IMPORTANT: Read the text of this End User Soft-ware License Agreement (EULA) carefully. The grant of the right to use the Software is made solely on condi-tion that the Licensee agrees to the terms and conditions of this EULA. If the Licensee does not agree to the terms and conditions of this EULA, it is not authorised to use the Software. By making an agreement with the authorized distributor of Novocam Medical Innovations Oy (“NMI”) or with NMI according to which the Product incorporating the Software is delivered by the said authorized distributor of NMI or by NMI (the “Agreement”) to the Licensee or using the Product, the Licensee indicates its acceptance of and is bound by the terms and conditions of this EU-LA. The terms and conditions of this EULA shall be an integral part of the Agreement.
1.PURPOSE OF THE AGREEMENT The following terms and conditions set forth the terms and conditions under which NMI grants to the Licensee the right to use the Software. The terms and conditions of this EULA may be supple-mented or amended only by a written agreement between NMI and the Licensee. Each such written agreement modifies this EULA only to the extent express written provisions depart from the terms and conditions specified herein. All other terms and conditions shall apply as set forth herein. Notwithstanding the aforesaid, any up-grades or updates to the Software may be subject toamended or separate end user license terms and condi-tions. By using such updated or upgraded version of the Software the Licensee agrees to comply with the amend-ed EULA
2.DEFINITIONS For the purposes of this EULA the below definitions(and where the context so admits the singular shall in-clude the plural and vice versa) shall govern the follow-ing: “EULA” shall mean the terms and conditions of this End User Software License Agreement. “Licensee” shall mean the entity which or person who makes, or intends to make, use of the Products as legal owner having pur-chased the Products. “Product” shall mean the [dental HD Camera equipment] manufactured by NMI and incorporat-ing the Software. “Software” shall mean the software in-corporated in the Product and being subject to this EULA
3.SCOPE OF LICENSE NMI hereby grants the Licensee a non-transferable and non-exclusive license to use the Software exclusively in connection with the Product and in strict compliance with the terms and conditions of this EULA. The license does not extend any rights to the Licensee in respect of the source code of the Software. The Licensee shall not use, rent, lease or sell the Soft-ware independently or make it available apart from the Product. The Licensee shall not have the right to install the Software in the Products by itself. The Licensee acknowledges and agrees that the Software shall be in-stalled in the Products by the authorized distributor of NMI or by NMI as the case may be. The Licensee may not copy, publish, translate, modify, adapt, decompile, disassemble or reverse engineer or otherwise attempt to discover the source code or the structural framework of the Software, or any portion thereof, except and only to the extent that such activity is expressly permitted by the mandatory provisions of the applicable law in lieu of this limitation. The Licensee agrees not to remove any logos, trademarks and symbols used by NMI to identify its Software on the Product.
4.OWNERSHIP Title to the Software and all patents, copyrights, design rights, trade secrets, trademark (whether registered or unregistered) and other intellectual property rights in or related to the Software are and will remain the exclusive property of NMI and its licensors, whether or not specif-ically recognized or perfected under the laws of the country where the Software is located. The Licensee will not take any action that jeopardizes such proprietary rights or acquire any right in the Software, except the limited use rights specified in this EULA. NMI (and its licensors) will own all rights in any copy, translation, modification, adaptation or derivation of the Software, including any improvement or development thereof.
5.INDEMNITY The Licensee accepts and agrees that the enforcement and protection, including the decision of whether or not to prosecute infringements or maintain registrations of NMI’s intellectual property rights in the Software will be in the sole discretion and control of NMI, and any and all recoveries resulting from such actions will be retained by NMI. The Licensee shall execute such documents and provide such additional co-operation to NMI, at NMI’s expense, as NMI reasonably may request in order to perfect, evidence, protect or secure such intellectual property rights and to conduct such prosecution, registra-tion or defence. Subject to the terms of this EULA, NMI undertakes to indemnify the Licensee for any direct cost, loss or dam-age finally awarded by a competent court in the applica-ble jurisdiction, or by settlement agreements approved by NMI, amounts arising out of infringement of copyrights of third parties by the Software, provided that: a)in case of any claim of infringement, the Licensee shall immediately notify NMI and afford NMI with every possibility to, at NMI’s option (and at no cost to the Licensee) (i) modify the Software so as to make it non-infringing, (ii) obtain a license from the owner of the right that is alleged to be infringed by the Software, (iii) to terminate the license, and/or (v) defend itself against the claim of in-fringement; b)the foregoing shall not apply in cases where (and to the extent that) the claim for infringement is based on any modification of the Software, combination of the Software with other equipment (whether hardware or software) than the Product; and
6.CONFIDENTIALITY The Licensee acknowledges that the Software incorpo-rates confidential and proprietary information developed or acquired by NMI. The Licensee will take all reasona-ble precautions necessary to safeguard the confidentiality of the Software. The Licensee will not allow the removal or defacement of any confidentiality or proprietary notice placed on items of Software. “Confidential Information” means each component of the Software, whether in object code or source codeform, any statement of work, the functional specifica-tions agreed upon in the Agreement, functional descrip-tions, diagrams, graphs, models, trade secrets, sketches, technical data, research, development information, busi-ness or financial information, plans, strategies, forecasts, forecast assumptions, business practices, marketing in-formation and materials, customer names, proprietary ideas, concepts, know-how, methodologies, other, whether marked confidential or not, and all other infor-mation of NMI, its affiliated companies or third parties to whom NMI has a duty of confidentiality, or any other information or material otherwise coming to the knowledge of the Licensee in connection with the Agreement. The Licensee will not disclose, in whole or in part, any Confidential Information to any person. The Licensee will have no confidentiality obligation with respect to any portion of the information that (i) the Li-censee independently knew or developed before receiv-ing any of the Confidential Information (as proven by the written records of the Licensee); (ii) the Licensee lawful-ly obtained from a third party under no obligation of confidentiality; or (iii) became available to the public other than as a result of an act or omission of the Licen-see or any of its employees, agents or consultants.
7.LIMITATION OF LIABILITY AND DIS-CLAIMER OF WARRANTIES NMI may not be held liable for defects or dysfunction of the Software and/or the Product due to (i) lack of qualifi-cation and competence on the part of the persons using it, and/or (ii) changes made by the Licensee, a third party other than NMI or not previously certified in writing by NMI, and/or (iii) software and/or equipment not supplied and installed by NMI or its authorized distributor.NMI SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA OR LOST PROFITS) PERTAINING IN ANY WAY TO THE SOFTWARE, OR TO ANY OF NMI’S OBLIGATIONS UNDER THIS EULA, EVEN IF NMI HAS BEEN MADE AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES. EXCEPT TO THE EXTENT ANY LIABILITY OF NMI IS NOT CAPABLE OF BEING EXCLUDED AT LAW, NOTWITHSTANDING ANY DAMAGES THE LI-CENSEE MAY INCUR FOR ANY REASON WHAT-SOEVER, THE ENTIRE LIABILITY OF NMI AND THE LICENSEE’S EXCLUSIVE REMEDY HERE-UNDER SHALL BE LIMITED TO THE ACTUAL DAMAGES INCURRED BY THE LICENSEE IN REASONABLE REALIANCE ON THE SOFTWARE UP TO THE AMOUNT ACTUALLY PAID BY THE LICENSEE FOR THE PRODUCT INCORPORATING THE SOFTWARE. THE LICENSEE ACCEPTS AND AGREES THAT ANY USE OF THE SOFTWARE BY THE LICENSEE IS AT ITS OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFT-WARE IS PROVIDED “AS IS” AND NMI HEREBY DISCLAIMS ALL WARRANTIES AND CONDI-TIONS, WHETHER EXPRESS, IMPLIED, STATU-TORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY (IF ANY) IMPLIED WARRAN-TIES OF MERCHANTABILITY, OF NON-INFRINGEMENT, OR FITNESS FOR A PARTICU-LAR PURPOSE, OF RELIABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RE-SULTS, AND OF LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE SOFTWARE. THE DISCLAIMER OF WARRANTIES DOES NOT LIMIT THE RIGHTS OF A CONSUMER PROVIDED BY THE MANDATORY PROVISIONS OF APPLI-CABLE LAW.
8.TERM AND TERMINATION This Licence shall commence on the date on which Li-censee purchases the Product. The Licensee’s right to use the Software will terminate automatically if the Licensee ceases to own, possess or operate the Products. The rights granted to the Licensee under the EULA may be terminated by NMI upon a material violation by the Licensee of any terms or conditions contained herein which is not remedied by the Licensee within a reasona-ble period specified by NMI in a written notice drawing attention to the violation and requiring it to be remedied. Termination by NMI shall be made by written notice that is delivered to the Licensee not less than 30 days prior to the effective date of termination specified in the notice. Said notice of termination shall be without effect if the Licensee cures all breaches that gave rise to termination prior to the effective date of termination. Upon termination by NMI, all rights granted in respect of the Software to the Licensee under this EULA will im-mediately cease, the Licensee shall make no further use of the Software and the Software shall be uninstalled from the Product. The Licensee shall return to NMI all Confidential Information relating to the Software in its possession. Termination shall be without prejudice to any accrued rights and liabilities of the parties at the date of termination.
9.APPLICABLE LAW AND DISPUTE RESOLU-TION This EULA is governed by and construed in accordance with the laws of Finland excluding its choice of laws provisions.The application of United Nations Conven-tion on Contracts for the International Sale of Goods done at Vienna is expressly excluded. Any controversy or claim arising out of or relating to the terms and conditions of this EULA shall be primarily settled by negotiations. Any disputes arising from or relating to the terms and conditions of EULA shall be finally settled in arbitration in Helsinki in accordance with the Arbitration Rules of the Arbitration Institute of the Finland Central Chamber of Commerce. The arbitra-tion tribunal shall consist of one (1) arbitrator appointed by the Institute. The arbitration proceeding shall be con-ducted in Finnish. Notwithstanding the aforesaid, under the laws of the country where the Licensee is located, the Licensee may have additional rights and remedies on the basis of the mandatory provisions of the local consumer protection legislation. This Agreement does not affect on suchrights and remedies.