Platform software end-user license agreemenT

This End-User License Agreement (“EULA”) is a legal agreement between you (“Licensee”) and Materialise (“Licensor”) for the Materialise Software that accompanies this EULA. Each of which is referred to as a “Party” and together constituting the “Parties” to this EULA.

BY INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS HEREOF.

Definitions

  • “Documentation” means the documentation relating to the use of the Software or Services, such as reference- and tutorial manuals in whatever form (printable/digital).
  • “Materialise” means Materialise NV, having its principal offices at Technologielaan 15, 3001 Leuven, Belgium.
  • “Licensor” means Materialise NV, having its principal offices at Technologielaan 15, 3001 Leuven, Belgium.
  • “Licensee” means any individual authorized by Licensor who logs in on or uses the Software in conformity with this EULA.
  • “Licensed Material” means media containing the Software and the Documentation.
  • “Password” means the password transferred from Licensor to Licensee allowing Licensee to use the Software.
  • “Service(s)” means services provided via the Software to Users. This includes the designing/manufacturing of TruMatch® CMF Solutions.
  • “Service(s) Fees” means the fees paid for the Services.
  • “Software” means the computer program in machine-readable form (object code and/or common intermediate language) and the Internet-based Services platform.

1. License Grant

Licensor hereby grants Licensee, which accepts, a personal, non-exclusive right to use the Licensed Material, only as authorized in this EULA.

Licensee agrees that he may not reverse assemble, reverse compile or otherwise translate the Software or any part thereof. Licensee agrees that he does not have the right to assign, sub license, transfer, pledge, lease, and rent or share his rights proceeding from this EULA, nor sell Licensed Material or any part or copy thereof.

2. Licensor’s Rights

Licensee acknowledges and agrees that the Software and User documentation are proprietary products of Licensor protected under copyright law. Licensee further acknowledges and agrees that all right, title and interest in and to the Licensed Material, associated intellectual property rights (including, but not limited to, trademarks), are and shall remain with Licensor. This License Agreement does not convey to Licensee any interest in or to the Licensed Material, but only a limited right of use, revocable in accordance with the terms of this EULA.

Materialise, PROPLAN CMF Online, SurgiCase Viewer and other names mentioned in the Documentation and Software are registered trademarks and/or trade names either owned by or licensed to Materialise. No Licensee has any right, title, or interest in those marks or names not previously expressly granted in writing to such user by Materialise or by other third-party licensors.

3. License Fees

Access to the Software is granted on a free basis. Services in the Software are subject to the specific fees per the specific Service ordered by Licensee.

4. Password

Access to the Software is granted by the use of a Password associated with the Licensee on a strictly personal basis. Under no circumstances can the Licensee share the Password or allow third parties to use the Password to access the Software. Each Password has a specified validity period. On his request, the Licensee will be enabled to reset his Password at the expiration of the specified period. The Licensee can then use the Software for a new period. The Licensor or its representative will have the right to control the computer(s) or server(s) on which the Software has been used, in order to verify the compliance with the above obligations.

5. Term

This EULA is effective upon the first use of the Software and shall continue until terminated. Each of the Parties may terminate this EULA at any time. Upon such termination, the Licensee will destroy any Licensed Material in his possession or will return the Licensed Material and any copies or extracts therefrom to the Licensor.

6. Warranty

The Software is provided “AS-IS”. Licensor disclaims all representations and warranties, express or implied, with respect to the Software, including, without limitation, warranties of fitness for a particular use or purpose, merchantability and non-infringement. Licensor makes no warranties that the Software will operate without interruption or be error-free. The entire risk as to the quality and performance of the Software shall be borne by Licensee.

7. Limitation of Liability

Licensor’s cumulative liability to User for any loss or damages resulting from any claims, demands or actions arising out of or relating to this Agreement shall not exceed the Service Fee paid to licensor for use of the Services. Licensor cannot be held liable for any claims, demands or actions, arising from the faulty performance of the Software, if such faulty performance is caused by the input of data from the Licensee or any third party. In no event shall Licensor be liable for any indirect, incidental, consequential, special or exemplary damages or lost profits, even if Licensor has been advised of the possibility of such damages.

8. Governing Law and Jurisdiction

This License Agreement shall be construed and governed in accordance with the laws of the Belgium. The courts of Leuven shall have exclusive jurisdiction.

9. Severability

Should any court or competent jurisdiction declare any term of this EULA void or unenforceable, such declaration shall have no effect on the remaining terms hereof.

10. No Waiver

The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

11. Data Privacy

Licensee acknowledges that Licensee – or his/her employer, as the case may be – and Synthes GmbH shall act as independent ‘controllers’ (as defined in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC – “General Data Protection Regulation” or “GDPR”) regarding all personal data uploaded to the Software by Licensee.

Furthermore, by accepting the terms of this EULA, Licensee acknowledges to have read the Software’s Privacy Policy (“TRUMATCH® CMF PRIVACY POLICY”), which contains information about how Licensee’s personal data shall be processed in the Software.

Licensee also represents and warrants that, before uploading any patient personal data to the Software, it shall deliver to said patient, and have said patient sign, a Patient Consent Form, both for the purposes of conveying legally required information to the patient and to obtain his/her consent regarding the processing of his/her personal data under the controllership of Synthes GmbH. Licensee shall not upload to the Software personal data of patients who have not signed such Patient Consent Form. Licensee shall keep all signed Patient Consent Forms until the Term of the EULA and deliver them to Licensor or Synthes GmbH upon the latter’s request. Until the end of the longest applicable statutory limitation period applicable to the TruMatch® CMF Solution products, including after termination, Licensee shall retain copies of the signed Patient Consent Forms and deliver them to Synthes GmbH upon the latter’s request.