, non-exclusive, non-sublicenseable and non-transferable license to use the Software for its intended purpose as detailed in the accompanying documentation. If the Software license is for evaluation purposes than for the removal of doubt, no commercial use may be made by End User or any others on its behalf with the Software without DiA’s prior written consent and shall be subject to such terms (including pricing) to be separately agreed.

 

1.2 End User agrees that if the Software requires mandatory activation or email validation, it will complete the process providing DiA with accurate information. End User’s use of the Software is suspended until it has completed the activation and/or registration process.

 

1.3 The End User assumes sole and exclusive responsibility: (i) for all acts or omissions, that the End User, its users, or others on its behalf engage in, in response to indications, metrics, alerts, notices and other types of information and data that the Licensed Software may generate ("Output Data"); (ii) to thoroughly review the Output Data frequently, check for any alerts or warnings issued by the Licensed Software, address the findings specified in the Output Data and determine what actions are appropriate in light thereof; and (iii) to carry out such actions as the End User deems appropriate as a result of the Output Data. Licensor has no responsibility or liability, regarding the End User’s, its users’ or its patients’ reliance upon, or use of, the Output Data, their actions or omissions in connection with the Output Data, or any consequences resulting therefrom. The End User is responsible for its user’s use of the Licensed Software.

 

1.4 Restrictions and limitations

1.4.1 Except as expressly provided herein, End User and its users may not use, or have others use, or provide to third parties, the Software or any part thereof including by reselling, licensing, renting, leasing, transferring, lending, timesharing, assigning or redistributing the Software or any part thereof.

 

1.4.2 The End User and its users may not modify, make derivative works of, disassemble, de-compile or reverse engineer any part of the Software.

 

1.4.3 The End User and its users may not use the Software in order to develop, or create, or permit others to develop or create, a similar or competitive product or Software.

1.4.4 The End User and its users may not perform or attempt to perform any of the following: (i) breaching the security of the Software, or identifying any security vulnerabilities thereof; (ii) interfering with, circumventing, manipulating, impairing or disrupting the operation, or the functionality of the Software; (iii) working around or circumventing any technical limitations in the Software; or (iv) using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Software.

 

1.4.5 The End User and its users may not use the Software for any activity that constitutes, or encourages conduct that would constitute, a criminal offense, give rise to civil liability or otherwise violate any applicable law.

 

1.4.6 End User and its users acknowledge and agree that the Output Data is not, and does not constitute, medical advice, and may not be relied on as such.

 

1.4.7 The End User acknowledges and agrees that: (i) the Software and Output Data are merely a support tool for physicians and may not be used for any purpose other than as a support tool alongside certified medical diagnosis methods; (ii) the Software and Output Data do not themselves provide medical assessment or diagnosis; and (iii) the Software and Output Data are not, and are not intended as, a substitute for qualified medical diagnosis.

1.5 End User agrees that DiA may audit End User's use of the Software for compliance with this EULA at any time, upon reasonable notice. In the event that such an audit reveals any use of the Software by End User other than in full compliance with the terms of this EULA, End User shall reimburse DiA for all reasonable expenses related to such an audit in addition to any other liabilities DiA may incur as a result of such noncompliance.

1.6 Evaluation Use. If the Order indicates that the Software is being supplied for evaluation, the following provisions will apply during the Trial Period as identified on the applicable Order and if not stated than as detailed under Section 3.1 below and notwithstanding any contrary term specified in this EULA: (a) unless otherwise specified in the Order, subscription fees do not apply; (b) the Software must be used solely for the Trial Period and solely for the limited purpose of evaluating the Software and establishing End User's desire to acquire a license to the Software; (c) the Software is provided on an "As Is, As Available" basis without any warranty of any kind, either express or implied, including but not limited to, the implied warranties or merchantability or fitness for a particular purpose; (d) other than updates that the Company may (in its discretion) provide to the Software during the Trial Period, End User will not be entitled to any support and maintenance services during the Trial Period; (e) End User shall be solely responsible for any losses, costs, or damages, of any kind, that it incurs directly or indirectly with respect to use of the Software and agrees to hold harmless, defend, and indemnify DiA in connection with any claims or actions brought by a third party alleging any damages or losses in connection with End User's use of the Software; (f) End User expressly warrants that no End User data will be used with the Software evaluation that is subject to any data privacy rules or regulations, or is otherwise going to impose data privacy constraints or legal obligations on DiA; and (g) upon the expiration of the Trial Period or earlier, upon five (5) days' notice to End User, if requested by DiA, the limited evaluation license granted shall terminate and End User shall cease using and return the Software and documentation, without retaining copies. 

In the event that the parties desire to engage in a commercial license of the Software pursuant to the evaluation conducted, such license and the commercial terms thereto shall be handled in accordance with and upon signing of a separate Order.
 

End User warrants that they are not competitors or potential competitors of DiA, and are not acting on behalf of a competitor or potential competitor.

2. Consideration

In consideration for the use of the Software, End User shall pay DiA and/or its authorized reseller the license subscription fees stated in the Order in accordance with the payment terms contained therein.

3. Term and Termination

3.1 The EULA shall commence as of the date set forth in the Order and, unless earlier terminated as set forth below, shall remain in effect through the end of the term stated in the Order ("Initial Term"). Except as otherwise specified in an Order, after the Initial Term, the EULA shall be automatically renewed for additional terms equal to the Initial Term (each a "Renewal Term"), unless one Party notifies the other Party in writing of its intent not to renew the EULA, at least forty-five (45) days prior to the expiration of the Initial Term or any Renewal Term.

Notwithstanding the above, if this EULA is for use of the Software for trial purposes only then the term of this EULA shall commence as of the date set forth in the Order and, unless earlier terminated as set forth below, shall remain in effect for a period stated in the Order and, if not stated, than for thirty 30 days ("Trial Period") and shall automatically terminate following such term unless the parties agree in a separate Order for the commercial licensing of the Software by End User
.

 

3.2 The license to use the Software may be terminated by DiA: (a) immediately upon written notice upon material breach of the license; (b) upon a fifteen (15) day prior written notice of breach upon non-material breach of the license, which has not been cured within the prior notice period.

3.3 Upon termination of the license for any reason whatsoever, the End User must cease any and all use of the Software and cause all other users of the End User to cease any and all use of the Software.

3.4 Termination of the license by DiA will be, in addition to, and not in lieu of, any equitable or other remedies available to DiA.

 

3.5 Upon termination, all rights and obligations pursuant to this EULA including End User’s access and use of the Software shall immediately terminate, except for any provisions of this EULA that are intended by their nature to survive termination, including Sections 3 (“Term and Termination”), 4 (“Intellectual Property Ownership”), 5 (“Confidential Information”), 6.2, 6.3, 7 (“Limitations on Liability; Indemnity”), and 8 (“General”) hereunder, which shall survive the expiration or termination of these Terms.

4. Intellectual Property Ownership 

4.1 The Software is a proprietary product of DiA, protected under copyright laws and international copyright treaties, patent law, trade secret law and other intellectual property rights of general applicability.

4.2 All rights, title and interest in all intellectual property rights, and any goodwill associated therewith, in and to the Software and any part thereof, including computer code, graphic design, layout and the user interfaces of the Software, and all derivatives, improvements and variations thereof, are and will remain at all times, exclusively owned by, or licensed, to DiA. Other than the limited use rights expressly granted herein, no other right, title, interest or license in or to any of the foregoing elements regarding the Software, are granted, sold, transferred, assigned or shared with the End User.

4.3 Nothing in this EULA grants End User with a right to use any of DiA's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.

4.4 The Software may use or may be provided with third party software ("Third Party Software"), including those detailed in the accompanying documentation or README file conveyed to the End User together with the Software. To the extent so stipulated by the license that governs each Third Party Software ("Third Party EULA"), each such Third Party Software is licensed directly to End User from the respective licensors of such Third Party Software and not sublicensed from DiA and is subject to its respective Third Party EULA, not to this license agreement. If, and to the extent, a Third Party EULA requires that license agreement effectively impose, or incorporate by reference, certain disclaimers, permissions, provisions, prohibitions or restrictions, then such disclaimers, permissions, provisions, prohibitions or restrictions shall be deemed to be imposed, or incorporated by reference into this license agreement, as required, and shall supersede any conflicting provision of this license agreement, solely with respect to the corresponding Third Party Software which is governed by such Third Party EULA. If, and to the extent, a Third Party EULA requires that the source code of its corresponding Third Party Software be made available to End User, and such source code was not delivered to End User with the Software, then DiA hereby extends a written offer, valid for the period prescribed in such Third Party EULA, to obtain a copy of the source code of the corresponding Third Party Software, from DiA. To take up this offer, contact DiA at: info@dia-analysis.com. In the event that End User or another third party acting for or on its behalf, modifies, replaces or substitutes any Third Party Software used in or provided with this Software, DiA and its representatives, are irrevocably and fully released from any and all liabilities, warranty obligations, duties and performance, with respect to the Software.

4.5 End User agrees to provide DiA with feedback concerning the functionality and performance of the Software, from time to time, as reasonably requested by DiA, including, without limitation identifying potential errors, enhancements and improvements. Any feedback, suggestions, ideas or other inputs that are provided to DiA in connection with the Software may be freely used by DiA to improve or enhance its products and, accordingly, all rights to such improvements and/or enhancements, howsoever arising, including as a result of any ideas, inputs or information provided by End User as aforesaid, shall vest solely with DiA.

4.6 End User agrees that DiA may collect, store and access general, aggregated or non-aggregated, non‑personally identifiable information about End User’s usage of the Software, and any Output Data generated from End User’s usage of the Software, and analyze and use such data for the purpose of: (i) providing maintenance and support, and (ii) developing and improving DiA’s products and services (together "Permitted Purposes"). In order to achieve the intent of this Section, DiA shall be permitted to remotely access and transfer the usage data stored on its Software unless prohibited by applicable law.

4.7 HIPAA. The parties shall treat as private and confidential, in accordance with applicable federal, state and local laws, rules and regulations governing the privacy and confidentiality and disclosure requirements of individually identifiable health information, including, the applicable provisions of the Health Insurance Portability and Accountability Act of 1996 and any regulations and official guidance promulgated thereunder (collectively, "HIPAA"), as amended by the Health Information Technology for Economic and Clinical Health Act (HITECH), all individually identifiable health information used or disclosed pursuant to this EULA.

4.8 End User shall assure that any information and data provided to DiA under Section 4.6 above, shall only include de-identified information as such term is defined by HIPAA. When End User is unable to provide the data in its de-identified form, it shall notify DiA accordingly prior to providing such data. End User represents and warrants to DiA that it possesses all rights required to lawfully provide any information and data to DiA and to permit DiA to use such information for the Permitted Purposes. Should any consent provided pursuant to this Section be revoked by an individual, End User shall be responsible for communicating the fact of such revocation to DiA, and DiA shall follow End User’s reasonable instructions with respect to the return or deletion of such personally identifiable information in accordance with the requirements of HIPAA.

4.9 To the extent that the parties reasonably determine that a “Business Associate Agreement” ("BAA") is required by HIPAA, the parties shall negotiate in good faith to also enter into a standard mutually agreeable BAA which shall be attached as an appendix to this EULA.

5. Confidential Information

End User acknowledge and agree that the Software was developed at considerable time and expense by DiA and contains valuable trade secrets and confidential information of DiA. Accordingly, End User agrees to maintain the confidentiality of any proprietary information received by it during, or prior to entering into, this EULA, including, without limitation, the Software and any know-how disclosed by DiA, trade secrets and other proprietary information, that End User should know is confidential or proprietary based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information and all other information obtained during the use of the Software as permitted hereunder ("Confidential Information"). The restriction herein shall not apply to the extent that such information is in the public domain or hereafter falls into the public domain through no fault of End User. End User agrees not to use said Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this EULA. End User shall protect the secrecy of and avoid disclosure and unauthorized use of DiA’s Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care.

6. Limited Warranty

6.1DiA’s sole warranty to End User is limited to the warranty set forth in subsection 6.1.1 below and to the exclusions set forth in subsection 6.1.2 below.

 

6.1.1 DiA warrants, for End User’s sole benefit, that for a period of twelve (12) months from the date of installation of the Software and when properly installed and used in the hardware configuration and operating system for which it was designed, as detailed in the documentation, the Software will perform substantially in accordance with the documentation provided with the Software. End User’s sole and exclusive remedy, and DiA’s sole and exclusive liability, for any breach of this warranty, shall be to obtain, within the warranty period, the repair of, replacement of, or workaround to, the defective software, so that it substantially performs in accordance with the documentation.

 

6.1.2 The following are excluded from DiA’s warranty: (i) defects discovered in any Software that has been modified, altered, or enhanced without DiA’s prior consent; (ii) Software that has been used in breach of this EULA; and (iii) defects that arise from misuse, accident, unsuitable physical or operating environment, operation in other than the specified operating environment, improper maintenance or failure caused by a product or software for which DiA is not responsible. 

6.2 Except for the specific warranty detailed in this section 6, DiA provides no other representations or warranties whatsoever regarding the accuracy, quality, or integrity of any information and results obtained with the use of the software, and DiA shall under no circumstances be liable for any damages which may be caused to you or anyone on your behalf, as a result of such information or the reliance thereupon.

 

6.3 The software is provided on an “as is” and “as available” basis. DiA disclaims any and all warranties, representations, and conditions relating to the software, whether express, implied or arising by custom or trade usage, or from a course of dealing including, but not limited to, any representation, warranty, or condition of merchantability, fitness for a particular purpose, or non-infringement. No information or advice given by DiA or its agents, employees, or representatives, whether oral or written, shall create any representation or warranty.

 

7. Limitations on Liability; Indemnification

7.1 To the maximum extent permitted by applicable law, DiA, including its employees, directors, shareholders, advisors, and anyone acting on our behalf, will not be liable for any indirect, incidental, consequential, special, statutory or punitive damages, or any other damage or loss (including loss of profit and loss of data), costs, expenses and payments, either in tort, contract, or in any other form or theory of liability, arising from, or in connection, with this EULA, the software or the support and maintenance service, including any use of, or the inability to use the software; any reliance upon the output data; any error, incompleteness, incorrectness or inaccuracy of the output data, or inability to properly recover data; or any other failure, error, or breakdown in the function of the software.

 

7.2 DiA's total and aggregated liability to the end user and users for any and all damages whatsoever arising from, or in connection, with this EULA, the software or the support and maintenance service, shall be limited to the fees that the end user actually paid for the software and the support and maintenance service for the software, in the twelve (12) months preceding the event purportedly giving rise to the damage.

 

7.3 Notwithstanding the foregoing, DiA's sole liability and the end user’s and users’ exclusive remedy, for any claims regarding the software’s performance, availability, errors or malfunctions, is the performance of the warranty obligations.

7.4 The End User shall indemnify and hold harmless DiA and anyone acting on DiA’s behalf, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, resulting from any complaint, claim, or demand arising from or in connection with End User’s breach of any provision herein.

8. General

8.1 No agency, partnership, joint venture or employment relationship is or shall be created by virtue of this EULA.

8.2 End User may not assign its rights hereunder without the prior written consent of DiA.

8.3 DiA may indicate End User’s name and identify End User on DiA’s website(s) and in other advertising materials in a customary scope and manner as a user of the Software.

 

8.4 Should any provision herein be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, such provision shall be modified to reflect the intentions of the parties. All other terms and conditions shall remain in full force and effect.

 

8.5 No amendment, modification or waiver of any provision of this EULA shall be effective unless set forth in a writing executed by an authorized representative of each party. No failure or delay by either party in exercising any right, power, or remedy will operate as a waiver of any such right, power, or remedy. No waiver of any provision of this EULA shall constitute a continuing waiver or a waiver of any similar provision unless expressly set forth in a writing signed by an authorized representative of each party.

 

8.6 This EULA shall be governed by, interpreted and enforced in accordance with the laws of the State of Israel, without regard to its conflict of law principles. All actions, suits or proceedings under or related to this EULA and/or use of the Software shall be adjudicated in the courts of Tel-Aviv, Israel, and the parties hereby irrevocably consent to the exclusive jurisdiction and venue of such courts.

 

8.7 All notices permitted or required hereunder shall be in writing and shall be sent by facsimile, e-mail or personal delivery at the facsimile number, e-mail address or address as either Party may specify. Notices sent to DiA shall be addressed to 77 Haenergia St., Beer-Sheva, Israel and to End User’s address as provided by it in an Oder, or to the address otherwise designated from time to time in writing by the Parties. Any notices provided will be deemed as being received on the date of transmission of facsimile, e-mail, or personal delivery unless given outside normal business hours in which case such notice shall be deemed as being given on the next business day, provided that if any such notice fails to reach End User because the information provided by it or on its behalf to DiA is not accurate or up to date, notice shall be deemed sufficiently delivered on the date it was sent.

 

Should you have any questions concerning this EULA, or if you desire to contact DiA for any reason, please direct all correspondence to info@dia-analysis.com.