Please read this end user license agreement (“EULA”) before using the device. Any use of the device indicates end user’s acceptance of this EULA. Acceptance of this agreement is a condition to the rights granted herein. If end user does not agree with the terms of this eula, end user should not use the device.
1. INTRODUCTION. Thank you for selecting the i-STAT® Analyzer, ( which includes certain software components (collectively, the “Device”). This EULA is a legal agreement between you (“you”, “End User”), and Abbott Point of Care Inc. (“APOC”, “we”, “our” or “us”) that describes the terms and conditions applicable to your use of the software installed on or used in connection with the Device, including any software already pre-installed on the Device, software that you may download from the Support page tools and web-based components, together with all modifications, enhancements, updates or upgrades thereof (collectively, the“Software”).
2. LICENSE GRANT AND RESTRICTIONS. Subject to the terms and conditions of this EULA, APOC grants you a personal, limited, non-exclusive, non-transferable, non-assignable license, during the Term (as defined in Section 4), to electronically access and use the Software, for the sole purpose of using the Device solely in accordance with the Systems Operations Manual (the “Manual”) . You are not licensed or permitted under this EULA to do any of the following and shall not allow any third party to do any of the following: (i) access or attempt to access any other APOC systems, programs or data that are not made available for public use; (ii) copy, reproduce, alter, merge, modify, adapt, translate, republish, upload, post, transmit, resell or distribute in any way the Software (or the Devices) or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human perceivable form; (iii) permit any third party to benefit from the use or functionality of the Software via a rental, lease, timesharing, service bureau, or other arrangement; (iv) transfer any of the rights granted to you under this EULA; (v) work around any technical limitations in the Software, use any tool to enable features or functionalities that are otherwise disabled in the Software, or decompile, disassemble, or otherwise reverse engineer the Software except as otherwise permitted by applicable law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Software; or (vii) otherwise use the Software except as expressly allowed under this Section 2.
4. TERM AND TERMINATION. The Software is licensed during the time that the Devices are being used by End User, subject to compliance with the terms of this EULA and the Manual (the “Term”). This EULA shall terminate automatically if you fail to comply with any of its terms or conditions, including, without limitation, if you make any attempts to copy the Software, or transfer any copy of the Software or any portion thereof to another party or any attempt to modify the Software in any way. Upon termination you must immediately cease using the Software. Any termination of this EULA shall not affect APOC’s rights hereunder.
6. DISCLAIMER OF WARRANTIES. Except as expressly provided herein, the software, services, and any content accessible through the software are provided “as-is” and, to the maximum extent permitted by applicable law, APOC, its affiliates, licensors, third-party content or service providers, dealers and suppliers (if any), (APOC, et al are collectively referred to herein as the “suppliers”) disclaim all guarantees and warranties, whether express, implied or statutory, regarding the software, services, content, and related materials, within or outside of the United States. APOC does not warrant that the software is secure or free from bugs, viruses, interruption, or errors, or that the software will meet your requirements. APOC does not warrant that the use of the software will be uninterrupted or error free. some states do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. in that event, any implied warranties are limited in duration to 60 days from the date of purchase or delivery of the software, as applicable. however, some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. this warranty gives you specific legal rights, and you may have other rights that vary from state to state.
7. LIMITATION OF LIABILITY & DAMAGES. The entire cumulative liability of APOC and suppliers for any reason arising from or relating to this eula shall be limited to five hundred dollars or the amount paid by you for the software, whichever is less. to the maximum extent permitted by applicable law, APOC and suppliers shall not be liable for any indirect, special, incidental, punitive, exemplary, or consequential damages or for any damages relating to loss of business, telecommunication failures, the loss, corruption or theft of data, viruses, spyware, loss of profits or investment, use of the software with hardware or other software that does not meet APOC's systems requirements or the like, whether based in contract, tort (including negligence), product liability or otherwise, even if APOC and/or its suppliers, or either of their representatives have been advised of the possibility of such damages, and even if a remedy set forth herein is found to have failed of its essential purpose. some states do not allow the limitation and/or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
8. AUDIT. You agree that APOC may audit End User’s use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this EULA, End User shall reimburse APOC for all reasonable expenses related to such audit in addition to any other liabilities End User may incur as a result of such non-compliance.
9. AMENDMENT. APOC shall have the right, to change or add to the terms of this EULA at any time upon notice by any means APOC determines in its discretion to be reasonable, including posting information concerning any such change, addition, deletion, discontinuance or conditions in Software or on any APOC sponsored web site. Any use of the Software by you after APOC’s publication of any such changes shall constitute your acceptance of this EULA as modified.
10. EXPORT LAW. The Software is subject to U.S. export control laws and may be subject to export or import regulations in other countries. Unless in compliance with applicable law and specifically authorized in writing by the APOC prior to any Software access, you shall not export the Software under any circumstances whatsoever. In any case, you will indemnify and hold the APOC harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including reasonable attorney’s fees) arising from, or relating to, any breach by you of any of your obligations under this section.
11. SOFTWARE UPDATES. You shall update the Software in accordance with APOC’s Software update requirements. You shall be solely responsible for ensuring Software updates are timely made and for any consequences that result from failure to complete such updates in a timely manner.
12. MISCELLANEOUS. Except as expressly set forth in this EULA, this EULA is a complete statement of the EULA between you and APOC and sets forth the entire liability of APOC and Suppliers, and your exclusive remedy with respect to the Software, and its use. Suppliers and their agents, employees, distributors, and dealers are not authorized to make modifications to this EULA, or to make any additional representations, commitments, or warranties binding on APOC. The waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. Any waiver of the terms herein by APOC must be in a writing signed by an authorized officer of APOC and expressly referencing the applicable provisions of this EULA. If any provisions of this EULA are determined to be invalid or unenforceable under applicable law, such provision shall be ineffective to the limited extent of such invalidity or unenforceability, without rendering invalid or unenforceable the remaining provisions of this EULA. If a court of competent jurisdiction declares any such provisions to be invalid or unenforceable, the parties hereto shall request that such court reduce the scope, delete specific words or phrases from the provision, or replace the provision with a provision that is valid and enforceable and that comes closest to expressing the original intention of the parties hereto, and this EULA shall be enforceable as so modified in the court in which the provision was declared invalid or unenforceable. This EULA will be governed by the laws of the state of Illinois as applied to agreements entered into and to be performed entirely within Illinois, without regard to its choice of law or conflicts of law principles that would require the application of law of a different jurisdiction, and applicable federal law. Neither this EULA nor any of your rights or obligations hereunder may be assigned by you in whole or in part without the prior written approval of APOC. Any other attempted assignment shall be null and void. Headings are included for convenience only, and shall not be considered in interpreting this EULA. As used in this EULA, the word including means including but not limited to. This EULA does not limit any rights that APOC may have under trade secret, copyright, patent or other laws. The provisions of Sections 2, 3, 5, 6, 7, 8 and 12 shall survive the termination of this EULA.