End User License Agreement
Important: This software End User License Agreement (“EULA") is a legal agreement between you ("Licensee") (either an individual or, if purchased or otherwise acquired by or for an entity, an entity) and OtoAccess A/S, Audiometer Allé 1, DK-5500 Middelfart, Denmark ("Licensor").
READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE “SOFTWARE” (AS DEFINED BELOW). IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL OR USE THE SOFTWARE.
In consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
I. Content of Software license; Grant of License
The materials that are the subject of this Agreement shall consist of electronic information in form of computer software and product documentation to the OtoAccess Database Noah export (the “Software”) made available by Licensor. The Software is a subscription-based feature that is connected to the individual OtoAccess Database product key (OtoAccess Database v2.3 or newer). The subscription enables the Noah export feature in your OtoAccess Database. This will enable the Licensee to export OtoAccess Database patients and supported measurements to the HIMSA Noah database.
Licensee and its Authorized Users acknowledge that the title, ownership rights and intellectual property rights to the Software and all and any trademarks or service marks relating thereto remain with Licensor and/or its suppliers.
Licensor hereby grants to Licensee a non-exclusive and non-transferable license to use the Software and the right to provide the Software to Authorized Users in accordance with the terms of this Agreement.
This License does not entitle Licensee to receive any updates, upgrades or corrections (collectively “Updates”) to the Software. However, should Licensor elect to provide Licensee with Updates, by accepting those Updates, Licensee agrees that they are covered by this License, unless expressly subject to the terms of another agreement.
II. Delivery/Access of Software to Licensee
Licensor will provide the Software to the Licensee in the following manner:
The Noah Export functionality will be included in the OtoAccess Database version 2 software package from version 2.3. The Feature will be accessible for use as a subscription added to a valid license OtoAccess Database license. The subscription can be entered into and added to a valid OtoAccess Database license on the OtoAccess.com license web portal.
The OtoAccess Database software can be downloaded from the OtoAccess.com website.
By using the Software, the Licensee accepts subscribing to the Software. The fee payable for the subscription is a non-refundable initial pre-payment for the chosen subscription lengths. After the annual or multiannual subscription period, you will be billed a recurring renewal fee at the then-current subscription rate of the same length as the previous subscription period. You may change your subscription length or cancel your subscription at any time before the next billing cycle, subject to terms of our cancellation policy.
Automatic renewal terms: We bill your credit card for the subscription renewal fee when your new subscription period starts. You accept responsibility for all reoccurring charges prior to cancellation. Once you subscribe, OtoAccess will automatically process your annual or multiannual subscription fee at the then- current subscription rate.
Cancellation, subscription change and refund policy: You can change your next subscription period or cancel your subscription at any time up to 30 days prior before your subscription-period expires by logging into the web portal and cancelling your subscription or automatic renewal.
If the subscription is cancelled, the Software will keep functioning in the remainder of your subscription period.
Subscriptions are non-refundable from the date of subscription.
Service availability and requirements: OtoAccess A/S cannot be held liable for the uptime andvaccessibility of the Software as this is operated by HIMSA.
To function the service requires Internet access and specific network infrastructure requirements are defined by HIMSA. OtoAccess A/S cannot be held liable for these requirements as these must be met by the Licensee.
IV. Authorized Use of Software
Authorized Users. "Authorized Users" are:
Persons Affiliated with Licensee. Full and part time employees (including faculty, staff, affiliated researchers and independent contractors) of Licensee and the institution of which it is a part, regardless of the physical location of such persons, provided that they hold valid passwords to the PC system on which the Licensed Material is rightfully installed.
Authorized Use. Licensee and Authorized Users may make all use of the Software as is consistent with applicable copyright law.
V. Access by and Authentication of Authorized Users
Licensee and its Authorized Users shall be granted access to the Software pursuant to the following:
IP Addresses. Authorized Users shall be identified and authenticated by the use of Internet Protocol ("IP") addresses provided by Licensee to Licensor.
Developing Protocols. Authorized Users shall be identified and authenticated by such means and protocols as may be developed during the term of this Agreement.
VI. Specific Restrictions on Use of Software
Unauthorized Use. Except as specifically provided elsewhere in this agreement, Licensee shall not knowingly permit anyone other than Authorized Users to use the Software.
Modification of Software. Licensee shall not modify or create a derivative work of the Software without the prior written permission of Licensor.
Licensee may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.
Removal of Copyright Notice. Licensee may not remove, obscure or modify any copyright or other notices included in the Software.
Commercial Purposes. Other than as specifically permitted in this Agreement, Licensee may not use the Software for commercial purposes, including but not limited to the sale of the Software or bulk reproduction or distribution of the Software in any form.
Licensee may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network.
You may not sell, rent, lease, or sublicense the Software.
In the event that Licensee fails to comply with this EULA, Licensor may terminate the license and Licensee must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination).
Licensee shall not use the Software to develop any software or other technology having the same primary function as the Software, including but not limited to using the Software in any development or test procedure that seeks to develop like software or other technology, or to determine if such software or other technology performs in a similar manner as the Software.
VII. Licensor Performance Obligations
Documentation. Licensor will provide help files and other appropriate user documentation such help files and other appropriate user documentation to be delivered upon conclusion of this Agreement and updated upon Licensor’s sole discretion.
Support. Licensor will offer reasonable activation or installation support, including assisting with the implementation of any Licensor software. Such support will be provided within Licensor’s normal working hours and will be given by email, phone or fax as designated by Licensor. Licensor may offer reasonable levels of continuing support to assist Licensee and Authorized Users in use of the Software.
Training. Licensor will provide appropriate training to Licensee staff relating to the use of the Software and any Licensor software. Such training will be provided by Licensor in a form that Licensor deems appropriate. Licensor undertakes no warranties in relation to the provided training.
Quality of Service. Licensor will use reasonable efforts to ensure that the Licensor's server or servers have sufficient capacity and rate of connectivity to provide the Licensee and its Authorized Users with a quality of service comparable to current standards in the on-line information provision industry, however, Licensor undertakes no warranties of such capacity and connectivity.
Licensee assumes responsibility for the selection of Software to achieve Licensee’s intended results, and for the installation, use, and results obtained from Software. Licensor warrants to Licensee that under normal use and conditions, Software will perform substantially in accordance with Licensor’s published documentation for a period of ninety (90) days from the date of purchase (the “Warranty Period”). If the Software fails to so perform during the Warranty Period, upon Licensee’s written request Licensor will, at its option, either replace Software with a functionally equivalent program or refund the license fee paid for the relevant period the Software has not performed as warranted.
EXCEPT AS SPECIFIED IN THIS SECTION, THERE ARE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND SOFTWARE ARE PROVIDED “AS IS”.
Licensor’s entire liability and Licensee’s exclusive remedy under the foregoing Limited Warranty shall be, at Licensor’s option: (i) replacement of a copy of the Software that does not meet Company's Limited Warranty, or (ii) refund of the license fee paid for the relevant period the Software has not performed as warranted. THESE ARE THE SOLE AND EXCLUSIVE REMEDIES for any and all claims of any type, whether in contract or in tort, that Licensee may assert against Licensor arising out of or in connection with the Software, whether made or suffered by Licensee or anyone else. IN NO EVENT WILL LICENSOR BE LIABLE TO YOU OR ANY OTHER PARTY FOR DIRECT, INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES ARISING FROM THE USE OF OR INABILITY TO USE SOFTWARE OR FROM ANY BREACH OF THIS WARRANTY.
VIII. Licensee Performance Obligations
Provision of Notice of License Terms to Authorized Users. Licensee shall make reasonable efforts to provide Authorized Users with appropriate notice of the terms and conditions under which access to the Software is granted under this Agreement including, in particular, any limitations on access or use of the Software as set forth in this Agreement.
Protection from Unauthorized Use. Licensee shall use reasonable efforts to inform Authorized Users of the restrictions on use of the Software. In the event of any unauthorized use of the Software by an Authorized User, (a) Licensor may terminate such Authorized User's access to the Software, and (b) Licensee may terminate such Authorized User's access to the Software upon Licensor's request. Licensor shall take none of the steps described in this paragraph without first providing reasonable notice to Licensee (in no event less than 2 weeks) and cooperating with the Licensee to avoid recurrence of any unauthorized use.
Maintaining Confidentiality of Access Passwords. Where access to the Software is to be controlled by use of passwords, Licensee shall issue log-on identification numbers and passwords to each Authorized User and use reasonable efforts to ensure that Authorized Users do not divulge their numbers and passwords to any third party. Licensee shall also maintain the confidentiality of any institutional passwords provided by Licensor.
Licensee bears all responsibility for protection of Patient Data. It is the sole responsibility of Licensee to set up administrative procedures, physical security, technical security services and technical security mechanisms in order to safeguard any individual’s health information against unauthorized disclosure.
IX. Mutual Performance Obligations
Confidentiality of User Data. Licensor and Licensee agree to maintain the confidentiality of any data relating to the usage of the Software by Licensee and its Authorized Users. Such data may be used solely for purposes directly related to the Software and may only be provided to third parties in aggregate form. Raw usage data, including but not limited to information relating to the identity of specific users and/or uses, shall not be provided to any third party.
X. Early Termination
In the event that either party believes that the other materially has breached any obligations under this Agreement, or if Licensor believes that Licensee has exceeded the scope of the License, such party shall so notify the breaching party in writing. The breaching party shall have 1 month from the receipt of notice to cure the alleged breach and to notify the non-breaching party in writing that cure has been effected. If the breach is not cured within the 1 month period, the non-breaching party shall have the right to terminate the Agreement without further notice. Upon termination of this Agreement Licensee shall forthwith cease using and shall destroy all copies and partial copies in any form of Software in Licensee’s possession.
XI. Limitations on Warranties
Notwithstanding anything else in this Agreement:
Neither party shall be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, arising out of the use of or the inability to use the Software.
Licensor makes no representation or warranty, and expressly disclaims any liability with respect to the content of any Software, including but not limited to errors or omissions contained therein, libel, infringement of rights of publicity, privacy, trademark rights, moral rights, or the disclosure of confidential information.
Licensor makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb or other such computer program. Licensor further expressly disclaims any warranty or representation to Authorized Users, or to any third party.
XII. Governing Law and Dispute Resolution
This Agreement shall be governed by Danish law. In the event any dispute or controversy arising out of or relating to this Agreement, the parties agree to exercise their best efforts to resolve the dispute as soon as possible. If the matter cannot be solved amicably, the dispute shall be settled by the Danish courts. The parties shall, without delay, continue to perform their respective obligations under this Agreement which are not affected by the dispute.
XIII. Force Majeure
Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.
XIV. Entire Agreement
This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written.
No modification or waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Licensor and Licensee.
If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
XVII. Waiver of Contractual Right
Waiver of any provision herein shall not be deemed a waiver of any other provision herein, nor shall waiver of any breach of this Agreement be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
XVIII. Data Privacy disclaimer
You are responsible for personal data you collect, transmit, store or otherwise process in the Software, and responsible for complying with relevant data privacy regulation, which may include EU GDPR and/or HIPAA. The manufacturer does not have access to nor controls the personal data you process in the Software, and the manufacturer assumes no liability regarding the legality of your personal data processing activities in the Software.
The Software logs data about the computer on which it is installed for support reasons. Further, the Software may log data about its usage patterns and anonymous usage data from test sessions to be used for future development of the software and other products.
By using the Software, you agree to the logging of various information, including but not limited to: software version, .Net version, OS installed on the computer, language (installed on the computer), screen resolution, usage patterns for the software and anonymized test data from the software. This information will be logged on the manufacturers servers administered by the manufacturer and be used for the described purposes.
You will have the option not to share usage data and/or test data in the preference menu.
All data logged is anonymous and is therefore not covered by EU GDPR consent. No individual can be identified and therefore the manufacturer is not able to or obliged to erase data requested by individuals or groups.