Midmark Anesthetic Record Interface Software License and Subscription Terms

By selecting “I Agree,” or accessing or installing the Software being offered, you agree to be bound by the below terms. For purposes of this Agreement (the “Agreement”) you are referred to as “you/your” and Midmark Corporation is referred to as the “Licensor.”

IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT SELECT THE BUTTON THAT INDICATES YOU AGREE, AND DO NOT INSTALL THE SOFTWARE.

This Agreement sets forth the terms and conditions of your use of the accompanying Midmark Anesthetic Record Interface Software (the "Software").

1. License Grant

   Licensor hereby grants to you a non-exclusive, non-assignable, non-transferable, limited license to use the Software and any related documentation (the "Documentation") according to the provisions contained herein and subject to payment of applicable license fees. You are not permitted to lease, rent, distribute, sell, or sublicense the Software or any rights therein. You also may not make any copy of the Software, install the Software on a network server, use the Software in a time-sharing arrangement, or in any other unauthorized manner. Further, no license is granted to you in the source code of the Software. Except as provided below, this Agreement does not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in the Software and Documentation.

   You agree that you have no right, power, or authority to make any modifications to or unauthorized copies of the Software.

2. No Assignment; No Transfer

   You agree not to transfer or assign the Software and/or this Agreement to another party without the prior written consent of Licensor. If such consent is given and you transfer or assign the Software and/or this Agreement, then you must at the same time either transfer any copies of the Software and Documentation to the same party, or destroy or return to Licensor any such materials not transferred. Except as set forth above, you may not transfer or assign the Software or rights under this Agreement.

3. No Modification; No Reverse Engineering

   You agree not to modify, translate, reverse engineer, decompile, disassemble, or create derivative works of the Software or assist someone in performing such prohibited acts.

4. Law; Import/Export Restrictions

   You are responsible for compliance with all applicable laws, regulations, rules, and legal requirements. You agree not to import or export the Software or any Documentation (or any copies thereof), or any products utilizing the Software or any Documentation in violation of any applicable laws or regulations of the United States or the country to which you have imported or exported. You agree to indemnify Licensor from liability if you violate any such laws or regulations.

5. Title

   You agree that Licensor owns and holds all right, title, and interest to the Software and any Documentation, and all subsequent copies thereof regardless of the form or media. Furthermore, all title, ownership rights, and intellectual property rights in the Software and any Documentation shall remain with Licensor, including all corrections, enhancements, or other modifications made thereto. All rights not expressly granted to You under this Agreement are reserved by Licensor.

6. Data Collection and Usage

   You acknowledge that Licensor may gather certain data regarding your use of the Software and may view and/or record information transferred and/or stored by the Software (collectively, the “Data”). In consideration for your use of the Software, and to the extent that you have rights in the Data, you hereby grant to Licensor a non-exclusive, worldwide, transferable, sublicensable, perpetual license to use, reproduce, make derivative works of, distribute, and display the Data. Notwithstanding any of the foregoing, Licensor agrees that any Data it shares with third parties will be anonymized and will not include any personal identifying information.

7. Term and Termination

   This license to use the Software is offered only under a recurring subscription. This Agreement and license will automatically renew one (1) year from the date of your initial purchase and will continue to automatically renew each subsequent year thereafter until you cancel. You may cancel your subscription at any time by using the account and login credentials to access the account you established at the time of purchase. If you cancel your subscription after paying subscription fees, but prior to the renewal date, this Agreement will continue in force until the next renewal date at which point this Agreement and your license to use the Software will terminate. Your license to use the Software will also terminate immediately if you fail to comply with any term or condition of this Agreement, file for bankruptcy, become insolvent, or are placed in receivership. Licensor may terminate this Agreement at any time and at its sole discretion and convenience. Upon termination, you agree to immediately (i) stop all use of the Software and Documentation, (ii) delete and/or destroy the Software and Documentation, together with all copies thereof, and (iii) upon request from Licensor, certify to Licensor that all copies of the Software and Documentation have been deleted or destroyed. You agree that under no circumstance will you be entitled to a refund of any applicable license fee upon termination of this Agreement. Sections 3, 5, 6, 7, and 9 through14 shall survive any termination or expiration of this Agreement.

8. Fees

   Upon initial purchase and, in the absence of you electing to cancel your subscription, at each subsequent annual anniversary of the date of your initial purchase, you agree to pay to Licensor the then-current subscription fees in exchange for one (1) year of license rights. Licensor or its third-party service provider will charge subscription fees to the payment method you provide, or, in the case of any renewal, to the payment method which Licensor has on file for you. If Licensor is unable to process payment or you cancel your subscription or choose not to provide payment for any upcoming renewal period, your license to use the Software will be automatically terminated at the conclusion of any current subscription period. Licensor reserves the right, at Licensor’s sole discretion, to determine fee amounts. You consent to Licensor’s use of third-party service providers for fee collection processing and authorize such third-party service providers’ collection, use, and disclosure of your transaction data, to include name, addresses, and payment method information, in accordance with such third-party service providers’ terms and policies (available HERE, HERE, and HERE).

9. Governing Law

   The laws of the State of Ohio shall govern the construction of this Agreement and you agree to be subject to personal jurisdiction in the State of Ohio for the purposes of enforcing the provisions of this Agreement.

10. Limited Warranty

    Licensor warrants that for a period of thirty (30) days from the date of acquisition, the Software, if operated as directed, will substantially achieve the functionality described in any Documentation. Licensor does not warrant, however, that your use of the Software will be uninterrupted or error-free. Licensor also warrants that the media containing the Software, if provided by Licensor, is free from defects in material and workmanship and will so remain for thirty (30) days from the date you acquired the Software.

    Licensor's sole liability for any breach of this warranty shall be, in Licensor's sole discretion (i) to replace your defective media or Software, or (ii) to advise you how to achieve substantially the same functionality with the Software as described in any Documentation through a procedure different from that set forth in any Documentation, or (iii) if the above remedies are impracticable, to refund the license fee you paid for the Software. Repaired, corrected, or replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software.

    Only if you inform Licensor of your problem with the Software during the applicable warranty period and provide evidence of the date you purchased or obtained a license to the Software will Licensor be obligated to honor this warranty. Licensor will use reasonable commercial efforts to repair, replace, advise or, for individual consumers, refund pursuant to the foregoing warranty within thirty (30) days of being so notified.

    If any modifications are made to the Software by you during the warranty period, or if you violate the terms of this Agreement, then this warranty shall immediately terminate and be void. This warranty shall not apply if the Software is used on or in conjunction with hardware or software other than the unmodified version of hardware and software which the Software is designed to be used as described in the Documentation.

    THIS IS A LIMITED WARRANTY, AND THE WARRANTY SET FORTH IN THIS AGREEMENT IS THE ONLY WARRANTY MADE BY LICENSOR. LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS. TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD. NO DEALER, AGENT, OR EMPLOYEE OF LICENSOR IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU.

11. Limitation of Liability

    UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL LICENSOR, OR ITS SUPPLIERS OR RESELLERS, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTIONS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER PERSONAL OR COMMERCIAL DAMAGES OR LOSSES ARISING FROM THE USE OR INABILITY TO USE THE SOFTWARE (WHETHER OR NOT DUE TO ANY DEFECTS THEREIN). IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORSEEABLE, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM LICENSOR'S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. IN NO EVENT SHALL LICENSOR’S LIABILITY EXCEED THE PURCHASE PRICE PAID BY YOU FOR THE SOFTWARE.

12. Indemnification

    You agree to defend, indemnify, and hold harmless Licensor, its officers, directors, employees, suppliers, and its resellers from and against all liabilities, costs, damages, and expenses (including settlement costs and reasonable attorneys' fees) arising from any third party claims that result from or relate to your misuse of the Software, or your use of the software in a manner that results in the infringement or alleged infringement of a third party’s intellectual property rights.

13. Severability

    In the event any provision of this Agreement is found to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any of the remaining provisions shall not in any way be affected or impaired.

14. Waiver

    The failure or delay by Licensor to require performance of any provision of this Agreement does not constitute a waiver. All waivers by Licensor must be provided in writing and signed by Licensor in each instance, and a waiver in one instance does not constitute a waiver in any subsequent instance.

15. Entire Agreement

    You agree that this Agreement is the complete and exclusive statement of the agreement between you and Licensor at the time of the Agreement, and supersedes all proposals or prior agreements, oral or written, and all other communications between you and Licensor relating to the subject matter of this agreement.

16. Acknowledgment

    By downloading, installing, or using any part of this Software, you represent and warrant that you have read this Agreement, understand it, and agree to be bound by its terms and conditions and that you are authorized to bind any party on behalf of which you are acting to these terms and conditions.

17. Changes to this Agreement

    Licensor and its third-party service providers reserve the right to modify the terms and conditions of this Agreement from time to time with reasonable notice to you. You must accept the modifications to continue using the Software.

18. Force Majeure

    Neither party shall be liable hereunder to the other party for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is on account of causes beyond its control, including, but not limited to, labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, public health related orders or quarantines, pandemic, casualty, government authority, strikes, or acts of God, in which event each party shall be excused from its obligations for the period of the delay and for a reasonable time thereafter.