Thank you for licensing and/or purchasing, as applicable, B. Braun Medical Inc.’s Software and Services. These are the Terms of Use (“Terms of Use”) for the Software and Services, and are part of the Software License and Services Agreement between the licensee of the Software and/or purchaser of the Services (“Customer”) and B. Braun Medical Inc. (“B.Braun”), located at 824 Twelfth Avenue, Bethlehem, PA 18018. The license of Software and purchase of Services are made subject to these Terms of Use and the Software License and Services Agreement, including the applicable Schedules attached thereto (collectively, and as amended from time to time, the “Agreement”). Definitions of capitalized terms are contained in Section 20.
1. Grant of License. B.Braun grants to Customer, in accordance with the terms hereof, a non-exclusive, non-transferable license, without right of sub-license, to install the current version of the Software onto its servers at the Site if Customer is licensing DoseTrac® Enterprise Infusion Management Software (“DoseTrac Enterprise Software”) or DoseTrac® Infusion Management Software (“DoseTrac Software”), or onto its computers or its servers at the Site if Customer is licensing Drug List Editor Software or Space OnlineSuite Software, and Customer will only permit the Users to use the Software for the Permitted Use (the “License”).
2. No Ownership. Customer acknowledges that (a) the Proprietary Materials are confidential information of B.Braun, (b) all rights and title in and to the Proprietary Materials vest with B.Braun and/or B.Braun’s third party licensors and Customer has no ownership right in the Proprietary Materials, or any portion thereof, and (c) Customer’s right to use the Software is limited to the terms and conditions of the License. Notwithstanding anything to the contrary in the Agreement, B.Braun shall have the right to extract data collected by the Software on a monthly basis during the Term of the Agreement and use such data to perform the Services and/or on a de-identified, aggregated basis.
3. Restrictions on Use. Customer shall not use, copy, or distribute the Software (electronically or otherwise) or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized in these Terms of Use. Customer may make one archival copy of the Software, provided Customer affixes to such copy all copyright, confidentiality and proprietary notices that appear on the original. Customer agrees not to remove any proprietary legend or notice of any Person from any copy of the Software. Neither these Terms of Use nor any other relationship or course of dealing grant Customer any right to access or use any source code of the Software. Customer shall not, nor permit any third party to, decompile, disassemble, reverse engineer, modify or create derivative works of the Software, directly or indirectly, or attempt to do so.
4. Fees. Customer agrees to pay B.Braun all fees set forth in the Agreement and/or accruing hereunder, payable in U.S. Dollars in the United States.
5. Payment Terms. Payment terms for all Fees for the Services and License Fees for the Software are set forth in the applicable Schedule to the Software License and Services Agreement. All unpaid amounts due to B.Braun shall bear interest at the rate of 1.5% per month or the highest rate permitted by Pennsylvania law, whichever is less. Customer's obligation to pay outstanding invoices and all other amounts is absolute and unconditional and is not subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever.
6. Taxes. All amounts due to B.Braun for the Software and/or Services, as applicable, are net of all taxes (including withholding taxes), fees, assessments, charges and levies of any Governmental Authority, all of which are the sole obligation of Customer, except for taxes payable on the income of B.Braun.
7. Required Computer Environment. During the Term, Customer shall procure, install, and operate a proper computing environment for the Software, in accordance with the minimum operating environment requirements set forth in the Agreement, and shall provide proper electrical and other required utilities for such computing environment, including uninterrupted power supplies.
8. Support. During the Term of the Agreement, B.Braun shall provide Customer with telephone support in the form of advice on the use of the Software in the same manner such support is provided to B.Braun’s general client base for the Software. B.Braun has no other responsibilities with respect to Software support and/or maintenance. Except as otherwise expressly set forth herein or in the Schedules to the Agreement, the Agreement does not give Customer any right to any upgrades or new releases to the Software or to any extensions or enhancements to the Software developed by B.Braun in the future. Notwithstanding the foregoing, Customer is responsible for installing any patches, fixes, releases or other improvements to the Software mandated by B.Braun during the Term of the Agreement, and any such patches, fixes, releases or other improvements will be installed by Customer in accordance with the instructions and timelines, if any, provided by B.Braun.
9. Limited Warranty. B.Braun represents and warrants solely to Customer that B.Braun has the right to grant Customer a license to use the Software as provided in the Agreement. Subject to Customer’s installation of any patches, fixes, releases or other improvements to the Software as required by and in accordance with Section 8 above, B.Braun further warrants solely to Customer that the Software, when operated with the equipment configuration and in the operating environment specified in the Agreement, will, during the Warranty Period (as defined below), materially conform to the user documentation provided by B.Braun to Customer. In addition, B.Braun warrants solely to Customer that the digital media upon which the Software is provided to Customer by B.Braun will be free from defects for a period of ninety (90) days from the date of delivery of the Software. Any defective digital media will be replaced at no additional charge during such ninety (90) day period. If Customer notifies B.Braun that any such digital media is defective after the ninety (90) warranty period, B.Braun reserves the right to charge Customer a restocking or reissue fee. B.Braun further represents and warrants that any Services provided will be performed in a good and workmanlike manner.
10. Indemnification. B.Braun agrees to indemnify, defend and hold harmless Customer from and against any costs and damages awarded against Customer by a court of competent jurisdiction pursuant to a final judgment in favor of the owner of any valid U.S. patent, copyright, or trade secret, as a result of any claim of infringement by a third party of any such patent or copyright or misappropriation of any trade secret related to the Software (each a “Misappropriation Claim”); provided that (1) Customer promptly notifies B.Braun in writing of such Misappropriation Claim, (2) B.Braun has sole control of the defense of and all settlement negotiations relating to such Misappropriation Claim, (3) Customer cooperates fully in the defense of such Misappropriation Claim, and (4) Customer has paid all accrued fees owed to B.Braun for the Software. Customer shall indemnify, defend and hold B.Braun harmless from any claims and/or liabilities arising out of or related to personal injury and/or tangible property damage arising from or related to Customer’s use of the Software.
11. LIMITATIONS ON WARRANTIES AND INDEMNIFICATION.
(a) NEITHER THE LIMITED WARRANTY SET FORTH IN SECTION 9 NOR THE INDEMNIFICATION SET FORTH IN SECTION 10 SHALL APPLY TO, AND B.BRAUN SHALL NOT HAVE ANY LIABILITY TO CUSTOMER WITH REGARD TO, ANY CLAIM WHICH IS BASED IN WHOLE OR IN PART ON (1) THE USE OF THE SOFTWARE IN COMBINATION WITH ANY EQUIPMENT, SOFTWARE OR DATA NOT APPROVED FOR USE IN WRITING BY B.BRAUN; (2) ANY MODIFICATION OR SUPPLEMENT TO THE SOFTWARE MADE BY CUSTOMER OR ANY OTHER PERSON WITHOUT B.BRAUN’S PRIOR WRITTEN CONSENT; (3) THE MISUSE OF THE SOFTWARE; OR (4) DAMAGE CAUSED BY FIRE, CASUALTY OR OTHER EXTERNAL CAUSES.
(b) WITHIN A REASONABLE TIME FOLLOWING NOTICE OF ANY ALLEGED MISAPPROPRIATION CLAIM, B.BRAUN SHALL HAVE THE RIGHT, IN LIEU OF INDEMNIFICATION AS SPECIFIED IN SECTION 10, TO (1) OBTAIN FOR CUSTOMER THE RIGHT TO CONTINUE USING THE SOFTWARE IN ACCORDANCE WITH THE TERMS OF THE LICENSE, (2) MODIFY THE SOFTWARE TO MAKE THE SOFTWARE NON-INFRINGING, (3) REPLACE THE SOFTWARE WITH SOFTWARE WHICH IS FUNCTIONALLY EQUIVALENT TO THE SOFTWARE OR (4) IF THE RIGHT TO CONTINUE TO USE THE SOFTWARE CANNOT BE PROCURED OR THE SOFTWARE CANNOT BE MODIFIED OR REPLACED, B.BRAUN MAY TERMINATE CUSTOMER’S RIGHT TO USE THE SOFTWARE, HAVE CUSTOMER REMOVE OR DESTROY SUCH SOFTWARE, AND PROVIDE CUSTOMER WITH A PRO-RATED REFUND OF THE LICENSE FEES PAID BY CUSTOMER (SUCH REFUND WILL BE CALCULATED AND BASED UPON A THREE (3) YEAR STRAIGHT-LINE AMORTIZATION OF THE PREVIOUSLY PAID LICENSE FEES).
(c) IN THE EVENT OF A BREACH OF ANY OF THE LIMITED WARRANTY SPECIFIED IN SECTION 9 DURING THE PRODUCT WARRANTY PERIOD, B.BRAUN SHALL, AT ITS OPTION, AND AS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY HEREUNDER, MAKE REASONABLE EFFORTS TO CORRECT SUCH NON-CONFORMITY. THIS REMEDY IS IN LIEU OF ANY OTHER REMEDY AVAILABLE HEREUNDER OR AT LAW OR EQUITY.
(d) THE LIMITED WARRANTY SET FORTH IN SECTION 9 IS IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES AND B.BRAUN HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR USE AND/OR A PARTICULAR PURPOSE. IN ADDITION, B.BRAUN DOES NOT REPRESENT THAT (I) THE SOFTWARE WILL BE ERROR FREE OR OPERATE UNINTERRUPTED; (II) ANY INFUSION DOCUMENTATION THAT IS TRANSMITTED BETWEEN WIRELESS EQUIPMENT AND AN ELECTRONIC MEDICAL RECORD SYSTEM WILL BE ERROR FREE, IF APPLICABLE; OR (III) ANY WIRELESS EQUIPMENT WILL REMAIN INTEGRATED TO AN ELECTRONIC MEDICAL RECORD SYSTEM CONTINUOUSLY AND/OR WITHOUT INTERRUPTION, IF APPLICABLE.
12. LIMITATIONS ON LIABILITY.
(a) IN NO EVENT SHALL B.BRAUN BE LIABLE UNDER ANY CIRCUMSTANCES FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER (WHETHER ARISING OUT OF CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE) ARISING OUT OF THE AGREEMENT, THE SERVICES, THE SOFTWARE AND/OR USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY LOST REVENUES OR PROFITS OF CUSTOMER, WHETHER OR NOT B.BRAUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE.
(b) NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, THE PARTIES AGREE THAT B.BRAUN’S AGGREGATE LIABILITY FOR DAMAGES UNDER THE AGREEMENT, INCLUDING DAMAGES ARISING FROM THE SERVICES AND/OR CUSTOMER’S USE OF THE SOFTWARE, SHALL NOT EXCEED, UNDER ANY CIRCUMSTANCES, THE AMOUNT OF THE FEES OR LICENSE FEES, AS APPLICABLE, PAID BY CUSTOMER FOR THE SERVICES OR SOFTWARE THAT GAVE RISE TO THE CLAIM.
13. Term; Termination. Each License granted for the Software and/or Services purchased hereunder shall remain in effect for the Term set forth in the Software License and Services Agreement unless otherwise terminated as provided in this Section 13. B.Braun may terminate the License and/or a Schedule if Customer breaches any term of the Agreement and does not cure such breach within thirty (30) days (10 days in the case of nonpayment) of receipt of written notice of such breach, or immediately on written notice in the case of breach of any of the provisions of Sections 1-3 of these Terms of Use. Customer may terminate its License at any time provided that such termination shall not relieve Customer from responsibility to make any payments due to B.Braun. Any and all fees paid to B.Braun shall be nonrefundable.
14. Effect of Termination. Upon any termination, all of Customer’s rights (except as expressly and unambiguously provided in this Section 14) under the Agreement and any License(s) shall terminate, and Customer shall immediately discontinue use of the Software and return or destroy all copies of the Software and all portions thereof and Proprietary Materials or portions thereof in Customer’s possession, custody or control in whichever form held (including all copies or embodiments thereof, whether or not modified or incorporated with or into other software) and so certify to B.Braun. Termination is not B.Braun’s sole remedy under the Agreement and, whether or not termination is effected, all other remedies will remain available. Sections 2, 3, 11, 12, and 14-20 of these Terms of Use shall survive termination of the License and the Agreement.
15. Assignment. Neither the Agreement nor the License may be assigned (by operation of law or otherwise) or transferred, in whole or in part, by Customer without the prior written consent of B.Braun.
16. Governing Law; Dispute Resolution. The Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflict of law principles or the United Nations Convention on the International Sale of Goods. Any dispute, controversy or claim arising from or related to the Agreement, the Software, the Services, or any other relationship or arrangement between the parties (each, an “Action”) shall be tried by a court and not a jury. Customer hereby unconditionally waives its rights to a jury trial in any such Action.
17. Remedies. Customer acknowledges that money damages would be both incalculable and an insufficient remedy for any breach by Customer of Sections 1-3 of these Terms of Use and that any such breach would cause B.Braun irreparable harm. Accordingly, Customer also agrees that in such event, B.Braun, in addition to any other remedies it may have at law or in equity, is entitled, without the requirement of posting any security, to equitable relief, including injunctive relief and specific performance.
18. Severability. If any provision of the Agreement is declared invalid or illegal for any reason, then the remaining provisions of the Agreement shall remain in full force and effect in the same manner as if the invalid or illegal provision had not been contained herein.
19. Export Laws. Customer shall not directly or indirectly transfer the Software to any destination subject to export restrictions under United States law, unless such export is permitted under all applicable laws, rules and regulations of any Governmental Authority.
20. Definitions. The following capitalized terms shall have the respective meanings given them below:
“Governmental Authority” shall mean any Federal, state, local or foreign governmental authority, agency, court, regulatory commission or other governmental body.
“Person” shall mean any individual, firm, corporation, unincorporated association, partnership, limited liability company, trust, Governmental Authority or other entity.
“Proprietary Materials” shall mean the Software and all documentation for the Software, all copies thereof, all updates, upgrades, releases, modifications and enhancements thereto (including all copyrights and all other intellectual property rights pertaining thereto).
“Permitted Use” shall mean the purpose set forth in the Software License and Services Agreement.
“Services” shall mean the services set forth in the applicable Schedule to the Software License and Services Agreement.
“Site” shall mean Customer’s location(s) at which the Software has been installed, as set forth in the applicable Schedule.
“Software” shall mean the Software licensed by Customer from B.Braun as indicated in the Software License and Services Agreement, as further described in the user documentation provided by B.Braun to Customer.
“Software License and Services Agreement” shall mean the Software License and Services Agreement entered into between B.Braun and Customer for the Software.
“User” shall mean each employee of Customer at the Site who Customer has authorized to use the Software in accordance with the terms hereof.
“Warranty Period” shall mean (a) with respect to the DoseTrac Software, Space OnlineSuite Software and/or Drug List Editor Software, the Term of the Agreement, and (b) with respect to the DoseTrac Enterprise Software, a period of five (5) years from the date of implementation of the DoseTrac Enterprise Software at the first Site.
21. Rules of Construction. All defined terms contained herein apply equally to both the singular and plural forms of such terms. Whenever the context may require, any pronoun shall have the corresponding masculine, feminine and neuter forms. Headings of Sections have been inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of the Agreement.
Revised October 12, 2023