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® Infusion Management Software, or onto its computers or its servers at the Site if Customer is licensing Pump Configuration Editor Software, Configuration Management Application Software, 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 stored in 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, aggregate basis.
4. License Fees. Customer agrees to pay B.Braun the License Fees set forth in the Software License and Services Agreement, payable in U.S. Dollars in the United States.
5. Payment Terms. Payment terms for the License Fees are set forth in the applicable Software 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.
6. Taxes. All amounts due to B.Braun for the Software 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. Customer shall procure, install, and operate a proper computing environment, in accordance with the minimum operating environment requirements set forth in the Software License and Services Agreement, for the Software 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 in the Software Schedules to the Software License and Services 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.
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 for in the Agreement. B.Braun further warrants solely to Customer that the Software, when operated with the equipment configuration and in the operating environment specified in the Software License and Services Agreement, will, during the Term, 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.
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, IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR USE AND/OR A PARTICULAR PURPOSE. IN ADDITION, B.BRAUN DOES NOT REPRESENT THAT THE SOFTWARE WILL BE ERROR FREE OR OPERATE UNINTERRUPTED.
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, 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 CUSTOMER’S USE OF THE SOFTWARE, SHALL NOT EXCEED, UNDER ANY CIRCUMSTANCES, THE AMOUNT OF THE LICENSE FEES PAID BY CUSTOMER FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM THAT GAVE RISE TO THE DAMAGES.
15. Assignment. The License may not 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 or the Software or any other relationship or arrangement between the parties (“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.
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 Software Schedule to the Software License and Services Agreement.
“Site” shall mean Customer’s location at which the Software has been installed.
“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.
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.