END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) BEFORE USING ANY LICENSOR TECHNOLOGY (AS DEFINED BELOW). BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING OR TAPPING A BUTTON INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT OR USING ANY LICENSOR TECHNOLOGY, YOU AGREE TO THIS AGREEMENT WITH LUMIRADX UK LTD. (“LICENSOR”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM "CUSTOMER" WILL REFER TO SUCH ENTITY. IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN INDIVIDUAL, YOU REPRESENT THAT YOU ARE A USER (AS DEFINED BELOW), IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO YOU AS AN INDIVIDUAL. IF YOU DO NOT HAVE SUCH AUTHORITY (IF YOU REPRESENT AN ENTITY), OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE ANY LICENSOR TECHNOLOGY.
For all purposes of this Agreement, the terms defined below, when used with initial capital letters, will have the following meanings:
(a) “Administrators” means employees of Customer that are authorized to use Connect Manager.
(b) “Connect Manager” means LumiraDx’s proprietary web portal, accessed via the Internet, that enables purchasers of an Instrument to authorize and control Administrators and Users and manage Instrument settings.
(c) “Customer Data” means data that Customer inputs into Licensor Technology and/or, if Customer purchases a subscription to Connect Manager and/or EHR Connect, transmits through the Licensor Technology to or from Customer’s EHR system, which may include clinical or other information related to Patients to whom Customer has provided medical services.
(d) “Documentation” means the physical and electronic documentation provided by Licensor in conjunction with the Instrument (including the Software) and/or Connect Manager.
(e) “Instrument” means the diagnostic instrument(s) provided by Licensor to Customer.
(f) “EHR Connect” means functionality that enables purchasers of an Instrument to send Customer Data to and from such Instrument and the applicable purchaser’s electronic health record system.
(g) “Instrument Data” means any data related to the performance, status, or operation of an Instrument or generated thereby, including the result of a test performed using the Instrument, but excluding in each case any and all patient information whether or not de-identified.
(h) “Licensor Technology” means Connect Manager, EHR Connect, the Instrument (including the Software) and Documentation.
(i) “Patients” means individuals accessing medical services or care.
(j) “Software” means the proprietary computer software program(s) as embedded in or installed on the Instrument, and any Updates thereto as delivered to Customer by Licensor under this Agreement, expressly excluding any third party software.
(k) “Updates” mean maintenance releases, bug fixes, technological fixes, feature enhancements or improvements, theme upgrades and other changes made to and entirely new versions of the Software.
(l) “Users” means individuals who
(i) are 18 years of age or older,
(ii) suitably qualified and trained healthcare professionals and
(iii) in the event Customer is an entity, an authorized employee or independent contractor (e.g., clinician) of Customer, or, in the event Customer is an individual, an authorized employee or independent contractor of a purchaser of an Instrument.
2. LICENSE GRANT AND RESTRICTIONS.
Subject to the terms and conditions of this Agreement, Licensor hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable limited right and license to
(a) have Users operate the Instrument and Software in accordance with Documentation solely to provide medical services, including medical diagnostics, or care to Patients and
(b) if Customer purchases from Licensor a subscription to Connect Manager and/or EHR Connect, have Administrators access and use such Licensed Technology in accordance with Documentation solely for internal business purposes in connection with use of the Instruments. Customer will not and will not permit any third party to:
(i) permit any individual other than a User to access or operate the Instrument (including the Software) or an Administrator to access or use Connect Manager and/or EHR Connect (if applicable);
(ii) distribute the Licensor Technology, or any copy thereof, or sublicense or make it available for use by anyone (other than Users and Administrators, if Customer is an entity);
(iii) transfer or sell the Licensor Technology to any third party;
(iv) remove, obliterate, obscure, or conceal the proprietary notices or legends which appear on the Licensor Technology;
(v) alter, modify, adapt or create derivative works from the Licensor Technology;
(vi) decompile, disassemble, translate, or otherwise reverse engineer the Licensor Technology or any part thereof;
(vii) circumvent any technical limitations of the Licensor Technology or access otherwise disabled features or functionalities thereof;
(viii) interfere with the proper working of the Licensor Technology or
(ix) share or publish the results of any benchmarking or performance testing, and/or compatibility analysis of the Licensor Technology without Licensor’s prior written consent.
3. OBLIGATIONS OF CUSTOMER.
Compliance with Laws. Customer will, and if Customer is an entity will cause Users and, if applicable, Administrators to, comply with all laws (including federal, state and local laws and regulations, orders and ordinances) now or hereafter enacted, of any jurisdiction in which performance occurs or may occur hereunder. Without limitation, Customer hereby acknowledges that the rights and obligations of this Agreement are subject to the laws and regulations of the United States relating to the export of products and technical information, and Customer will comply with all such laws and regulations. Customer will not export the Software under any circumstances. Customer will be solely responsible for its violations of any of the foregoing.
Training. The Documentation includes a user manual that provides basic training information for Users and Administrators. Customer will implement appropriate controls to ensure that
(i) only Users operate the Instrument (including the Software) and, if applicable, only Administrators use Connect Manager and/or EHR Connect and
(ii) all Users and, if applicable, Administrators have read and understand the Documentation prior to using the Instrument, Connect Manager and/or EHR Connect. Licensor has no obligation to provide any installation, training, customization, support, maintenance or other services with respect to the Licensor Technology except as may be provided in a separate written agreement signed by a duly authorized officer of Licensor.
4. CUSTOMER DATA AND INSTRUMENT DATA.
License. In the event Customer purchases from Licensor a subscription to Connect Manager and/or EHR Connect, Customer hereby grants to Licensor a non-exclusive, non-sublicensable (except to Licensor’s contractors, consultants and service providers) right and license to
(i) copy, distribute, display, modify and otherwise use the Instrument Data, in connection with the provision to Customer of the Licensor Technology and related support services and other services purchased by Customer,
(ii) internally use the Instrument Data to improve Licensor’s products and services,
(iii) use the Customer Data soley for the provision to Customer of the Licensor Technology and related support services and other services purchased by Customer provided that, to the extent Customer Data includes protected information (“Protected Information”) under HIPAA, GDPR, or applicable foreign law or regulation, Licensor’s use and disclosure of Customer Data will comply therewith and with the terms of a data processing agreement (“Data Processing Agreement”) entered into by the parties. Notwithstanding anything herein to the contrary, the Instrument Data is not Customer Data and is owned by Licensor.
Customer Responsibilities. In the event Customer purchases a subscription to Connect Manager and/or EHR Connect, Customer is solely responsible and liable for the accuracy of the Customer Data and for any acts or omissions of the Administrators. FOR THE AVOIDANCE OF DOUBT, CUSTOMER IS SOLELY RESPONSIBLE FOR ANY LOSS ARISING AS A RESULT OF CUSTOMER’S TRANSFER OF CUSTOMER DATA FROM THE LICENSOR TECHNOLOGY TO CUSTOMER’S EHR SYSTEM.
Licensor Responsibilities. Licensor will follow its archiving procedures for any Customer Data that it process under this Agreement (as set out in Licensor’s back-up policy, a copy of which is available on request). In the event of any accidental or unlawful loss, damage, alteration, unauthorized disclosure or access to Customer Data, Licensor will notify Customer without undue delay on becoming aware of the event. Company’s sole and exclusive remedy will be for Licensor to use reasonable commercial efforts to restore the Customer Data from the latest back-up. To the extent Customer Data affected includes Protected Information, the terms of the Data Processing Agreement breach notification procedures will apply. EXCEPT AS REQUIRED BY LAW, IN NO EVENT WILL LICENSOR BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION OR DISCLOSURE OF CUSTOMER DATA CAUSED BY ANY THIRD PARTY EXCEPT FOR A THIRD PARTY PROCESSOR DIRECTLY ENGAGED BY LICENSOR FOR THE PROCESSING OF CUSTOMER DATA.
TO THE FULLEST EXTENT ALLOWED BY LAW,
(I) LICENSOR DOES NOT MAKE ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER, ANY OF ITS AFFILIATES OR ANY OTHER PARTY WITH RESPECT TO THE LICENSOR TECHNOLOGY OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY; AND
(II) THE LICENSOR TECHNOLOGY IS PROVIDED “AS IS” AND “AS AVAILABLE” INCLUDING WITH ALL FAULTS AND ERRORS AS MAY OCCUR THEREIN. WITHOUT LIMITING THE FOREGOING, ANY WARRANTY, CONDITION, OR REPRESENTATION, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITH RESPECT TO OPERABILITY, USE, ACCURACY, VALIDITY, MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED AND DISCLAIMED. LICENSOR DOES NOT WARRANT THAT THE LICENSOR TECHNOLOGY WILL MEET THE CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR THAT THE LICENSOR TECHNOLOGY WILL OPERATE UNINTERRUPTED OR ERROR-FREE. THE USE OF THE LICENSOR TECHNOLOGY IS AT THE SOLE DISCRETION AND RISK OF THE CUSTOMER AND/OR ITS EMPLOYEES, AGENTS, SUBCONTRACTORS, SUCCESSORS, AND ASSIGNS. LICENSOR DOES NOT MAKE ANY WARRANTIES REGARDING THIRD PARTY SOFTWARE (INCLUDING OPEN SOURCE SOFTWARE) AND CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TERMS OF A THIRD PARTY SOFTWARE LICENSE MAY OVERRIDE SOME OF THE TERMS OF THIS AGREEMENT. Some states may not allow the exclusion or limitation of warranties, so the above limitation or exclusion may not apply to you. This Agreement gives Customer specific legal rights and obligations, and Customer may also have other legal rights or obligations which vary from state to state. CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE LICENSOR TECHNOLOGY AND FOR CONCLUSIONS DRAWN FROM SUCH USE. CUSTOMER ACKNOWLEDGES THAT THE LICENSOR TECHNOLOGY WAS NOT DESIGNED TO CUSTOMER’S REQUIREMENTS AND THAT IT IS CUSTOMER’S RESPONSIBILITY TO ENSURE THAT THE LICENSOR TECHNOLOGY AS DESCRIBED IN THE DOCUMENTATION MEETS ITS REQUIREMENTS. THE LICENSOR TECHNOLOGY IS INTENDED ONLY AS A DIAGNOSTIC AID AND IS NOT A SUBSTITUTE FOR THE EXPERTISE AND JUDGEMENT OF PHYSICIANS OR OTHER HEALTHCARE PROFESSIONALS. ALL INFORMATION IS PROVIDED ON THE BASIS THAT THE HEALTHCARE PROFESSIONALS RESPONSIBLE FOR PATIENT CARE WILL RETAIN FULL AND SOLE RESPONSIBILITY FOR DECIDING ANY CARE OR TREATMENT TO PRESCRIBE OR DISPENSE FOR ALL PATIENTS AND IN PARTICULAR WHETHER THE USE OF INFORMATION PROVIDED BY THE LICENSOR TECHNOLOGY IS SAFE, APPROPRIATE OR EFFECTIVE FOR ANY PARTICULAR PATIENT OR IN ANY PARTICULAR CIRCUMSTANCES.
6. LIMITATION OF LIABILITY.
LICENSOR’S AND ITS THIRD-PARTY VENDORS’ MAXIMUM TOTAL LIABILITY FOR ALL MATTERS ARISING UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE TOTAL FEES PAID TO LICENSOR FOR THE INSTRUMENT GIVING RISE TO THE CLAIM (OR, IN THE EVENT SUCH LIABILITY RELATES TO CONNECT MANAGER, THE TOTAL FEES PAID TO LICENSOR FOR CONNECT MANAGER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM). IN ANY EVENT, NEITHER LICENSOR NOR ANY OF ITS THIRD-PARTY VENDORS WILL UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES IN CONNECTION WITH ANY MATTER ARISING UNDER OR RELATED TO THIS AGREEMENT, EVEN IF LICENSOR WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. Some states may not allow the exclusion or limitation of liability or certain damages, so the above limitation or exclusion may not apply to Customer. This Agreement gives Customer specific legal rights and obligations, and Customer may also have other legal rights or obligations which vary from state to state.
7. RESERVATION OF RIGHTS AND OWNERSHIP.
As between the parties, the Licensor Technology, Instrument Data, and all proprietary and intellectual property rights therein are at all times the property of Licensor, and Customer will have no right, title or interest therein except as expressly provided herein. Any rights not expressly granted in Section 2 above are reserved by Licensor. The Licensor Technology is the proprietary and confidential property of Licensor and its licensors. Customer will keep confidential the Licensor Technology and will not, and if Customer is an entity will cause Users and Administrators not to, use any part of the Licensor Technology in any manner other than as expressly authorized under this Agreement, in accordance with the procedures and guidelines set forth in the Documentation, or otherwise in writing by Licensor. If Customer is an entity, Customer is liable for any of its User’s and Administrator’s breach or non-compliance of this Agreement or the Documentation.
8. TERM AND TERMINATION.
The Instruments and related Documentation are licensed to Customer during the time the Instruments are used by Customer, subject to termination as set forth herein. Connect Manager and related Documentation are made available to Customer during the period for which Customer has paid Licensor to subscribe to Connect Manager. Licensor may terminate this Agreement in whole or in part (including termination of the rights to use any or all Licensor Technology) by written notice to Customer, in the event of the occurrence of any of the following:
(a) if Customer, or if Customer is an entity any of its Users or Administrators, uses, reproduces, distributes or sublicenses, as applicable, any of the Licensor Technology in any manner not authorized herein;
(b) if Customer or any of its Users or Administrators (if applicable) transfers or allows any third party (other than such Users and Administrators) to access or operate any Instrument without Licensor’s prior written consent;
(c) if Customer or any of its Users or Administrators (if applicable) breaches this Agreement (other than as set forth in the foregoing clauses (a) or (b)) and does not cure such breach within 14 days after written demand by Licensor; or (iv) if Customer makes a general assignment for the benefit of creditors, or files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, or if a petition in bankruptcy is filed against Customer and is not dismissed within 30 days after the filing, or if a receiver or trustee is appointed for all or any part of the property or assets of Customer. Upon any termination of this Agreement the license granted under this Agreement will terminate, and Customer will immediately
(i) cease all use of the Licensed Technology,
(ii) destroy all copies of the Documentation and
(iii) if the Licensed Technology will be returned to Licensor, delete or remove all patient data or other personal data from the Software. Upon such termination, all rights and obligations of the parties under this Agreement will cease except that the provisions of Sections 5 through 9 (inclusive) will survive.
Customer may not assign this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of Licensor, which consent may be withheld at the sole discretion of Licensor. Any attempted assignment, delegation or transfer in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns. This Agreement contains the entire understanding of the parties about its subject. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the party making the waiver. Any such waiver will be narrowly construed to apply only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Nothing in this Agreement will be construed to place Licensor and Customer in an agency, employment, franchise, joint venture, or partnership relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. Neither party will represent to the contrary, either expressly, implicitly or otherwise. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the parties as of the effective date hereof. If any provision or part of this Agreement will, to any extent, be or become invalid, illegal or unenforceable, the remainder of this Agreement will continue in effect, and every other provision of this Agreement will remain valid and enforceable to the full extent permitted by applicable law. In such event, the invalid or unenforceable provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the parties as of the effective date hereof. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles, and specifically excluding from application to this Agreement the United Nations Convention on the International Sale of Goods. Any legal proceedings under or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in the Boston, Massachusetts. Each party submits to the personal jurisdiction of, and waives any objection against jurisdiction by, such courts.