Olive Tree Media, LLC, Software Subscription License Agreement
Subscription Agreement for Use of OTMIAS® Image Analysis Software
Updated April 19, 2014
This Subscription Agreement (“Agreement”) sets forth the terms and conditions that apply to Licensee’s Purchase of a Subscription to use the Software and the Licensee’s use of the Software upon purchase of the subscription. This Agreement covers all versions and releases of the Software. If Licensee does not accept this Agreement, Licensee will not be able to use the Software.
1. Definitions. The following Definitions govern this Agreement:
a. Licensor. The term “Licensor” includes Olive Tree Media, L.L.C., and its subsidiaries, agents, successors, authorized representatives, and assigns of Olive Tree Media, L.L.C.
b. Licensee. The term “Licensee” includes you as an individual or a single business or government entity who purchases an authorized subscription to use the Software.
c. Software. The term “Software” includes an Executable form of the OTMIAS® Software.
d. Purchase of a Subscription. The term “Purchase of a Subscription” includes purchase of a subscription to use Software and obtaining a copy of Software in Executable form.
e. Licensed Device. The term “Licensed Device” is the device with which Licensee acquired the Software through download and installation. A hardware or software partition is considered to be a separate device. This Agreement is permanently assigned to the Licensed Device.
2. Overview. The Software is intended for research use only. By agreeing to this Agreement, Licensee understands and agrees that Licensee may not use this Software in the clinical management of patients. Licensee understands and agrees that any use of Software for any purpose other than that intended by Licensor is the sole responsibility of the Licensee, who bears all responsibility and liability for such use.
a. Licensor grants to Licensee a personal, limited, non-exclusive, revocable, license, provided that Licensee complies with all of the terms and conditions of this agreement.
b. Licensee may download, install, and use copy of the Software on up to three Licensed Devices for a period subscribed to by the Licensee (“Subscription Duration”) in accordance with the provisions of this Agreement. The Agreement may be renewed upon expiration of the Subscription Duration for an additional fee.
i. Licensee may not use the Software on any other device besides the Licensed Devices. Only a single user may use the Software at a time. A separate subscription is required for each additional Licensee.
ii. The Software may include more than one version, such as a 32-bit and a 64-bit.
iii. Hardware or software that is used to pool connections, or reduce the number of devices or users that directly access or use the Software, does not reduce the number of Licenses that Licensee needs.
c. Licensee may make a single backup copy of the Software. The single backup copy may only be used to reinstall the Software.
3. Reservation of Rights and Ownership. The Software and any copies that Licensee makes are the intellectual property of and are owned by Licensor. The Software is protected by law, including but not limited to the copyright laws of the United States (“U.S.”) and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant Licensee any intellectual property rights in the Software and all rights not expressly granted are reserved by Licensor. The Licensee shall not during or at any time after the expiration or termination of this Agreement in any way question or dispute ownership by the Licensor.
4. Technical Support. The Licensor, at its sole discretion, may provide technical support. In the event the Licensor provides technical support, the Licensor may use a variety of methods (e.g., in-product, Internet, e-mail, chat, fax, and phone) to provide such technical support and customer service in connection with this Software. The Licensor reserves the right to choose the method to provide support. The Licensor reserves the right to limit technical support to Licensor’s normal business hours and reserves the right to charge Licensee for all technical support or technical support deemed extraordinary by the Licensor. Licensee may receive technical support within the Subscription Duration. In the event that the Licensor provides technical support, the Licensor, at its sole discretion and without notice, may cease to provide technical support.
5. Additional Restrictions. Licensee is not licensed or permitted under this Agreement to do any of the following:
a. work around any technical limitations of this Software;
b. translate, adapt, vary, or modify the Software;
c. use components of the Software to run applications not included with the Software;
d. make copies of the Software other than as expressly permitted under this Agreement or allowed by law, or allow any other person who is not a Licensee to use the Software;
e. rent, loan, resell, or distribute the Software to any person or entity;
f. publish the software for others to copy;
g. make the Software available on any file-sharing service;
h. electronically send the Software to any other person;
i. copy user documentation accompanying the Software other than as necessary to support the permitted uses;
j. decompile, disassemble, otherwise reverse engineer the Software;
k. create derivative works from the Software; or
l. transfer this Agreement (or any rights granted hereunder) to a third party.
Any person who received the Software through any of the forgoing prohibited methods, or through any method other than purchasing a subscription for the Software from Licensor is not authorized to use such Software.
6. Other Agreements. Licensee agrees to do all of the following:
a. to maintain accurate and up-to-date records of the number and location of all copies of the Software;
b. to supervise and control use of the Software in accordance with the terms of this Agreement;
c. to ensure that its employees, agents, and other duly authorized parties who will use the Software are notified of this Agreement and the terms hereof prior to such use;
d. to reproduce and include the copyright notice of the Licensor or such other party as may be specified in or on the Software on all and any copies, whether in whole or in part, in any form;
e. not to provide or otherwise make available Software or user documentation accompanying Software in any form to any person other than the Licensee’s employees; and
f. only to use this Software when the Licensed Device is connected to the Internet, and to allow the Software to receive updates and validate that the Software is properly Licensed.
7. Agree to Register. Licensee agrees to register the Software with Licensor. In this regard, Licensee agrees to keep Licensor apprised promptly of any change in Licensee’s email address, mailing address, and/or phone numbers so that Licensee can be notified of any changes or corrections.
8. Confidential Information.
a. All information, data, drawings, specifications, documentation, software listings, source or object code which the Licensor may have imparted and may from time to time impart to the Licensee relating to the Software is proprietary and confidential. The Licensee hereby agrees that it shall use the same solely in accordance with the provisions of this Agreement and that it shall not at any time, disclose the same, whether directly or indirectly, to any third party without the Licensor’s prior written consent.
b. The Licensee further agrees that Licensee shall not itself or through any subsidiary, agent, or third party use such confidential information to copy, reproduce, translate, adapt, vary, modify, decompile, disassemble, or reverse engineer the Software; nor shall the Licensee lease, license, sub-license, or otherwise deal with the Software or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or have any software or other program written or developed for itself based on any confidential information supplied to it by the Licensor.
c. The foregoing provisions shall not prevent the disclosure or use by the Licensee of any information, which is or hereafter, through no fault of the Licensee, becomes public knowledge or to the extent required by law.
9. Assignment. The Licensee shall not assign, rent, lease, loan, sublicense, distribute, or otherwise transfer all or any part of the Software or this Agreement.
10. Payment and Collection. In the event that Licensee owes Licensor any amounts related to licensing of Software, Licensor reserves the right to seek collection of any amount unpaid.
11. Disclaimer of Warranties.
a. The Licensor does not warrant that the functions contained In the Software will meet the Licensee’s requirements, or that the operation of the Software will be uninterrupted or error-free, or that defects in the Software will be corrected. Furthermore, Licensor does not warrant or make any representations regarding the use or the results of the use of the Software or user documentation. Furthermore, Licensor does not warrant or make any representations regarding the use or the results of the use of the Software or user documentation in terms of their correctness or reliability. No oral or written information or advice given by the Licensor or a Licensor’s authorized representative shall create a warranty or in any way increase the scope of this warranty.
b. The Software and user documentation provided with Software are provided “as-is” and, to the maximum extent permitted by applicable law, Licensor disclaims all guarantees and warranties, express or implied, regarding the Software or user documentation, including any warranty of fitness for a particular purpose, title, merchantability, quality, timeliness, and non-infringement. Licensor does not warrant that Software and user documentation are secure, free from bugs, viruses, interruption, errors, or other program limitations. Some states do not allow the exclusion of implied warranties, so the above exclusions may not apply to Licensee. In that event, any implied warranties are limited in duration to 30 days from the date of purchase of the SUBSCRIPTION, as applicable. However, some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Licensee.
12. Other Warranties. All warranties or guarantees given or made by Licensor with respect to Software or the user documentation (1) are solely for the benefit of Licensee as the registered user of the Software and are not transferable, and (2) shall be null and void if Licensee breaches any term or condition of this Agreement.
13. Limitations of Liability and Damages.
a. The entire cumulative liability of Licensor for any reason arising from or relating to this agreement shall be limited to the amount paid by Licensee for the SUBSCRIPTION OF THE software to the Licensor. To the maximum extent permitted by applicable law, Licensor are not liable for any direct, indirect, special, incidental, exemplary or consequential damages or for damages relating to loss of business, telecommunication failures, loss, corruptions, security or theft of data, viruses, spyware, loss of profits or investment, whether based in contract, tort (including negligence), strict liability, product liability or otherwise, even if Licensor has been advised of the possibility of such damages and even if a remedy set forth has been found to have failed of its essential purpose. Licensee expressly agrees that use of this Software is at the Licensee’s sole risk. In no event will Licensor be liable for any loss, cost, liability, or damage incurred as a result of Licensee’s receipt of or participation in third party services or third party websites. In no event does Licensor assume any liability to any party other than Licensee arising out of Licensee’s use or inability to use the Software. The limitations of damages set forth above are fundamental elements of the basis of bargain between Licensor and Licensee. Licensor would not be able to have provided Software without such limitations.
b. Force Majeure. The Licensor shall be under no liability to the Licensee in any way whatsoever for destruction, damage, delay or any other matters of any nature whatsoever arising out of war, rebellion, civil commotion, strikes, lock-outs or industrial disputes, fire, explosion, earthquakes, acts of God, flood, drought, bad weather or power outages; the unavailability of deliveries, supplies, software disks or other media or the requisitioning or other act or order by any government department, council or other constituted body.
c. The Software provided by Licensor are for Licensee’s personal, non-commercial use only, and Licensee agrees to indemnify and defend Licensor for any claims or lawsuits, including attorney’s fees, that arise from or result from Licensee’s use of the Software on a professional or commercial basis.
14. Consent to Conduct Business Electronically (“Consent”)
a. Consent to Electronic Communications. Licensor may be required by law to send “Communications” to Licensee that may pertain to the Software and the use of information Licensee may submit to Licensor. Licensee agrees that Licensor may send Communications to Licensee by email and/or may make Communications available to Licensee by posting them at one or more of Licensor’s websites. Licensee consents to receive these Communications electronically. The term “Communications” means any notice, record, agreement, or other type of information that is made available to Licensee or received from Licensee in connection with the Software.
b. Consent to Do Business Electronically. The decision whether to do business electronically is Licensee’s, and Licensee should consider whether Licensee has the required hardware and software capabilities described below. Licensee’s consent to do business electronically, and our agreement to do so, applies to this Agreement, the Software, and any applicable Services.
c. Hardware and Software Requirements. In order to access and retain an electronic record of Communications, Licensee will need: a computer, a monitor, a connection to an Internet service provider, an Internet browser software, and an e-mail address. By selecting the “I accept” button (or performing an equivalent action), Licensee is confirming that Licensee has the means to access, and to print or download, Communications. Licensor does not provide ISP services. Licensee must have own Internet Service Provider.
d. Withdrawal of Consent. If Licensee later decides that Licensee does not want to receive future Communications electronically, Licensee may write to Licensor to withdraw consent. If Licensee withdraws consent to receive Communications electronically, we may terminate Licensee’s use of Support for this Software.
e. Changes to Email Address. Licensee agrees to notify Licensor promptly of any change in Licensee’s email address.
a. Completeness. This Agreement (and any additional terms and conditions with which Licensor amends or supplements this Agreement), is a complete statement of the agreement between Licensee and Licensor, and sets forth the entire liability of Licensor and Licensee’s exclusive remedy with respect to the Software, user documentation, and any Services connected with their use. This Agreement supersedes any prior representations, discussions, undertakings, communications, or advertising oral or written related to the Software. Licensee agrees that Licensor is not acting as Licensee’s agent or fiduciary in connection with Licensee’s use of the Software or any Services.
b. Modifications. The Suppliers, agents, employees, distributors, and dealers of Olive Tree Media, L.L.C., are not authorized to make any additional representations, commitments, or warranties binding on Licensor. Any waiver of the terms herein by Licensor must be in a writing, signed by an authorized officer of Olive Tree Media, L.L.C., and expressly reference the applicable provisions of this Agreement. Licensor shall have the right to change or add to the terms of its Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of Software (including internet based services, pricing, technical support options, and other product-related policies) upon notice by any means Licensor determines in its discretion to be reasonable, including posting information to any of the Olive Tree Media Websites concerning any such change, addition, deletion, discontinuance or conditions in Software. Licensee has 15 days after Licensor’s publication of any such changes to review and terminate this Agreement as modified. During the 15 days, this Agreement, prior to modification, shall control. Any use of the Software by Licensee after 15 days Licensor’s publication of any such changes shall constitute Licensee’s acceptance of this Agreement as modified. In the event that the Licensee does not accept this Agreement as modified, the Licensee may terminate this Agreement in accordance with section 18 of this Agreement.
c. Liability for Delay. Licensor shall not be liable for any default or delay in the performance of its obligations under this Agreement to the extent its performance is delayed or prevented due to causes beyond its reasonable control, such as acts of God, natural disasters, terrorist acts, war or other hostilities, labor disputes, civil disturbances, the actions or omissions of third parties, electrical or communication system failures, or governmental action.
d. Invalidity of Provision. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, including the severing of the provision in question, if necessary, and the remaining provisions will continue consistent with the agreement as a whole in full force and effect.
e. Waiver. Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of that party’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice that party’s rights to take subsequent action.
f. Interpretation of Agreement. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. As used in this Agreement “including” means “including but not limited to.” This Agreement does not limit any rights that Licensor may have under trade secret, copyright, patent or other laws.
a. Licensee and Licensor agree that the Agreement, and Licensee’s relationship with Licensor under the Agreement, shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions.
b. Any claim, dispute, or controversy (whether in contract, tort, or otherwise, whether preexisting present or future, and including statutory, consumer protection, common law, intentional tort and equitable claims) between Licensee and Licensor arising from or relating to the AGREEMENT or Software, its interpretation, or the breach, termination or validity thereof, the relationships which result from the AGREEMENT (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement) shall be exclusively and finally settled by arbitration. The arbitration shall be held in Houston, Texas and conducted in accordance with the commercial arbitration rules of the American Arbitration Association. The Arbitration shall be conducted before three Arbitrators, one selected by each of the parties, and the third selected by the first two arbitrators. Judgment upon the award rendered may be entered in any court having jurisdiction, or application may be made to such court for judicial acceptance of the award and in order of the enforcement as the case may be.
c. LICENSOR’S ENTIRE LIABILITY UNDER THIS SECTION IS LIMITED BY SECTION 13A OF THIS AGREEMENT; IN THE ALTERNATIVE, LICENSOR’S ENTIRE LIABILITY UNDER THIS SECTION IS LIMITED TO amount paid by Licensee for the SUBSCRIPTION OF THE software to the Licensor.
a. Licensee’s rights under this Agreement may be terminated by Licensor immediately and without notice if Licensee fails to comply with any term or condition of this Agreement or no longer consents to electronic Communications.
b. Licensee’s rights under this Agreement terminate upon expiration of the Subscription Duration.
c. This Agreement shall terminate and any and all rights granted to the Licensee hereunder shall revest in the Licensor should the Licensee, its successors or permitted assigns, suspend business, make an absolute assignment of the bulk of its assets for the benefit of creditors, consent to the appointment of a trustee, custodian or receiver, or be declared insolvent or bankrupt; or if a trustee or custodian or receiver is appointed for the Licensee for a substantial part of its property without its consent and is not discharged within sixty (60) days of such appointment, or if bankruptcy reorganization, rearrangement, insolvency or liquidation proceedings are instituted by or against the Licensee and are not dismissed within sixty (60) days of the commencement thereof.
d. Upon termination, the Licensee shall pay to the Licensor all costs and expenses, including legal and other fees incurred and all arrearages of fees, charges or other payments arising in respect of the Software, this Agreement or otherwise. Upon termination, Licensee must immediately cease using the Software. Further, within 14 days after the date of termination or discontinuance of this Agreement, Licensee agrees to destroy the Software and all updates, upgrades or copies, in whole and in part, in any form including partial copies of the Software, and all documentation relating thereto and certify in writing that the Licensee has complied with this subsection.
e. Termination of this Agreement shall be in addition to and not in lieu of any rights and remedies the Licensor may have under this Agreement or under the applicable law.
f. When this Agreement comes to an end or is otherwise terminated, all of the legal rights, obligations and liabilities that the Licensee and Licensor have benefited from, been subject to (or which have accrued over time whilst the Agreement has been in force) shall be unaffected by this cessation.
18. Export Restrictions. Licensee acknowledges that this software is subject to the U.S. Export Administration Regulations (15 CFR, Chapter VII) and that Licensee will comply with these regulations. Licensee will not export or re-export this product, directly or indirectly, to (1) any countries that are subject to U.S. export restrictions; (2) any end user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; or (3) any end user who Licensee knows or has reason to know will utilize them in the design, development or production of nuclear, chemical, or biological weapons. Licensee further acknowledges that this product may include technical data subject to export and re-export restrictions imposed by U.S. Law. By accepting this agreement, Licensee represents and warrants that Licensee is not located in, under the control of, or a national or resident of any such country discussed above.
19. U.S. Government Restricted Rights. The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212, all U.S. Government End Users acquire the Software with only those rights set forth herein.
Copyright © 2018, Olive Tree Media, LLC