|This Software Agreement
("Agreement") is between You (either an individual or an
entity), the End User, and Medizintechnik Basler AG ("MTB").
The Agreement authorizes you to use the
Software specified in Clause 1 below, which may be stored on a
CD-ROM, sent to you by electronic mail, downloaded from MTB’s
Web pages or Servers or from other sources under the terms and
conditions set forth below. This is an agreement on end user
rights and not an agreement for sale. MTB continues to own the
copy of the Software and the physical media contained in the
sales package and any other copy that you are authorised to
make pursuant to this Agreement. Read this Agreement carefully
before installing, downloading or using the Software. By
clicking on the "I Accept" button, installing, downloading
and/or using the Software, you agree to the terms and
conditions of this Agreement. If you do not agree to all of
the terms and conditions of this Agreement, promptly click on
the "Decline" or "I Do Not Accept" button, cancel the
installation or downloading, or destroy or return the Software
and accompanying documentation to MTB. YOU AGREE THAT YOUR USE
OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS
AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS
As used in this Agreement, the term "Software"
means, collectively: (i) the software product identified above
(ii) all the contents of the disk(s), CD-ROM(s), electronic
mail and its file attachments, or other media with which this
Agreement is provided, including the object code form of the
MTB software delivered via a CD-ROM, electronic mail or
web-page(iii) related MTB or third party software; (iv)
digital images, stock photographs ("Stock Files") (v) related
explanatory written materials ("Documentation"); (vi) fonts
(vii) upgrades, modified versions, updates, additions and
copies of the Software, if any, licensed to you by MTB
(collectively "Updates") and (viii) any other possible
documentation related thereto. Any third party software that
may be provided with the software is included for use at your
option. If you choose to use such third party software, then
such use shall be governed by such third party’s software
license/end user agreement, an electronic copy of which may be
installed in the relevant folder of your computer upon
installation of the third party software.
2. END USER RIGHTS AND USE.
MTB grants to you a non-exclusive,
non-transferable end user right to install the Software on the
local hard disk(s) or other permanent storage media of one
computer and use the Software on a single computer or terminal
at a time.
3. LIMITATIONS ON END USER RIGHTS.
You may not copy, distribute, or make
derivative works of the Software except as follows:
(a) You may make one copy of the Software on
magnetic media as an archival backup copy, provided your
archival backup copy is not installed or used on any computer.
Any other copies you make of the Software are in violation of
(b) You may not use, modify, translate,
reproduce or transfer the right to use the Software or copy
the Software except as expressly provided in this Agreement.
© You may not resell, sublicense, rent, lease
or lend the Software.
(d) You may not reverse engineer, reverse
compile, disassemble or otherwise attempt to discover the
source code of the Software (except to the extent that this
restriction is expressly prohibited by law) or create
derivative works based on the Software.
(e) Unless stated otherwise in the
Documentation, you shall not display, modify, reproduce and
distribute any of the Stock Files included with the Software.
In the event that the Documentation allows you to display the
Stock Files, you shall not distribute the Stock Files on a
stand-alone basis, i.e., in circumstances in which the Stock
Files constitute the primary value of the product being
distributed. You should review the "Read-Me" files associated
with the Stock Files that you use to ascertain what rights you
have with respect to such materials. Stock Files may not be
used in the production of libelous, defamatory, fraudulent,
infringing, lewd, obscene or pornographic material or in any
otherwise illegal manner. You may not register or claim any
rights in the Stock Files or derivative works thereof.
(f) You agree that you shall only use the
Software in a manner that complies with all applicable laws in
the jurisdiction in which you use the Software, including, but
not limited to, applicable restrictions concerning copyright
and other intellectual property rights.
The Software and all rights, without
limitation including proprietary rights therein, are owned by
MTB and/or its licensors and affiliates and are protected by
international treaty provisions and all other applicable
national laws of the country in which it is being used. The
structure, organization and code of the Software are the
valuable trade secrets and confidential information of MTB
and/or its licensors and affiliates. You must not copy the
Software, except as set forth in clause 3 (Limitations On End
User Rights). Any copies which you are permitted to make
pursuant to this Agreement must contain the same copyright and
other proprietary notices that appear on the Software.
5. MULTIPLE ENVIRONMENT SOFTWARE / MULTIPLE
LANGUAGE SOFTWARE / DUAL MEDIA SOFTWARE / MULTIPLE COPIES. If
the Software supports multiple platforms or languages, if you
receive the Software on multiple media, of if you otherwise
receive multiple copies of the Software, the number of
computers on which all versions of the Software are installed
shall be one computer. You may not rent, lease, sublicense,
lend or transfer versions or copies of the Software you do not
6. COMMENCEMENT & TERMINATION.
This Agreement is effective from the first
date you install the Software. You may terminate this
Agreement at any time by permanently deleting, destroying and
returning, at your own costs, the Software, all back up copies
and all related materials provided by MTB. Your end user
rights automatically and immediately terminate without notice
from MTB if you fail to comply with any provision of this
Agreement. In such event, you must immediately delete, destroy
or return at your own cost, the Software, all backup copies
and all related material to MTB.
7. YOU ACKNOWLEDGE THE SOFTWARE IS PROVIDED
"AS IS" WITHOUT WARRANTY OF ANY KIND EXPRESS OR IMPLIED AND TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER MTB,
ITS LICENSORS OR AFFILIATES NOR THE COPYRIGHT HOLDERS MAKE ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SOFTWARE WILL NOT
INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR
OTHER RIGHTS. THERE IS NO WARRANTY BY MTB OR BY ANY OTHER
PARTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET
YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL
BE UNINTERRUPTED OR ERROR-FREE. YOU ASSUME ALL RESPONSIBILITY
AND RISK FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR
INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS
OBTAINED FROM IT.
8. NO OTHER OBLIGATIONS.
This Agreement creates no obligations on the
part of MTB other than as specifically set forth herein.
9.LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT SHALL MTB, ITS EMPLOYEES OR LICENSORS OR
AFFILIATES BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES,
DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS,
LOSS OF BUSINESS INFORMATION OR FOR ANY SPECIAL, DIRECT,
INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, SPECIAL OR
CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING
UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY
ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE,
EVEN IF MTB OR ITS LICENSORS OR AFFILIATES ARE ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME
COUNTRIES/STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE
LIMITED, IN SUCH CASES, MTB, ITS EMPLOYEES OR LICENSORS OR
AFFILIATES’ LIABILITY SHALL BE LIMITED TO U.S.$50. Nothing
contained in this Agreement shall prejudice the statutory
rights of any party dealing as a consumer. Nothing contained
in this Agreement limits MTB’s liability to You in the event
of death or personal injury resulting from MTB’s negligence.
MTB is acting on behalf of its employees and licensors or
affiliates for the purpose of disclaiming, excluding and/or
restricting obligations, warranties and liability as provided
in this clause 9, but in no other respects and for no other
10. TECHNICAL SUPPORT.
MTB has no obligation to furnish You with
technical support unless separately agreed in writing between
You and MTB.
All notices and return of the Software and
Documentation should be delivered to:
MEDIZINTECHNIK BASLER AG, Schulstrasse 161,
CH-8105 Regensdorf Swizerland
12. APPLICABLE LAW & GENERAL PROVISIONS.
This Agreement is governed by the laws of
Switzerland. The arbitration procedure shall take place in
Zurich, Switzerland in the English language. If any part of
this Agreement is found void and unenforceable, it will not
affect the validity of the balance of the Agreement, which
shall remain valid and enforceable according to its terms.
This Agreement may only be modified by a writing signed by an
authorized officer of MTB, although MTB may vary the terms of
This is the entire agreement between MTB and
you relating to the Software and it supersedes any prior
representations, discussions, undertakings, end user
agreements, communications or advertising relating to the