1. Software Loaned by FUJIFILM VisualSonics Inc. (“VSCA”) or FUJIFILM VisualSonics Corporation (“VSUS”).
VSCA or VSUS from time to time may loan to a facility or individual (a “Borrower”) for the Term (defined below), free of charge, solely to evaluate for possible purchase of a license, VisualSonics Software (the “Loaned Software”). Such software loans are made to Borrower subject to these Standard Terms and Conditions (this “Agreement. VSCA or VSUS may provide updates and other maintenance for the Loaned Software at no charge to Borrower. For purposes of this Agreement, “VSI” refers to VSCA if VSCA is making the Loaned Software available to Borrower, or VSUS if VSUS is making the Loaned Software available to Borrower.
2. Acceptance of this Agreement and Borrower Certification
BORROWER’S USE OF THE LOANED SOFTWARE MADE AVAILABLE TO BORROWER BY VSI, FOLLOWING VSI’S ACTIVATION OF THE SOFTWARE AND BORROWER’S RECEIPT OF NOTICE OF THIS AGREEMENT BY EMAIL OR OTHERWISE FROM VSI, CONSTITUTES BORROWER’S ACCEPTANCE OF THIS AGREEMENT FOR ALL PURPOSES. THIS AGREEMENT CONSTITUTES THE COMPLETE AGREEMENT BETWEEN BORROWER AND VSI CONCERNING ITS SUBJECT MATTER. ANY ADDITIONAL OR DIFFERING TERMS ARE HEREBY EXPRESSLY REJECTED BY VSI. By the act of such acceptance and agreement to this Agreement, Borrower also acknowledges that this loan of the Loaned Software is not intended to induce any referrals or the purchase of any products or services, and certifies that the Loaned Software will be used with equipment located on Borrower’s premises at all times during the Term, and only be used in accordance with the indications for use and directions included in its instruction manuals (e.g., User Guides) and other labeling (together with any supplementary instructions as may be communicated in writing to Borrower by VSI from time to time).
3. Term and Termination
The term of this Agreement (the “Term”) will begin on the date the Loaned Software is received by Borrower and activated by VSI, and, except as otherwise indicated, terminate upon the soonest of: (i) automatic programmed deactivation or uninstallation of the Loaned Software, (ii) thirty (30) calendar days after activation of the Loaned Software, or (iii) VSI’s direct activation or uninstallation of the Loaned Software for any reason. Sections 4 through and including 12 hereof will survive termination of the Term.
4. Title to Loaned Software
Title to the Loaned Software is and shall at all times remain with VSI. Borrower shall at all times keep the Loaned Software free and clear of all liens, attachments, encumbrances, charges, levies or other judicial process of any kind whatsoever.
5. Software Standard of Care
Borrower shall retain and protect the Loaned Software with at least the same degree of care with which it holds its own property, but in any event no less than reasonable care. Borrower shall assume all risk of liability for loss or damage to the Loaned Software while it is under Borrower’s care and control, unless such loss or damage arises from the gross negligence or willful misconduct of VSI.
6. Reverse Engineering
Borrower shall not, and shall not attempt to, disassemble, decompile, reverse engineer or derive source code from all or any portion of the Loaned Software, or permit or encourage any third party to do the same, at any time.
7. NO WARRANTY
VSI IS PROVIDING THE LOANED SOFTWARE TO BORROWER ON AN “AS IS” BASIS AND MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (WHETHER BY STATUTE OR OTHERWISE), WITH REGARD TO THE LOANED SOFTWARE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY PROPRIETARY RIGHTS OF ANY THIRD PARTY.
8. Intellectual Property
Borrower does not have any rights to any pre-existing intellectual property and proprietary rights in the Loaned Software, and any improvements or modifications thereto (“Software IP”) shall be considered to be developed solely and independently by VSI. Borrower hereby assigns any rights it may have in and to Software IP to VSI and shall assist it as needed to perfect VSI’s interest in Software IP.
9. Indemnification; Limitation of Liability
To the extent legally permissible, Borrower shall defend, indemnify and hold harmless VSI, its officers, employees and agents from and against any and all liability, loss, expense (including reasonable legal fees and expenses), or claims for injury or damages arising out of (i) possession, use, misuse or operation of the Loaned Software, or (ii) any breach by Borrower of this Agreement. Under no circumstances will either party be liable to the other party for any special, punitive, indirect, incidental or consequential damages of any kind, even if such damages result from negligence or other fault of the other party, whether such damages are labeled in tort, contract or indemnity, even if the parties have been advised of the possibility of such damages. Under no circumstances shall VSI’s aggregate monetary liability under this Agreement, if any and howsoever arising, exceed $1,000.
10. Compliance
The parties represent that the arrangement set forth in this Agreement shall not be construed to be an inducement to purchase any software or service from VSI or any affiliate of VSI. Nothing in this Agreement is intended to be, nor shall it be construed as, an offer or payment made, whether directly or indirectly, to induce the purchase, lease or order of any item or service, or the arranging for the purchase, lease or order of any item or service. Borrower acknowledges that this Agreement may be subject to public disclosure by it and/or VSI under applicable laws and regulations. If and to the extent that Borrower or VSI reasonably deems such disclosure by it to be required or prudent, it will report the details of the arrangement set forth in this Agreement in accordance with applicable law. Borrower represents and warrants that, in accepting this Agreement and completing the transactions contemplated by this Agreement, Borrower has complied with its own procurement policies and with the requirements of any applicable public-sector procurement laws.
11. Entire Agreement; Amendment
As noted above, this Agreement constitutes the entire agreement between the parties and supersedes all prior oral or written agreements between the parties with respect to the subject matter hereof and may only be amended by mutual written consent of the parties (subject to the rights of VSI to issue supplemental instructions in respect of the User Guide pursuant to Section 2). Any other attempt to amend or modify this Agreement, including, but not limited to, handwritten insertion of additional terms into this document, shall have no force or effect even if initialed by representatives of VSI and/or the Borrower.
12. Miscellaneous
The validity and interpretation of this Agreement (i) if the Loaned Software has been made available to Borrower by VSCA, shall be governed by the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein, in both cases without regard to its conflict of laws provisions, or (ii) if the Loaned Software has been made available to Borrower by VSUS, shall be governed by the laws of the State of Washington, U.S.A. without regard to its conflict of laws provisions. If any provision hereof is found to be invalid, illegal or unenforceable by a court of competent jurisdiction, then, to the extent permitted by law, the validity, legality and enforceability of the remaining provisions will not be affected. The failure of either party to enforce any term or condition contained in this Agreement shall not be deemed a waiver of that party's right thereafter to enforce each and every such term and condition of this Agreement.