General Terms -  Australia specific terms at the bottom.

ENDUSER SOFTWARE LICENSE AND SUBSCRIPTION AGREEMENT

 

IMPORTANT: This License and Subscription Agreement ("Agreement") is a legal agreement between you (either an individual or a legal entity) ("Licensee", "you", "your", as context requires) and Merge Technologies Incorporated, a Wisconsin corporation having its principal place of business at 900 Walnut Ridge Drive Hartland, Wisconsin 53029 and, where applicable, its suppliers and licensors (collectively "Merge Healthcare") for the software indicated below ("Software") and associated documentation ("Documentation"). BY INSTALLING, COPYING, DOWNLOADING, ACCESSING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AS THEY GOVERN YOUR USE OF THE SOFTWARE. If you do not agree to the terms and conditions of this Agreement, please do NOT install the Software and immediately destroy any copies of the Software and Documentation in your possession.

 

---------------------------------------
SUBSCRIPTION INFORMATION

Product: eFilm Workstation ™

Fee and Payment Terms: See separate subscription and fee form incorporated by reference into this Agreement (“License Fees”)

Term:    
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1. GRANT OF LICENSE

Merge Healthcare hereby grants to you a personal, limited, non-exclusive, non-sub-licensable, nontransferable, non-assignable license to use the Software, in machine executable object code form, and any related Documentation as follows: 

Evaluation Version
At no cost, you may install and use one copy of the Software on a single computer within your organization for evaluation and testing purposes during the evaluation period.  The Software will only be delivered electronically.  No tangible media, including updates, upgrades and fixes, will be delivered with respect to the Software and any associated software subscription and support (software maintenance).  The evaluation Software should not be used for commercial purposes. After the evaluation period, if you do not order the registered version of the Software (which may involve a separate payment), you must remove/destroy the Software and Documentation.  


Registered Version


If this Registered Version of the Software was accompanied with a purchase confirmation sent to you ("Purchase Confirmation"):
In exchange for the payment of required fees, which may be on a one-time, annual or other periodic basis as set forth in the Purchase Confirmation, you may: (i) install and use one copy of the Software on a single computer within your organization; and (ii) make one copy of the Software and Documentation for back-up and archival purposes only, provided any copy must contain all of the original Software and Documentation's proprietary notices. If you wish to use additional copies of the Software, you must obtain additional licenses from Merge Healthcare for each computer on which the Software is installed. The license for the registered version of the Software will be for the period set forth in the Purchase Confirmation. If so provided in the Purchase Confirmation, the fees will include service and support for the period set forth therein.

If instead this Registered Version of the Software was provided as part of a system that included the Software such as (but not limited to) Fusion RIS, Fusion PACS, Fusion RIS/PACS ("System") then your right to use and make copies of the Software will be limited to the conditions of the sale of the System.

If you have purchased a site license ("Site License"), in exchange for the payment of required fees, which may be on a one-time, annual or other periodic basis you may: (i) install copies of the Software on an unlimited number of computers within your organization; and (ii) use the Software on a number of computers simultaneously, provided that the number does not exceed the value provided for by the Site License.

Academic Users of Registered Version

If approved by Merge Healthcare, medical students, medical school professors or similar persons (collectively “Academic Users”) determined by Merge Healthcare to qualify to use the Software and Documentation solely for academic teaching, learning, or research purposes, may receive a license for the Registered Version at a reduced cost. Merge Healthcare may terminate such license at any time if it determines in its sole discretion that the Academic User no longer qualifies for such a reduced fee license or if the Academic User violates any other provision of this Agreement.  

 

Disabling Mechanism Applicable to All Users

 

Your license allows you to use the Software only for a specific duration and, in the case of the registered version, only when required fees are paid. THE SOFTWARE MAY CONTAIN A DISABLING MECHANISM THAT WILL PREVENT IT FROM BEING USED AFTER THE LICENSE OR SUBSCRIPTION PERIOD EXPIRES. YOU MUST NOT TAMPER WITH THE DISABLING MECHANISM OR THE SOFTWARE.

 

2. FEES AND TAXES. 

You agree to pay all fees set forth in Purchase Confirmation applicable to the Software and update(s) selected by you. All fees are payable in advance. Merge Healthcare reserves the right to increase its fees in the next applicable billing period, notice of which may be electronic; provided, however, in the event of any  increase you shall have the option to terminate this Agreement in accordance with the provisions of paragraph 8. Payment of fees shall be made to Merge Healthcare at 900 Walnut Ridge Drive Hartland, Wisconsin 53029, or to the appointed Merge Healthcare Distributor from whom you originally purchased your subscription.

 

3. LICENSE RESTRICTIONS

 

a) All rights not expressly granted are reserved.
b) You may not: (i) permit other individuals or entities to use or have access to the Software except under the terms of this Agreement; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, lend, assign, or otherwise transfer rights to the Software or Documentation; or (v) remove any proprietary notices or labels on the Software or Documentation. Any such forbidden use shall immediately terminate your license to the Software and Documentation.
c) You agree that you shall only use the Software and Documentation in a manner that complies with all applicable laws, regulations and the like in the jurisdictions in which you use the Software and Documentation, including, but not limited to, applicable restrictions concerning medical uses and copyright and other intellectual property rights.
d) The Software or the use of the Software may be subject to legal or regulatory provisions related to products used in the Health Care Industry. Prior to using the Software, it is your responsibility to ensure that your use of the Software will not violate any legal or regulatory provisions. Please contact Merge Healthcare to determine the most recent information regarding legal and regulatory approvals.
e) The use of the Software is intended only for use with properly authorized content. Content files, including, but not limited to images, which are viewed using the Software, may be protected by copyright laws or other laws of any jurisdiction and are used at your own risk.
f) You may only use the Software for your internal purposes. You may not use the Software in any way to provide, or as part of, any application service provider ("ASP") service or other similar commercial service or application in which third parties have access to the Software.
g) You shall pay all applicable sales, use, transfer and any other taxes (exclusive of Merge Healthcare income taxes), however designated, which are collected or levied against Merge Healthcare on account of this Agreement.
h) If you are an Academic User you agree to use the Software solely for teaching, learning, or research purposes and not for rendering of services which are compensated or reimbursed.

 

4. UPDATES/ UPGRADES

 

Merge Healthcare reserves the right at any time to, but is not obligated to provide Updates to the Software. “Update” shall mean a change to the Software and/or Products designed to correct defects, but does not materially change functionality. If any such Updates are provided to you by Merge Healthcare, such Updates will be considered a part of the Software and subject to the terms and conditions of this Agreement. You agree and understand that although Merge Healthcare takes steps to prevent errors, the Software may contain errors affecting proper operation. The license provided herein does not include Upgrades. “Upgrade” shall mean a change to the Software that adds functionality or otherwise implements substantial additional capability. You agree that you may not have access to such Upgrades without separate payment or through a separate support agreement.

5. TITLE

 

Title, ownership rights, and intellectual property rights in and to the Software and Documentation shall remain in Merge Healthcare. The Software is protected by the copyright laws of Canada, the United States and by international copyright treaties. Title, ownership rights and intellectual property rights in and to any content used with the Software shall be retained by the applicable content owner and may be protected by applicable copyright or other law. Merge Healthcare also retains all right, title, and interest in and to the trademarks, trade names, logos, and icons (collectively "Marks") used in or identifying the Software or its features and you may not use such Marks without the prior written permission of eFilm Medical Inc. or Merge Technologies Incorporated, as applicable. Without limiting the forgoing: (i) eFilm(tm), eFilm Lite(tm), eFilm Workstation(tm), Fusion eFilm (tm), eFilm Advanced Visualization (tm), eFilm Scan(tm), eFilm Video(tm) and the "Gear" logo are trademarks of eFilm Medical Inc. (ii) the Digital Holography logo, VoxgramR, VoxboxR, and HoloradR are registered trademarks of Holorad LLC and Simgram(tm) and the Holorad logo are trademarks of Holorad LLC. (iii) Merge(tm), DICOM by Merge and Merge Healthcare ™ are trademarks of Merge Technologies Inc. (iv) other trademarks are either registered trademarks or trademarks of their respective owners. Holographic rendering is licensed by eFilm Medical Inc. under U.S. Patents 6,123,733, 6,748,347, foreign patents and patents pending.

 

6. LIMITED WARRANTY AND LIMITATION OF LIABILITIES

 

Merge Healthcare warrants that the Software will perform in accordance with the Documentation for a period of: (a) thirty (30) days for

evaluation version and (b) ninety (90) days for registered version from the date of receipt. Subject to section 3 above, Merge Healthcare will make commercially reasonable efforts to correct any failure to perform in accordance with the Documentation. DISCLAIMER OF WARRANTY & LIMIT OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ABOVE LIMITED WARRANTY IS GIVEN IN LIEU OF AND MERGE HEALTHCARE FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL MERGE HEALTHCARE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, SERVICE INTERRUPTION, LOSS OF INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF MERGE HEALTHCARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MERGE HEALTHCARE'S TOTAL LIABLITY FOR ANY DIRECT DAMAGES SHALL NOT EXCEED THE AMOUNT PAID FOR THE SOFTWARE OR FIVE DOLLARS ($5.00), WHICHEVER IS HIGHER. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION(S) MAY NOT APPLY TO YOU.

 

7. INDEMNIFICATION

 

The Software is not intended to replace the skill and judgment of a qualified medical practitioner and should only be used by people that have been appropriately trained in the Software's functions, capabilities and limitations. For example, and without limitation, various functions of the Software, including Maximum/Minimum Intensity Projection (MIP), Multi-Planar Reconstruction (MPR), Simgram images, and corresponding Voxgram images, are intended for use only as an adjunct to two-dimensional medical image display techniques. You agree to hold harmless, indemnify and defend Merge Healthcare, its suppliers, officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys' fees and costs) arising out of or relating to your use of the Software. THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH YOU.

 

8. TERMINATION

This Agreement will automatically terminate at the end of the license or subscription period or if you fail to comply with any term hereof including failure to make any required payment when due. No notice shall be required from Merge Healthcare to effect such termination. You may also terminate this Agreement at any time by notifying Merge Healthcare in writing of termination. Without prejudice to any other rights, upon any termination of this Agreement, you shall immediately discontinue use of the Software and Documentation and shall within three (3) days return to Merge Healthcare, or certify destruction of, all full or partial copies of the Software, Documentation and related materials.

 

9. EXPORT RESTRICTION

The Software and Documentation or parts thereof, may be subject to the limitations on transfer imposed by the United States' Export Administration Act of 1979 as amended. You agree that you will not, and will not assist or permit others under your control and direction to, export the software or documentation or any part thereof, in contravention of these laws or the related rules and regulations.

 

10. MISCELLANEOUS

This Agreement shall constitute the complete and exclusive agreement between the Parties, notwithstanding any variance with any other written instrument submitted by you, whether formally rejected by Merge Healthcare or not. The terms and conditions contained in this Agreement may not be modified except in a writing duly signed by you and an authorized representative of Merge Healthcare. This Agreement is personal to you, and may not be assigned without Merge Healthcare's express written consent. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. The parties specifically acknowledge and agree that this Agreement be drafted and fully enforceable as written in the English language. This Agreement shall be governed by the laws of the State of Wisconsin, United States of America, without regard to conflicts of law provisions, and you hereby consent to the exclusive jurisdiction of the courts sitting in Milwaukee County, Wisconsin, United States of America. Your remedies in this Agreement are exclusive. Any claim brought by you must be brought within one year of the date the cause of action has accrued or be forever waived. To the extent that you have breached or have indicated your intention to breach this Agreement in any manner which violates or may violate Merge Healthcare's intellectual property rights, or may cause continuing or irreparable harm to Merge Healthcare (including, but not limited to, any breach that may impact Merge Healthcare's intellectual property rights, or a breach by reverse engineering), Merge Healthcare may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.

++++  Australia Specific Terms ++++


eFILM Workstation Software - ENDUSER SOFTWARE LICENSE AND SUBSCRIPTION AGREEMENT

IMPORTANT: This License and Subscription Agreement ("Agreement") is a legal agreement between you (either an individual or a legal entity) ("Licensee", "you", "your", as context requires) and Merge Healthcare Solutions Inc., a Delaware corporation and an IBM company, having offices at 71 South Wacker Drive, 20th Floor, Chicago, Illinois 60606, USA and, where applicable, its suppliers and licensors (collectively “Merge Healthcare”) for the software indicated below ("Software" or “Product”) and associated documentation ("Documentation"). BY INSTALLING, COPYING, DOWNLOADING, ACCESSING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AS THEY GOVERN YOUR USE OF THE SOFTWARE. If you do not agree to the terms and conditions of this Agreement, please do NOT install the Software and immediately destroy any copies of the Software and Documentation in your possession.

 

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SUBSCRIPTION INFORMATION

Product: eFilm Workstation ™

Term: [See Sales Order]    
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1. GRANT OF LICENSE

 

Merge Healthcare hereby grants to you a personal, limited, non-exclusive, non-sub-licensable, nontransferable, non-assignable license to use the Software, in machine executable object code form, and any related Documentation as follows: 

 

Evaluation Version

 

At no cost, you may install and use one copy of the Software on a single computer within your organization for evaluation and testing purposes during the evaluation period. The evaluation Software should not be used for commercial purposes. After the evaluation period, if you do not order the registered version of the Software (which may involve a separate payment), you must remove/destroy the Software and Documentation.
 
Registered Version

Subject to the terms of the Sales Order, you may: (i) install and use one copy of the Software on a single computer within your organization; and (ii) make one copy of the Software and Documentation for back-up and archival purposes only, provided any copy must contain all of the original Software and Documentation's proprietary notices. If you wish to use additional copies of the Software, you must obtain additional licenses for each computer on which the Software is installed. The license for the registered version of the Software will be for the period set forth in the Sales Order. If so provided in the Sales Order, the fees will include service and support for the period set forth therein.
If instead this Registered Version of the Software was provided as part of a system that included the Software such as (but not limited to) Fusion RIS, Fusion PACS, Fusion RIS/PACS ("System") then your right to use and make copies of the Software will be limited to the conditions of the sale of the System.

 

If you have purchased a site license ("Site License"), you may: (i) install copies of the Software on an unlimited number of computers within your organization; and (ii) use the Software on a number of computers simultaneously, provided that the number does not exceed the value provided for by the Site License.

 

Academic Users of Registered Version

 

If approved by Merge Healthcare, medical students, medical school professors or similar persons (collectively “Academic Users”) determined by Merge Healthcare to qualify to use the Software and Documentation solely for academic teaching, learning, or research purposes, may receive a license for the Registered Version at a reduced cost. Merge Healthcare may terminate such license at any time if it determines in its sole discretion that the Academic User no longer qualifies for such a reduced fee license or if the Academic User violates any other provision of this Agreement.  

 

Disabling Mechanism Applicable to All Users

 

Your license allows you to use the Software only for a specific duration and, in the case of the registered version, only when required fees are paid. THE SOFTWARE MAY CONTAIN A DISABLING MECHANISM THAT WILL PREVENT IT FROM BEING USED AFTER THE LICENSE OR SUBSCRIPTION PERIOD EXPIRES. YOU MUST NOT TAMPER WITH THE DISABLING MECHANISM OR THE SOFTWARE.

 

2. LICENSE RESTRICTIONS

 

a) All rights not expressly granted are reserved.
b) You may not: (i) permit other individuals or entities to use or have access to the Software except under the terms of this Agreement; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, lend, assign, or otherwise transfer rights to the Software or Documentation; or (v) remove any proprietary notices or labels on the Software or Documentation. Any such forbidden use shall immediately terminate your license to the Software and Documentation.
c) You agree that you shall only use the Software and Documentation in a manner that complies with all applicable laws, regulations and the like in the jurisdictions in which you use the Software and Documentation, including, but not limited to, applicable restrictions concerning medical uses and copyright and other intellectual property rights.
d) The Software or the use of the Software may be subject to legal or regulatory provisions related to products used in the Health Care Industry. Prior to using the Software, it is your responsibility to ensure that your use of the Software will not violate any legal or regulatory provisions. Please contact Merge Healthcare or the Sponsor to determine the most recent information regarding legal and regulatory approvals.
e) The use of the Software is intended only for use with properly authorized content. Content files, including, but not limited to images, which are viewed using the Software, may be protected by copyright laws or other laws of any jurisdiction and are used at your own risk.
f) You may only use the Software for your internal purposes. You may not use the Software in any way to provide, or as part of, any application service provider ("ASP") service or other similar commercial service or application in which third parties have access to the Software.
g) If you are an Academic User you agree to use the Software solely for teaching, learning, or research purposes and not for rendering of services which are compensated or reimbursed.

 

3. UPDATES/ UPGRADES

 

Merge Healthcare reserves the right at any time to, but is not obligated to provide Updates to the Software. “Update” shall mean a change to the Software and/or Products designed to correct defects, but does not materially change functionality. If any such Updates are provided to you by Merge Healthcare, such Updates will be considered a part of the Software and subject to the terms and conditions of this Agreement. You agree and understand that although Merge Healthcare takes steps to prevent errors, the Software may contain errors affecting proper operation. The license provided herein does not include Upgrades. “Upgrade” shall mean a change to the Software that adds functionality or otherwise implements substantial additional capability. You agree that you may not have access to such Upgrades without separate payment or through a separate support agreement.

 

4. TITLE

 

Title, ownership rights, and intellectual property rights in and to the Software and Documentation shall remain in Merge Healthcare. The Software is protected by the copyright laws of Canada, the United States and by international copyright treaties. Title, ownership rights and intellectual property rights in and to any content used with the Software shall be retained by the applicable content owner and may be protected by applicable copyright or other law. Merge Healthcare also retains all right, title, and interest in and to the trademarks, trade names, logos, and icons (collectively "Marks") used in or identifying the Software or its features and you may not use such Marks without the prior written permission of eFilm Medical Inc. or Merge Technologies Incorporated, as applicable. Without limiting the forgoing: (i) eFilm(tm), eFilm Lite(tm), eFilm Workstation(tm), Fusion eFilm (tm), eFilm Advanced Visualization (tm), eFilm Scan(tm), eFilm Video(tm) and the "Gear" logo are trademarks of eFilm Medical Inc. (ii) the Digital Holography logo, VoxgramR, VoxboxR, and HoloradR are registered trademarks of Holorad LLC and Simgram(tm) and the Holorad logo are trademarks of Holorad LLC. (iii) Merge(tm), DICOM by Merge and Merge Healthcare ™ are trademarks of Merge Technologies Inc. (iv) other trademarks are either registered trademarks or trademarks of their respective owners. Holographic rendering is licensed by eFilm Medical Inc. under U.S. Patents 6,123,733, 6,748,347, foreign patents and patents pending.

 

5. LIMITED WARRANTY AND LIMITATION OF LIABILITIES
(1)    Merge Healthcare warrants that the Software will perform in accordance with the Documentation for a period of: (a) thirty (30) days for evaluation version and (b) ninety (90) days for registered version from the date of receipt. Subject to section 2 above, Merge Healthcare will make commercially reasonable efforts to correct any failure to perform in accordance with the Documentation. 

(2)    DISCLAIMER OF WARRANTY & LIMIT OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ABOVE LIMITED WARRANTY IS GIVEN IN LIEU OF AND MERGE HEALTHCARE FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL MERGE HEALTHCARE, OR ANY RELATED PARTY, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, SERVICE INTERRUPTION, LOSS OF INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF MERGE HEALTHCARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MERGE HEALTHCARE'S TOTAL LIABLITY FOR ANY DIRECT DAMAGES SHALL NOT EXCEED THE AMOUNT PAID FOR THE SOFTWARE OR FIVE DOLLARS ($5.00), WHICHEVER IS HIGHER. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION(S) MAY NOT APPLY TO YOU.

 

6. INDEMNIFICATION
The Software is not intended to replace the skill and judgment of a qualified medical practitioner and should only be used by people that have been appropriately trained in the Software's functions, capabilities and limitations. For example, and without limitation, various functions of the Software, including Maximum/Minimum Intensity Projection (MIP), Multi-Planar Reconstruction (MPR), Simgram images, and corresponding Voxgram images, are intended for use only as an adjunct to two-dimensional medical image display techniques. You agree to hold harmless, indemnify and defend Merge Healthcare, its Sponsor, suppliers, officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys' fees and costs) arising out of or relating to your use of the Software. THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH YOU.

 

7. TERMINATION

 

This Agreement will automatically terminate at the end of the license or subscription period or if you fail to comply with any term hereof including failure to make any required payment when due. No notice shall be required from Merge Healthcare to effect such termination. You may also terminate this Agreement at any time by notifying Merge Healthcare in writing of termination. Without prejudice to any other rights, upon any termination of this Agreement, you shall immediately discontinue use of the Software and Documentation and shall within three (3) days return to Merge Healthcare, or certify destruction of, all full or partial copies of the Software, Documentation and related materials.

 

8. EXPORT RESTRICTION

 

The Software and Documentation or parts thereof, may be subject to the limitations on transfer imposed by the United States' Export Administration Act of 1979 as amended. You agree that you will not, and will not assist or permit others under your control and direction to, export the software or documentation or any part thereof, in contravention of these laws or the related rules and regulations.

 

9. MISCELLANEOUS

 

a) This Agreement shall constitute the complete and exclusive agreement between the Parties, notwithstanding any variance with any other written instrument submitted by you, whether formally rejected by Merge Healthcare or not. The terms and conditions contained in this Agreement may not be modified except in a writing duly signed by you and an authorized representative of Merge Healthcare. 
b) This Agreement is personal to you, and may not be assigned without Merge Healthcare's express written consent. 
c) If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. The parties specifically acknowledge and agree that this Agreement be drafted and fully enforceable as written in the English language. 
d) This Agreement shall be governed by the laws of the State of Wisconsin, United States of America, without regard to conflicts of law provisions, and you hereby consent to the exclusive jurisdiction of the courts sitting in Milwaukee County, Wisconsin, United States of America. 
e) Your remedies in this Agreement are exclusive. Any claim brought by you must be brought within one (1) year of the date the cause of action has accrued or be forever waived. 
f) To the extent that you have breached or have indicated your intention to breach this Agreement in any manner which violates or may violate Merge Healthcare's intellectual property rights, or may cause continuing or irreparable harm to Merge Healthcare (including, but not limited to, any breach that may impact Merge Healthcare's intellectual property rights, or a breach by reverse engineering), Merge Healthcare may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction. 

 
Country-required Terms 

For licenses granted in the countries specified below, the following terms replace or modify the referenced terms above. All terms that are not changed by these amendments remain unchanged and in effect.

 

AUSTRALIA

 

5. LIMITED WARRANTY AND LIMITATION OF LIABILITIES

The following new paragraph is added to the end of paragraph (1) of Section 5:

Acknowledgement.  Licensee acknowledges that the Product is not intended to replace the skill and judgment of a qualified medical practitioner and should only be used by professionals who have been appropriately trained. Licensee shall be responsible for the security and privacy of the Product configuration and data (including Personal Information and/or Sensitive Information) and for taking measures necessary to avoid security breaches (including hacker attacks) of the Product. Merge does not warrant that the Product will meet the needs of Licensee, that the Product will operate in the combinations that Licensee may select for use or with all non-Merge products used by Licensee, that the operation of the Product will be uninterrupted or error-free, or that all Software errors will be corrected. Licensee shall represent that it has obtained the individual consents necessary to permit Merge to access, use, and disclose to Merge’s third party agents any Personal Information or Sensitive Information to the extent reasonably needed by Merge to provide troubleshooting and other services related to Licensee’s use of the Software.

 

9. MISCELLANEOUS

 

Paragraph d) is replaced by the following:

d) The construction, validity and performance of this Agreement shall be governed by the laws of the State or Territory in which the transaction is performed to this Agreement, without regard to its principles of conflicts of law or to the United Nations Convention on Contracts for the International Sale of Goods. The Parties agree to submit to the jurisdiction of the courts of the State or Territory in which the transaction is performed for the conduct of any legal proceedings under or related to this Agreement. 


10. GOVERNMENTAL MATTERS; PRIVACY

 

A new Section 10 is added:

 

10. GOVERNMENTAL MATTERS; PRIVACY

 

(1)    Australian Consumer Law. To the extent the Australian Consumer Law applies to this Agreement, the Product comes with guarantees that cannot be excluded under the Australian Consumer Law and Licensee entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. Licensee is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. The warranties contained in Section 6 are subject to this Section 11. Certain legislation including the Competition and Consumer Act 2010 (Cth), may imply warranties, conditions or guarantees or impose obligations or remedies which cannot be excluded, restricted or modified except to a limited extent. To the extent that such legislation applies, this Agreement must be read subject to those statutory provisions and nothing in this Agreement is intended to alter or restrict the operation of such provisions.

(2)    Privacy. Merge, its Affiliates, and their third-party suppliers may collect, process, use, disclose, store, and maintain account data and Personal Information, Health Information and Sensitive Information which is processed in accordance with the Merge Privacy Statement available at http://www.merge.com/Common/Privacy.aspx. Merge and its subcontractors and Affiliates may process the business contact information of the Licensee, its employees and contractors worldwide for our business relationship. Licensee warrants and represents that it has obtained the necessary consents and made the necessary disclosures to enable Merge to do so. Merge will comply with requests to access, update, or delete such contact information. Merge may use personnel and resources in locations worldwide and third party suppliers to support the delivery of products and services. The Parties will comply with all applicable laws and regulations, including, without limitation, the Privacy Act 1988 (Cth), Health Records Act 2001 (Vic), Health Records and Information Privacy Act 2002 (NSW), Privacy and Data Protection Act 2014 (Vic) and Privacy and Personal Information Protection Act 1998 (NSW).  


11. ADDITIONAL PROVISIONS

 

A new Section 11 is added:

 

11.    ADDITIONAL PROVISIONS

 

(1)    Licensee shall grant Merge, the Sponsor, or the Sponsor’s Business Partners, or their nominee (acting reasonably) access (whether on-site or remote) to Licensee's facilities, systems, personnel and any information necessary for Merge, the Sponsor or the Sponsor’s Business Partners to comply with any regulatory obligations or applicable laws, including but not limited to, obligations imposed on Merge, the Sponsor or the Sponsor’s Business Partners by the Therapeutic Goods Administration.

(2)    In the event of a Product recall, Licensee shall comply with all reasonable directions of Merge, the Sponsor or the Sponsor’s Business Partners.  

(3)    Licensee shall give immediate written notice to the Sponsor’s Business Partner (from whom Licensee obtained the Merge Products) or to Merge or the Sponsor, of any information, circumstances, or events of which Licensee becomes aware in relation to:

a.    any malfunction or deterioration in the characteristics or performance of the Products; 
b.    any inadequacy in the design, production, labelling, instructions for use or advertising materials of the Products; 
c.    any use in accordance with, or contrary to, the use intended by the manufacturer of the Products;
d.    any actual or potential danger to any person arising out of the configuration, formulation, design, materials, or other characteristics of the Products; or 
e.    any actual or potential violation of any applicable law, rule, or regulation related to safety of Products. 

 

12. DEFINITIONS

A new Section 12 is added with the following terms:

 

12.    DEFINITIONS

 

“Affiliate” means any legal entity that a party controls, controls it, or with which it is under common control. Control means to own or control, directly or indirectly, over 50% of voting shares.
"Health Information" has the meaning given to that term in the Privacy Act 1988 (Cth).
“Personal Information” has the meaning given to that term by the Privacy Act 1988 (Cth).
“Sales Order” means a written order, issued by the Sponsor or Sponsor’s Business Partner, identifying certain Products and associated Product fees.
“Sensitive Information” has the meaning given to that term by the Privacy Act 1988 (Cth).
“Sponsor” has the meaning given to that term by the Therapeutic Goods Act 1989, and for the purposes of this Agreement the term “Sponsor” applies to IBM Australia Limited.
“Sponsor’s Business Partners” means any organization that has an agreement with Sponsor to promote, market and support certain Merge Products.

Merge eFilm Workstation™
Software License Agreement

CONTACT US:

 

Head Office - Australia

1/50 Yeo St

Neutral Bay NSW 2089

Phone:  1800 882 443  

Fax:     +61 2 9033 8686

New Zealand
75 Boston Road
Grafton, Auckland 1023, New Zealand

Phone:  0800 004 254

Fax:     +64 9 3350 443

HELPDESK SUPPORT:

 

8.00am – 5.00pm AEST Monday - Friday 
8.00am – 12.00pm AEST Saturday

Phone: 1800 882 443  AUSTRALIA

0800 004 254  NEW ZEALAND

800 901 478    HONG KONG

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