1. GRANT OF LICENSE
Subject to the payment of the applicable license fees and all the terms and conditions of this End User License Agreement (“EULA”), Response Ortho Teknolojik Üretim A.Ş. (“Response Ortho”), grants to you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to use, in binary executable form, the Response Ortho product (“Smart Correction”) that accompanies this EULA. If Smart Correction and all associated applications are licensed as a suite or bundled with more than one specified Smart Correction, this license applies to all such specified Products, subject to any restrictions or usage terms specified on the applicable Purchase Order that apply to any of such Products individually. Notwithstanding the foregoing, to the extent Software Templates (or “Libraries”) are included with the Products and subject to the payment of the applicable license fees and all the terms and conditions of this EULA, specifically but not limited to Section 8, Response Ortho grants to you a limited, term-based, non-exclusive, revocable, non- transferable, non-sublicensable subscription license to install and use the Libraries.
2. PRECAUTIONS AND PERMITTED USES
Smart Correction and all associated applications may be used only for the intended uses specified in the user manual of Smart Correction. Smart Correction and all associated applications may be used only by trained personnel, who are qualified, licensed and experienced in conducting the relevant medical procedures. Smart Correction and all associated applications may be used only after thorough review of, and strictly in accordance with, the user manual. All results provided by the Smart Correction and all associated applications must be clinically verified and checked before patient treatment. Smart Correction and all associated applications are evaluation tools, intended to provide aid and support to trained personnel, and should not be used as a decision-making tool.
3. LIFE SUPPORT PROCEDURES AND HIGH RISK ACTIVITIES
You acknowledge that the Smart Correction and all associated applications are not fault tolerant and should not be used in direct life support procedures or other activities requiring fail-safe performance in which the failure Smart Correction could lead directly to death, and you agree not to use or allow the use of the Smart Correction and all associated applications for, or in connection with, any such procedure or activity.
4. OWNERSHIP; COPYRIGHT PROTECTION
Smart Correction and all associated applications are not for sale or rent. As between the parties, all titles, ownership rights, and intellectual property rights (including all copyrights, patents, trade secret rights and trademarks) in and to Smart Correction and any copies or portions thereof, shall remain in Response Ortho, its affiliates, or their respective suppliers and licensors. Your possession or use of Smart Correction and all associated applications does not transfer to you any title to the intellectual property in Smart Correction and all associated applications, and you will not acquire any rights to Smart Correction except as expressly set forth in this EULA. Smart Correction and all associated applications are protected by copyright laws and all other applicable laws. Therefore, you must treat the Smart Correction like any other copyrighted material (e.g., a book or musical recording). You may not distribute to any third party any activation mechanism or key supplied by, or on behalf of, Response Ortho, its suppliers, resellers or distributors, in order to activate the copy of Smart Correction that you have licensed. You may not copy the Smart Correction manual(s), on-line documentation, Libraries, or any written materials accompanying Smart Correction and all associated applications. All title and intellectual property rights in and to the content which may be accessed through use of the Smart Correction and all associated applications, including the Libraries, are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content, except the right to download and use the Libraries in strict compliance with the license granted hereunder.
Except as expressly and unambiguously permitted by this EULA, you may not, nor permit anyone else to, directly or indirectly: (a) rent, lease, sublicense, or use Smart Correction and all associated applications for timesharing or service bureau purposes, or otherwise use Smart Correction for any commercial purpose or on behalf of any third party; (b) transfer, assign, or pledge your rights under this EULA, without obtaining the prior written consent of Response Ortho; (c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or structure, sequence and organization of Smart Correction and all associated applications (except where the foregoing is required by applicable local law, and then only to the extent so permitted); (d) integrate, incorporate or bundle Smart Correction and all associated applications into any other software or include Smart Correction and all associated applications in other software or hardware without receiving the prior written consent of Response Ortho; (e) disclose the results of any benchmark test Smart Correction and all associated applications to any third party without the prior written approval of Response Ortho; (f) publish reviews of Smart Correction and all associated applications without the prior consent of Response Ortho. You acknowledge that the source code form of Smart Correction remains a confidential trade secret of Response Ortho and/or its affiliates or suppliers. You must maintain all copyright and other any other proprietary notices on Smart Correction and must reproduce such notices exactly on all permitted copies of Smart Correction.
6. TERM AND TERMINATION
This EULA shall continue until terminated as set forth in this section. You may terminate this EULA at any time by cancelling the user registration of Smart Correction and all associated applications and Smart Correction documentation. Response Ortho may terminate this EULA immediately if you violate any provision of this EULA. Any termination of this EULA shall also terminate the licenses granted hereunder. Upon termination of this EULA for any reason, you agree Response Ortho to destroy all of your records on Smart Correction and all associated applications.
You agree to prepare and submit to Response Ortho full and accurate reports, immediately upon becoming aware of any adverse effect occurring during procedures in which results of Smart Correction and all associated applications were used or during any other use of the Smart Correction.
You agree that Response Ortho shall have no liability whatsoever for any use you or any third party makes of Smart Correction and all associated applications. You hereby agree to defend, indemnify, and hold harmless Response Ortho from any and all damages, liability, costs, and expenses (including attorney’s fees) arising from claims related to your use, and your personnel’s use, of the Smart Correction and all associated applications.
9. LIMITED WARRANTY AND WARRANTY DISCLAIMERS
The warranty contained in this Section is Response Ortho’s sole obligation and your exclusive remedy for any failure of Smart Correction and all associated applications to perform as warranted. Response Ortho does not warrant that the Smart Correction and all associated applications are error free. This limited warranty is void if failure of Smart Correction has resulted from accident, abuse, or misapplication. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, SMART CORRECTION AN ALL ASSOCIATED APPLICATIONS ARE PROVIDED “AS IS”. RESPONSE ORTHO DOES NOT WARRANT THAT THE CLICK2CORRECT IS ERROR-FREE. ADDITIONALLY, RESPONSE ORTHO DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. RESPONSE ORTHO RESERVES THE RIGHT TO ALTER THE CONTENT OR STRUCTURE OF SMART CORRECTION, LIBRARIES AND SERVICES IN USE ON THE DATE HEREOF OR THEREAFTER. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
10. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL RESPONSE ORTHO OR ITS AFFILIATES, SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, ACCURACY OF RESULTS, COMPUTER FAILURE, OR MALFUNCTION), OR DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE CLICK2CORRECT AND ALL ASSOCIATED APPLICATIONS, EVEN IF RESPONSE ORTHO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF RESPONSE ORTHO SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. THESE LIMITATIONS REPRESENT A VOLUNTARY AND MUTUALLY AGREED ALLOCATION OF RISK AND RESPONSIBILITY IN A REASONABLE MANNER HAVING DUE REGARD TO THE RATES AND PRICES CHARGED BY RESPONSE ORTHO.
This EULA represents the complete agreement concerning the license between you and Response Ortho and supersedes all prior agreements and representations between you and Response Ortho. It may be amended only by a writing executed by you and Response Ortho. If any provision of the EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Response Ortho to act with respect to a breach of this EULA by you or others does not constitute a waiver and shall not limit the rights of Response Ortho with respect to such breach or any subsequent breaches. This EULA is personal to you and may not be assigned or transferred for any reason whatsoever without the consent of Response Ortho and any action or conduct in violation of the foregoing shall be void and without effect. Response Ortho expressly reserves the right to assign this EULA and to delegate any of its obligations hereunder. This EULA is governed by and construed under the laws of United States. Should you have any questions concerning this EULA, or if you desire to contact Response Ortho for any reason, please contact your distributor or contact Response Ortho, as appropriate, directly at: firstname.lastname@example.org, or by calling +90 216 314 1104.
Response Ortho Teknolojik Üretim A.Ş., ITOSB, 10. Cadde, No:1 Tuzla, 34959, Istanbul, TURKIYE