Midmark Anesthetic Record Interface – Limited Release Software License and Subscription Terms and Conditions

By selecting “I Agree,” or accessing or installing the Software being offered, you agree to be bound by the below terms. For purposes of these Limited Release Software License and Subscription Terms and Conditions (the “Agreement”) you are referred to as “Customer” and Midmark Corporation is referred to as “Midmark.” Customer and Midmark are each a “Party” and, collectively, the “Parties.”

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.

WHEREAS, Midmark desires Customer to provide end-user feedback regarding Customer’s use of a limited release version of the Midmark Anesthetic Record Interface Software (“Software”); and

WHEREAS, Customer has purchased a Midmark Multiparameter Monitor (“Product”) compatible with the Software and expressed a willingness to participate as a limited release participant in accordance with the terms and conditions set forth in this Agreement;

NOW, THEREFORE, in consideration of the Parties’ mutual participation in this Agreement and the covenants, promises, and agreements contained herein, the Parties agree as follows:

1  Customer Obligations

1.1 Software installation and use:  Customer agrees to allow Midmark personnel and/or other third-party service providers acting on behalf of Midmark, to access Customer’s facilities and information technology systems for the purposes of installing the Software and connecting the Product and Software to Customer’s information technology systems.

1.2 Information technology and infrastructure:  Customer agrees to allow the Product to be connected to Customer’s local data network and further acknowledges that, as part of its participation in the activities outlined in this Agreement, Customer must maintain a reliable internet connection in its facilities for use in connecting the Product to the internet. 

1.3 Research and feedback: 

1.3.1 Customer agrees that, upon request by and in coordination with Midmark, Customer will engage in research and/or feedback sessions (“Sessions”) with Midmark in response to Midmark’s reasonable requests for such Sessions. 

1.3.2 The Sessions will cover Customer’s general impressions and thoughts regarding use and performance of the Software, reporting of Software and Product errors or concerns that might be observed by Customer, any suggested modifications or improvements to the Software, new Software features or functionality that may or may not be commercially available, Customer’s overall satisfaction with the Software and Product, and/or other topics similar to those just listed.  

1.3.3 The Sessions may consist of telephone or video conference calls, surveys, and/or on-site observations as determined by Midmark, on a case-by-case basis, taking into account the approach that will most effectively meet Midmark’s research and/or feedback needs.

1.3.4 In coordination with Midmark, Customer agrees to make available various personnel from its office that interact or otherwise have experience with the Software for each Session.

1.4 Non-disparagement:  Customer agrees that it will not, either on its own account or directly or indirectly in conjunction with or on behalf of any other person, disparage or otherwise speak or write negatively about Midmark or the Software.

 2  Midmark Obligations

2.1 Fees:  In consideration for Customer acting as a limited release partner pursuant to this Agreement, Midmark shall provide the Software along with connection assistance and support services, at a cost to Customer of $1.00 USD during the term of this Agreement.

2.1.1 If Customer wishes to continue to use the Software after the term of this Agreement, then Customer will be required to pay the then-current annual subscription fee as established by Midmark and agree to Midmark’s then-current terms and conditions governing such subscription.

2.2  Support services:  During the term of this Agreement, Midmark will provide telephone and remote support with respect to use and functionality of the Software during Midmark’s regular business hours.  The contact information for this support is as follows: 

Phone:  1.800.Midmark, Press 2

Email:  techsupport@midmark.com

Hours of operation:  Monday – Thursday, 8:00 am to 6:00 pm ET; and Friday, 8:00 am to 5:00 pm ET (Hours are subject to change and do not include holidays)

3  Software License and Use

3.1 License Grant: Midmark hereby grants to Customer 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. Customer is not permitted to lease, rent, distribute, sell, or sublicense the Software or any rights therein. Customer also may not make any copy of the Software, use the Software in a time-sharing arrangement, or in any other unauthorized manner. Further, no license is granted to Customer in the source code of the Software. This Agreement does not grant Customer any rights to patents, copyrights, trade secrets, trademarks, or any other rights in the Software and Documentation. Customer has no right, power, or authority to make any modifications to or unauthorized copies of the Software.

3.2  No Assignment; No Transfer: Customer agrees not to transfer or assign the Software and/or this Agreement to another party without the prior written consent of Midmark.

3.3  No Modification; No Reverse Engineering: Customer agrees not to modify, translate, reverse engineer, decompile, disassemble, or create derivative works of the Software or assist anyone else in performing such acts.

3.4  Title: Customer agrees that Midmark 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 Midmark, including all corrections, enhancements, or other modifications made thereto. All rights not expressly granted to Customer under this Agreement are reserved by Midmark.

3.5 Data Collection and Usage: Customer acknowledges that Midmark or its agents or contractors may gather certain data regarding its use of the Software and may view and/or record information transferred and/or stored by the Software (collectively, the “Data”). In consideration for Customer’s use of the Software, and to the extent that Customer has rights in the Data, Customer hereby grants to Midmark 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, Midmark agrees that any Data it shares with third parties who are not affiliates, agents, or contractors of Midmark will be anonymized and will not include any personal identifying information.

4  Term and Termination

4.1 Unless earlier terminated by one of the Parties in accordance with the provisions of this section, the term of this Agreement shall extend for a period beginning on the date the Customer purchases the Software and ending one year thereafter.

4.2 In the event that either Party desires to terminate this Agreement without cause, that Party may do so by providing 30 days written notice to the other Party of such termination. In the event that Midmark, in its sole discretion, elects to cease offering the Software, Midmark may terminate this Agreement upon five days written notice to Customer.

4.3 Notwithstanding any other provision set forth in this Agreement, either Party may terminate this Agreement at any time in the event of a breach by the other Party that remains uncured after 30 days following written notice thereof.  Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party.  Termination shall be in addition to any other remedies that may be available to the non-breaching Party.

4.4  In the event that this Agreement is terminated by either Party prior to completion of the full applicable term, the Parties agree that Midmark shall be entitled to terminate Customer’s ongoing access to the Software.

4.5  Customer’s obligations of confidentiality as set forth in the Confidentiality section of this Agreement shall continue for a period of three years following termination or expiration of this Agreement.

4.6   This Agreement’s sections discussing Intellectual Property, Limitations on Liability, and Warranty Disclaimer shall survive the termination or expiration of this Agreement indefinitely.

5  Intellectual Property

5.1  Customer agrees and acknowledges that Customer’s participation in the activities set forth in this Agreement shall not result in any Customer ownership interest in any data or learnings produced in connection with this Agreement; and that any ideas, concepts, or feedback provided to Midmark by Customer in connection with this Agreement, and any Product improvements resulting therefrom, shall be the sole and exclusive property of Midmark.

6  Confidentiality

6.1 In connection with this Agreement, Midmark may share with Customer certain information that is confidential, proprietary, or otherwise not publicly available, all of which information is of a highly confidential, unique, and valuable nature.

6.2  Confidential Information:  Confidential Information means any information Midmark discloses to Customer, either directly or indirectly, in writing, orally, or by inspection of tangible objects and/or software, including, without limitation, documents, operating plans, financial data, business plans, forecasts, designs, prototypes, test or research results, analysis or data, trade secrets, software, and know how.

6.2.1 All research data, information, ideas, concepts, feedback, etc., produced in connection with this Agreement shall constitute Confidential Information.

6.2.2  Confidential Information shall not, however, include any information that Customer can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure to Customer by Midmark; (ii) becomes publicly known and made generally available to the public through no fault of Customer; or (iii) is in the possession of Customer, without confidentiality restrictions, at the time of disclosure by Midmark.

6.3 Nondisclosure:  Subject to a compelled disclosure discussed below, Customer shall hold in confidence Midmark’s Confidential Information, shall not use or exploit Midmark’s Confidential Information other than in the course of carrying out this Agreement, and shall not disclose Midmark’s Confidential Information to any person or entity other than its employees and contractors who need to know the Confidential Information for purposes of carrying out this Agreement and who are legally bound to protect the confidentiality of such Confidential Information. 

6.3.1 Unless Customer obtains prior consent from Midmark, Customer shall not at any time, directly or indirectly disclose the terms and conditions of this Agreement.

6.4  Compelled Disclosure:  Customer shall promptly notify Midmark in the event that Customer is legally compelled to disclose Confidential Information in a judicial, regulatory, or administrative process, and shall allow Midmark an opportunity to oppose such requirement.  At Midmark’s expense, Customer shall take all reasonable steps provided for in such judicial, regulatory, or administrative process to preserve the confidentiality of the Confidential Information.

6.5 Return of Confidential Information:  All Confidential Information shall remain the property of Midmark.  Unless otherwise agreed in writing, all documents and other tangible objects containing or representing Confidential Information and all copies thereof that are in the possession of Customer shall be and remain the property of Midmark and shall be promptly returned to Midmark upon Midmark’s request.

7   Limitations on Liability

7.1 EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL MIDMARK BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY WITH RESPECT TO THE SOFTWARE OR ANY SUBJECT MATTER RELATED TO THIS AGREEMENT FOR ANY DAMAGES, INCLUDING SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, PROFITS, REVENUE, GOODWILL, ANTICIPATED SAVINGS, OR THE LIKE), WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), FAILURE OF A REMEDY TO ACCOMPLISH ITS PURPOSE, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8  Warranty Disclaimer

8.1  WARRANTY DISCLAIMER:  THE SOFTWARE AND ANY SUBJECT MATTER RELATED TO THIS AGREEMENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; THAT THE SOFTWARE WILL MEET CUSTOMER’S NEEDS; THAT THE SOFTWARE WILL BE UNINTERRUPTED AND ERROR-FREE; THAT INFORMATION POSTED TO OR ACCESSED FROM THE SOFTWARE WILL BE ACCURATE, TIMELY, OR COMPLETE; OR THAT INFORMATION MAINTAINED ON THE SOFTWARE WILL BE FREE FROM UNAUTHORIZED ACCESS, CORRUPTION, OR LOSS.

9  General Provisions

9.1   No failure or delay in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right.  

9.2  This Agreement may not be amended, nor any obligation waived, except by a writing signed by both Parties hereto.

9.3   This Agreement shall be binding upon and inure to the benefit of each Party and their respective successors and assigns.

9.4   Customer acknowledges that Midmark may be irreparably injured by any breach of this Agreement; accordingly, Midmark shall be entitled to seek specific performance and injunctive relief as remedies for any alleged breach (or threatened breach) of this Agreement by Customer.

9.5  In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.

9.6  This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof.

9.7  Nothing contained in this Agreement shall obligate either Party to enter into any further dealings or additional agreements with the other Party.

9.8  This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Ohio, without giving effect to the principles of conflict of laws thereof.  The Parties consent to the jurisdiction of the state and federal courts located in the State of Ohio in any action arising under or relating to this Agreement.  

9.9  The terms of this Agreement shall supersede and replace the terms of any other agreement or document between the Parties relating to the subject matter hereof entered into before the date of this Agreement.