END USER LICENSE AGREEMENT:
This ECMO simulator is intended only for teaching the users of ECMO systems the principles of this form of therapy. Under no circumstances must it be used as a guide to the medical management of any living person.
This software end user license agreement ("EULA") is a legal agreement between you (either an individual or, if purchased or acquired by or for an entity, an entity) and MSE (Australia) pl. It provides a license to use this software and contains warranty information and liability disclaimers. By downloading, installing or using the software you are indicating your assent to the terms of this license. If you do not agree to all of the following terms, do not download or install the software, discontinue its use immediately and destroy all copies in your possession.
a) "Software" means the executable code of MSE ECMO Simulator, additional tools, libraries, source files, header files, data files, any updates or error corrections provided by MSE (Australia) PL, any user manuals, guides, printed materials, on-line or electronic documentation.
b) "License Key" means a serial number issued to you by MSE (Australia) PL to activate and use the Software.
c) "Named User" is an individual authorized by you to use the Software through the assignment of a single user ID, regardless of whether or not the individual is using the Software at any given time. A non-human operated device is counted as a User in addition to all individuals authorized to use the Software, if such device can access the Software.
d) "Maintenance Plan" is a time-limited right to technical support and Software updates and upgrades. Technical support only covers issues or questions resulting directly out of the operation of the Software. MSE (Australia) PL will not provide you with generic consultation, assistance, or advice under any other circumstances.
2. LICENSE GRANTS
2.1 Trial Period License. You may download and use the Software for free for thirty (30) days after installation ("Trial Period"). During the Trial Period, MSE (Australia) PL grants You a limited, non-exclusive, non-transferable, non-renewable license to copy and use the Software for evaluation purposes only and not for any commercial use. At MSE (Australia) PL's discretion, MSE (Australia) PL may provide limited support through email or discussion forums at the download web site. The evaluation copy of the Software contains a feature that will automatically disable the Software at the end of Trial Period. MSE (Australia) PL will have no liability to you if this feature disables the Software.
2.2 License After Trial Period. This Software is licensed, not sold. During the Trial Period, you have the option of paying a license fee in order to use the Software after the expiration of the Trial Period. Upon your payment of the license fee, MSE (Australia) PL provides you with a permanent registration number ("License key"), hardware protection device (“Dongle”) and grants you a limited, non-exclusive, non-transferable license to:
a) use the Software on a Named User basis meaning specific individuals are authorized to access the Software and the total number of named users may not exceed the total number licensed by You.
b) copy the Software in machine-readable form solely for archival and backup purposes.
2.3 The Named User of the Software may install and use the Software on any number of computers (including operating systems and Virtual Machine Environments) that are connected to each other in a network (there has to be a TCP/IP connection between these computers).
3. LICENSE RESTRICTIONS
3.1 You shall undertake any necessary steps to protect the License Key and Dongle against unauthorized use.
3.2 You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.
3.3 You may not sell, rent, lease, sub license, transfer, resell for profit or otherwise distribute the Software or any part thereof.
3.4 You may not modify the Software or create derivative works based upon the Software.
3.5 You may not remove or obscure any copyright and trademark notices relating to the Software.
4. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
4.1 This Agreement gives you limited rights to use the Software. MSE (Australia) PL retains all rights, title and interest in and to the Software and all copies thereof, including copyrights, patents, trade secret rights, trademarks and other intellectual property rights. All rights not specifically granted in this Agreement, including International Copyrights, are reserved by MSE (Australia) PL. The structure, organization and code of the Software are valuable trade secrets and confidential information of MSE (Australia) PL.
5. LIMITATION OF LIABILITY
5.1 MSE (Australia) PL's cumulative liability to you or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the license fee paid to MSE (Australia) PL for use of the Software.
5.2 MSE (Australia) PL shall be relieved of any and all obligations for any portions of the software that are revised, changed, modified, or maintained by anyone other than MSE (Australia) PL.
6. PATENT AND COPYRIGHT INDEMNITY
6.1 MSE (Australia) PL represents and warrants that the Software shall not infringe or misappropriate any copyrights, patents, trade secret rights, trademarks and other intellectual property rights.
6.2 In the event the Software is found to infringe, MSE (Australia) PL will have the option, at its expense, to:
a) modify the Software to cause it to become non-infringing;
b) substitute the Software with other Software reasonably suitable to You, or
c) if none of the foregoing remedies are commercially feasible, terminate the license for the infringing Software and refund any license fees paid for the Software.
6.3 MSE (Australia) PL will have no liability for any claim of infringement based on:
a) code contained within the Software which was not created by MSE (Australia) PL;
b) use of a superseded or altered release of the Software, except for such alteration(s) or modification(s) which have been made by MSE (Australia) PL or under MSE (Australia) PL's direction, if such infringement would have been avoided by the use of a current, unaltered release of the Software that MSE (Australia) PL provides to you, or
c) the combination, operation, or use of any Software furnished under this Agreement with programs or data not furnished by MSE (Australia) PL if such infringement would have been avoided by the use of the Software without such programs or data.
7. LIMITED WARRANTIES
7.1 the software is provided on an "as is" basis. MSE (Australia) PL makes no warranty of any kind, express or implied, including without limitation any implied warranty or merchantability or fitness for a particular purpose. Without limitation, you assume sole responsibility for selecting the software to achieve your intended results and for the installation, use and results obtained from the software. MSE (Australia) PL makes no warranty that the software will be error free or free from interruptions or other failures. In particular, the software is not designed for use in hazardous environments requiring fail-safe performance. MSE (Australia) PL expressly disclaims any warranty of fitness for high-risk activities.
7.2 MSE (Australia) PL warrants that it holds the proper rights allowing it to license the Software and is not currently aware of any actions that may affect its rights to do so.
7.3 MSE (Australia) PL cannot guarantee that the Software will work at all times. If you change your operating system, the software may not work anymore. You acknowledge and agree that such changes are fair and reasonable.
7.4 You should make sure that it is legal to use the Software in your country or jurisdiction. MSE (Australia) PL only provides a license for you to use the software. It is your responsibility to make sure that You are allowed to use the Software.
7.5 MSE (Australia) PL reserves the right at any time to cease the support of the Software and to alter prospectively the prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.
8.1 Except as provided herein, support for the Software is provided to you free of charge for a period of two years after purchase of a full license.
9. HIGH RISK ACTIVITIES
9.1 The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of direct life support machines, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). MSE (Australia) PL and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
9.2 Furthermore, under no circumstances must the Software be used as a guide to the medical management of any living person.
10. THIRD PARTY SITES AND SOFTWARE
10.1 The Software will direct you to third party Web sites. MSE (Australia) PL does not control, endorse, or guarantee content, including software, data or other information found on such third party sites. You agree that MSE (Australia) PL is not responsible for any content, associated links, resources, or services associated with a third party site. You further agree that MSE (Australia) PL shall not be liable for any loss or damage of any sort associated with your use of third party content. Access to these sites is provided for your convenience only.
10.2 The Software contains third party software. By accepting this EULA, you are also accepting the additional terms and conditions with respect to such software, if any, forth herein.
11.1 If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this Agreement shall not be affected.
12. GOVERNING LAW
12.1 This Agreement is to be governed by and construed in accordance with the laws and jurisdiction of the defending party. Service of process upon either party shall be valid if served by registered or certified mail, return receipt requested and to the most current address provided by such party. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
13.1 Your license to use the Software continues until terminated. This license will terminate automatically if you fail to comply with any term hereof. No notice shall be required from MSE (Australia) PL to effect such termination. You may also terminate this Agreement at any time by notifying MSE (Australia) PL in writing of termination. On termination, you must destroy all copies of the Software. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement.
14.1 Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by you, whether voluntary or by operation of law. Any such attempted assignment shall be void and of no effect without the prior written consent of MSE (Australia) PL.
15. ENTIRE AGREEMENT
15.1 This Agreement contains the entire agreement between MSE (Australia) PL and you related to the software and supersedes all prior agreements and understandings, whether oral or written. It may be amended only by a writing executed by both parties.