Effective date: 16 April, 2024
This Diaverum end user software license agreement (“EUSLA”) is between you and Diaverum and covers the use of Software as defined herein (the “Diaverum Technology”). This document also incorporates any Service Use Terms that may apply to the Diaverum Technology.
IMPORTANT: By downloading, installing, activating, accessing or otherwise using the Diaverum Technology, you accept and agree to be bound by the terms and conditions of this EUSLA. If you are accepting this EUSLA on behalf of a company or other business entity, that entity will be deemed the Customer hereunder and you represent and warrant that you have authority to legally bind that entity to this EUSLA. If you do not have such authority or you do not agree to the terms of the EUSLA, neither you nor the entity is permitted to and may not download, install, access or use the Diaverum Technology.
1. DEFINITIONS
1.1. “EUSLA” means this end user license agreement.
1.2. “Diaverum”, “we”, “our” or “us” means Diaverum AB, a company incorporated under the laws of Sweden, with its registered address Hyllie Boulevard 53, SE 215 37, Malmö, Sweden
1.3. “Diaverum Firmware” means software that is embedded in any Diaverum Products.
1.4. “Diaverum Partner” means a partner who sells or provides Diaverum Technology.
1.5. “Diaverum Services” means services provided by Diaverum with which the Diaverum Technology can and is intended to be used.
1.6. “Confidential Information” means non-public proprietary information of the disclosing party (“Discloser”) obtained by the receiving party (“Recipient”) in connection with this EUSLA, which is (a) conspicuously marked as confidential or, if verbally disclosed, is summarized in writing to the Recipient within 14 days and marked as confidential; or (b) is information which by its nature should reasonably be considered confidential whether disclosed in writing or verbally.
1.7. “Documentation” means the datasheet applicable to the concerned Diaverum Technology and made available by Diaverum, as amended by Diaverum from time to time.
1.8. “Infringement Claim” means a claim, suit or proceeding brought against you by a third party alleging that the Diaverum Technology, used in accordance with and as authorized under this EUSLA and the applicable Documentation, infringes upon such third party’s patents, copyright or registered trademarks.
1.9. “Personal Data” has the same meaning as “personal data” under the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
1.10. “Service Use Terms” means additional terms, issued by Diaverum, applicable to you when you use the Diaverum Technology.
1.11. “Software” means any software conceived, developed or licensed by Diaverum, that is provided by Diaverum under the terms of this EUSLA (a) on its webpage, or (b) in any other distribution channel used by Diaverum from time to time, including all updates, upgrades and other modifications thereto that Diaverum may make available to you from time to time. Software includes Diaverum Firmware and applicable Documentation.
1.12. “You” means the individual or legal entity accessing or using the Diaverum Technology.
1.13. “User” means the individuals who are authorized to use the Diaverum Technology.
1.14. “Usage Rights” means the rights to access and use the Diaverum Technology as set forth in Section 3.1.
1.15. “Use Term” means the time period during which the Diaverum Technology may be accessed and used by you as set forth herein, subject always to early termination pursuant to the terms of this EUSLA. The Use Term is determined by the applicable Service Use Terms.
2. SCOPE
2.1. General. Your access to and use of the Diaverum Technology is subject to the terms of this EUSLA. The EUSLA covers the use and licensing of Software for on-premises/on-device installation.
2.2. Service Use Terms. In addition to the provisions set forth in this document, Service Use Terms may apply when you use the Diaverum Technology. The Service Use Terms typically appear when you download, install, activate, access or use certain Diaverum Technology and/or Diaverum Services for the first time.
2.3. Diaverum Partners. If you are a Diaverum Partner, this EUSLA applies to you with regard to any handling or use of the Diaverum Technology. If you distribute, sell, or transfer the Diaverum Technology to any customer or otherwise allow a customer to use the Diaverum Technology, you are responsible in relation to Diaverum for ensuring that the customer accepts and is bound by the terms and conditions in this EUSLA.
3. USING DIAVERUM TECHNOLOGY
3.1. License and Right to Use. Subject to the terms and conditions set out in this EUSLA, and your compliance therewith, Diaverum grants you a world-wide, non-exclusive, nontransferable, non-sublicensable, revocable, limited right during the Use Term to (a) download, install and/or use the Software with Diaverum Services only provided that any use of the Diaverum Technology are for your internal purposes and in accordance with the Documentation, this EUSLA and the applicable Service Use Terms.
3.2. Use by Third Parties. You may permit Users and other third parties to exercise your Usage Rights if such use is solely (a) on your behalf, (b) for your internal operations; and (c) in compliance with this EUSLA. You are liable for any breach of this EUSLA by Users and other third parties.
3.3. Beta and Trial Use. If Diaverum grants you Usage Rights to Diaverum Technology on a trial, evaluation, pre-view or beta basis (“Evaluation Software and Services”), you may only use the Evaluation Software and Services on a temporary basis for the period limited by the license key or specified by Diaverum in writing. If there is no period identified, such use is limited to 30 days after the Evaluation Software and Services are made available to you. Diaverum, in its discretion, may stop providing the Evaluation Software and Services at any time, at which point you will no longer have access to any related data, information, and files and must immediately cease using the Diaverum Technology. The Evaluation Software and Services may not have been subject to Diaverum’ usual testing and quality assurance processes and may contain bugs, errors, or other issues. Diaverum provides Evaluation Software and Services “AS-IS” without support or any express or implied warranty or indemnity for any problems or issues, and Diaverum will not have any liability relating to your use of the Evaluation Software and Services.
Support, etc.
3.4. Unless otherwise set out in the applicable Service Use Terms, this EUSLA does not entitle you to receive any support, updates, upgrades, maintenance, service levels, patches, bug fixes, or corrections of the Diaverum Technology.
3.5. Notwithstanding the foregoing, if Diaverum, at its discretion, releases any patches, bug fixes, updates, upgrades maintenance and service packs (collectively, “Patches”) that Diaverum deems necessary for the proper function, performance and security of the Diaverum Technology, you are required to accept and apply or install such Patches as instructed by Diaverum. Some Patches may be provided automatically without any actions required by you and you hereby consent to any such automatic Patches provided by Diaverum. Diaverum is not responsible for functionality, performance or security issues encountered with the Diaverum Technology that result from your failure to accept the application of Patches that are necessary for the proper function, performance and security of the Diaverum Technology.
3.6. All Patches and any other updates or upgrades provided by Diaverum under applicable Service Use Terms shall be deemed part of the Diaverum Technology and be subject to the terms and conditions of this EUSLA.
4. RESTRICTIONS AND RESPONSIBILITY FOR USE
4.1. For all Diaverum Technology. Except as expressly authorized in this EUSLA or any applicable Service Use Terms, you may not (and you may not allow, authorize or enable anyone to): (a) copy, transfer, distribute, sell, sublicense, lend, lease, rent, or otherwise make Diaverum Technology or any features or functionality thereof available to any third party (including managed service offerings, time-sharing, service bureau, software as a service, or as a cloud service); (b) remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks provided on or with the Diaverum Technology; (c) reverse engineer, decompile, adapt, decrypt, disassemble, or make derivative works of the Diaverum Technology or any part thereof or otherwise attempt to derive access to the source code or any part of the Diaverum Technology, except to the limited extent mandatory legislation specifically prohibits this restriction; (d) modify, adapt, translate or create derivative works based on the Diaverum Technology; (e) use the Diaverum Technology in violation of any law, regulation or rule, or in a manner that causes Diaverum to violate any law or regulation; (f) use the Diaverum Technology in a manner or for any purpose that is abusive, harassing, deceptive, obscene, defamatory, slanderous, offensive, or that a reasonable person would otherwise deem inappropriate; (g) use the Diaverum Technology in a manner that violates or otherwise encroaches on the rights of others, including infringement or misappropriation of any intellectual property, proprietary or privacy rights; (h) attempt to gain unauthorized access to, alter or destroy any portion of the Diaverum Technology, or any computer systems, software, accounts, data or information of Diaverum or any other person without the knowledge and consent of such person (whether through “hacking”, “spoofing”, “phishing”, “mining”, “pharming” or any other means); (i) use the Diaverum Technology for purposes of competitive analysis, the development of a competing product or service or any other purpose that is to Diaverum’s commercial disadvantage; (j) use the Diaverum Technology with any system or application where the use or failure of the system or application can reasonably be expected to threaten or result in personal injury, death, or catastrophic loss (examples include use in nuclear, avionics, navigation, military, medical, life support or other life critical applications) unless the Diaverum Technology is explicitly intended for such use as specified in the applicable Documentation; (k) use the Diaverum Technology in violation of the UN Universal Declaration of Human Rights or otherwise in violation of Diaverum’ ethical principles as described in Diaverum’ Code of Conduct (as available on Diaverum’ website www.Diaverum.com and as amended from time to time); (l) use (including make any copies of) the Software beyond the scope of the license granted herein; (m) combine the Software, in whole or part, with any other applications, unless explicitly allowed according to any applicable Service Use Terms or Diaverum’ written instructions; (n) publish the Software for others to copy; or (o) transfer the Software or this EUSLA to any third party.
4.2. Enforcement. Failure to comply with the provisions of this Section 4 constitutes a material breach of the terms and conditions upon which you are permitted to use the Diaverum Technology and may result in Diaverum taking any and all remedial actions available to us in our discretion. Remedial actions may include warnings; limiting, suspending or terminating access to the Diaverum Technology; removing, disabling or prohibiting access to content that violates this EUSLA; or legal proceedings against you. We may report any activity that we reasonably suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Diaverum will use reasonable efforts to notify Customer prior to any suspension, unless prohibited by applicable law or court order. You understand that in exercising our rights under this Section 4.2, we will not be liable to you or any other person for any inconvenience, losses or damages whatsoever.5. THIRD PARTY SERVICES
Certain Diaverum Technology may allow or enable you to connect (through an integration or otherwise), access and use third party products, software or services (“Third Party Services”) in association with the Diaverum Technology. you acknowledge that any such connection and access to such Third Party Services in association with the Diaverum Technology are made available to you for convenience only. Diaverum does not endorse any Third Party Services, nor does Diaverum make any representations or provide any warranties whatsoever with respect to any Third Party Services, and Diaverum specifically disclaims any liability or obligations with regard to Third Party Services. Third Party Services are not part of the Diaverum Technology. The Third Party Services are provided to you in accordance with their respective terms and conditions, and you alone are responsible for ensuring that you (a) procure appropriate rights to access and use any such Third Party Services in association with the Diaverum Technology and (b) comply with the terms and conditions applicable to its use.
6. CHANGES
Diaverum may make changes to the Diaverum Technology or the method of providing it at any time, for example in order to provide new functionality or features or to comply with the applicable legal framework. While Diaverum may make certain changes without advance notice to you, including through Patches or other minor changes or improvements, Diaverum agrees to notify you of any implementation of changes that would substantially impair the functionality or remove any key features of the Diaverum Technology. Such notice shall be given by providing written notice on www.Diaverum.com (a) three (3) months prior to the implementation of the change; or (b) if the change is urgent and three (3) months’ notice cannot be given, as soon as practical given the circumstances. Upon such notice, you may terminate this EUSLA. Should you not exercise your right to termination prior to the implementation of the change, you shall be deemed to have accepted the change as of its implementation. Whenever reasonably practicable, Diaverum will provide you with advance notice of such maintenance. You acknowledge that, from time to time, Diaverum may need to perform emergency Software maintenance without providing you advance notice. During such maintenance (i.e., both scheduled maintenance and emergency maintenance), Diaverum may temporarily suspend your access to Services and Software. Furthermore, Diaverum may, at its sole discretion, discontinue an Diaverum Technology upon twelve (12) months prior written notice to you. In the event that Diaverum’ discontinues a Software in accordance with this Section 6, any Usage Rights granted to you under this EUSLA will expire on the date of discontinuance at the latest. You hereby expressly acknowledge and agree that Diaverum shall not have any remaining obligations or liabilities whatsoever towards you under this EUSLA, notwithstanding anything to the contrary in this EUSLA, should Diaverum discontinue an Diaverum Technology in accordance with this Section 6.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. You may only use the Diaverum Technology in accordance with the terms of this EUSLA. you do not acquire any ownership interest in the Diaverum Technology under this EUSLA, or any ther rights thereto other than to use the same in accordance with the Usage Rights. Diaverum and its licensors reserve and shall retain their entire right, title and interest in and to the Diaverum Technology and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, or other intellectual property rights laws and all similar or equivalent rights or forms of protection, in any part of the world (“Intellectual Property Rights”) arising out of or relating to the Diaverum Technology. Diaverum will also exclusively own all rights, titles and interest in and to any information and usage data (other than the Customer Data) collected or generated from your access and use of the Diaverum Technology, including System Data. For clarity, such usage data does not include any Personal Data, unless explicitly specified in the applicable Service Use Terms.
7.2. You shall safeguard the Diaverum Technology from infringement, misappropriation, theft, misuse or unauthorized access. you shall promptly notify Diaverum if you become aware of any infringement of any Intellectual Property Rights in the Diaverum Technology and agree to fully cooperate in any legal action to enforce such Intellectual Property Rights.
7.3. You acknowledge and agree that the Software may contain proprietary third party software (“Third-Party Software”) or software licensed under open source licenses (“Open Source Software”) which may be subject to notices or additional terms and conditions (“Third-Party License Terms” and “Open Source License Terms”). The applicable Third-Party License Term and Open Source License Terms are identified, set out or referenced (with links): (a) directly under a tab in the concerned Diaverum Technology; (b) in the installation or license file in the Diaverum Technology; or (c) in the applicable Service Use Terms. By accepting this EUSLA, you are also accepting such Third-Party License Terms and Open Source License Terms, if any. Your use of any Third-Party Software or Open Source Software in conjunction with the Software in a manner consistent with the terms of this EUSLA is permitted, however, you may have broader rights under the applicable Open Source License Terms and nothing in this EUSLA is intended to impose further restrictions on your use of any Open Source Software. Copyrights to Third-Party Software and Open Source Software are held by the copyright holders indicated in the copyright notices in the corresponding source files.
8. DISCLAIMER AND INDEMNITIES
8.1. DISCLAIMER. THE DIAVERUM TECHNOLOGY, INCLUDING ANY THIRD-PARTY SOFTWARE OR OPEN SOURCE SOFTWARE, ARE DELIVERED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK AS TO THE USE, RESULTS AND PERFORMANCE OF THE DIAVERUM TECHNOLOGY AND ANY THIRD-PARTY SOFTWARE OR OPEN SOURCE SOFTWARE IS ASSUMED SOLELY BY YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DIAVERUM, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND THEIR RESPECTIVE LICENSORS (COLLECTIVELY, THE “DIAVERUM PARTIES”), EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, OR ANY WARRANTY ARISING OUT OF ANY PROPOSAL, SPECIFICATION OR SAMPLE WITH RESPECT TO THE DIAVERUM TECHNOLOGY, INCLUDING ANY THIRD PARTY SOFTWARE OR OPEN SOURCE SOFTWARE, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.
8.2. WITHOUT LIMITATION OF THE FOREGOING, THE DIAVERUM PARTIES PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE DIAVERUM TECHNOLOGY, INCLUDING ANY THIRD PARTY SOFTWARE OR OPEN SOURCE SOFTWARE, WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED OR THAT THE DIAVERUM TECHNOLOGY WILL BE FREE FROM CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND DIAVERUM DISCLAIMS ANY LIABILITY RELATING THERETO. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AN DIAVERUM PARTY OR ANY REPRESENTATIVE THEREOF SHALL CREATE A WARRANTY OR IN ANY WAY AFFECT THE SCOPE AND OPERATION OF THIS DISCLAIMER. THE DIAVERUM TECHNOLOGY IS NOT INTENDED FOR USE RELATED TO THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE DIAVERUM TECHNOLOGY COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
8.3. Diaverum has no liability or obligations with respect to any Infringement Claim arising from or based upon: (a) compliance with any designs, specifications, or requirements you provide or a third party provides on your behalf; (b) any modification or alteration of the Diaverum Technology, except by or as authorized by Diaverum in writing; (c) the combination, operation, or use of Diaverum Technology with non-Diaverum products, software or services not expressly authorized in the applicable Documentation; (d) any unauthorized use of the Diaverum Technology, including any use of the Diaverum Technology for a purpose or in a manner for which the Diaverum Technology was not designed or intended or in breach of the terms of this EUSLA; (v) your failure to modify, update or replace Diaverum Technology as required by Diaverum; or (vi) any Evaluation Software and Services.
8.4. Indemnification by you. You shall defend, indemnify, and hold the Diaverum Parties harmless from and against any and all damages and costs (including reasonable attorney’s fees and legal costs) incurred or sustained by an Diaverum Party as a result of a claim, suit or proceeding brought against an Diaverum Party arising out of or relating to (a) your (or your Users’) violation of this EUSLA or any applicable law or regulation; or (b) the Customer Data or Diaverum’ processing or use thereof in accordance with this EUSLA, including any infringement of third party intellectual property rights; or (c) your (or your Users’) access to, utilization of, or alleged use of the Diaverum Technology, including any integrations, modifications, customizations, adaptations or other developments by or on behalf of you or the use of the Diaverum Technology in combination with any other products, software, services or solutions not expressly authorized by Diaverum; or (d) your (or your Users’) gross negligence or willful misconduct; or (e) any dispute or issue between you and any third party. Diaverum shall have a right but not an obligation to undertake the sole control of the defense and settlement of any claim for which Diaverum can claim indemnity pursuant to this section. you undertake to (i) to give Diaverum all the information, authority and assistance Diaverum reasonably needs to defend against or settle the claim; and (ii) to cooperate with Diaverum at your expense, in response to a request for assistance. For the avoidance of doubt, you shall have no liability under this Section 12.9 if the Claim is covered by Diaverum’ obligation to indemnify you under Section 12.6.9. LIMITATION OF LIABILITY
9.1. Exclusion of Incidental and Consequential Damages. SUBJECT TO SECTION 13.5, UNDER NO CIRCUMSTANCES WILL THE EITER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING LOSS OF GOODWILL, LOSS OF BUSINESS, LOST PROFITS OR OTHER ECONOMIC DAMAGE, LOSS OR CORRUPTION OF DATA OR SOFTWARE, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR IMPAIRMENT OF OTHER GOODS, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, INCLUDING THE SALE, PURCHASE, DELIVERY, USE OR OTHER DISPOSITION OF THE DIAVERUM TECHNOLOGY. THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF WHETHER THE SUCH PARTY HAS BEEN ADVISED OF OR HAD OTHER REASON TO KNOW THE POSSIBILITY OF SUCH DAMAGE, OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN.
9.2. Maximum Aggregate Liability. SUBJECT TO SECTION 13.5, UNDER NO CIRCUMSTANCES WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE DIAVERUM PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, INCLUDING THE SALE, PURCHASE, DELIVERY, USE OR OTHER DISPOSITION OF THE DIAVERUM TECHNOLOGY EXCEED (a) THE TOTAL AMOUNT PAID IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM FOR THE DIAVERUM TECHNOLOGY THAT IS THE SUBJECT OF THE CLAIM, OR (b) WITH RESPECT TO SOFTWARE WHICH IS LICENSED ON A PERPETUAL BASIS, THE FEES PAID FOR THE RELEVANT SOFTWARE. IN NO EVENT WILL THE DIAVERUM PARTIES BE LIABLE FOR THE COSTS OF PROCUREMENT OF SUBSTITUTE SOFTWARE, DOCUMENTATION OR SERVICES. 13.3 THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 13.1 AND 13.2 SHALL APPLY NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN AND WITH RESPECT TO ANY AND ALL CLAIMS UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
9.3. Intentional Risk Allocation. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS (BOTH KNOWN AND UNKOWN) BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9.4. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 13 SHALL NOT APPLY TO (a) BREACHES OF SECTION 3, 4, 6, 10, 11.1, 12.9, 15 AND 16, AND (b) DAMAGES CAUSED BY WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, PERSONAL INJURY OR DEATH.
10. CONFIDENTIALITY
Recipient will hold in confidence and use no less than reasonable care to avoid disclosure of any Confidential Information to any third party, except for its employees, Affiliates, and contractors who have a need to know (“Permitted Recipients”). The Recipient may only use the Confidential Information of the Discloser for the purposes of fulfilling its obligations and exercising its rights under this EUSLA. Recipient: (a) must ensure that its Permitted Recipients are subject to written confidentiality obligations no less restrictive than the Recipient’s obligations under this EUSLA, and (b) is liable for any breach of this Section by its Permitted Recipients. These nondisclosure obligations will not apply to information that: (i) is known by Recipient without confidentiality obligations; (ii) is or has become public knowledge through no fault of Recipient; or (iii) is independently developed by Recipient. Recipient may disclose Discloser’s Confidential Information if required under a regulation, law or court order provided that Recipient provides prior notice to Discloser (to the extent legally permissible) and reasonably cooperates, at Discloser’s expense, regarding protective actions pursued by Discloser. Upon the reasonable request of Discloser, Recipient will either return, delete or destroy all Confidential Information of Discloser and certify the same. This Section 15 shall survive and continue to apply for three (3) years following any termination or expiration of this EUSLA.
11. EXPORT REGULATION
The Diaverum Technology may be subject to export controls, trade sanctions and other trade control laws and regulations of the EU and US and other governments, including the US Export Administration Regulation and its associated regulations (“Export Control Laws”). You agree to abide by the Export Control Laws where applicable. Under these laws, the Diaverum Technology may not be sold, leased, made available or transferred to embargoed countries, other restricted countries, restricted end-users or for restricted end-uses. You specifically agree that the Diaverum Technology will not be used for activities related to weapons of mass destruction, including activities related to the design, development, production or use of nuclear materials, nuclear facilities or nuclear weapons, missiles or support of missile project, or chemical or biological weapons. you understand that certain functionality of the Diaverum Technology, such as encryption or authentication, may be subject to import or export restrictions in the event that you transfer or make available the Diaverum Technology from the country of delivery and you are responsible for complying with applicable restrictions.
12. TERM AND TERMINATION
12.1. Term. This EUSLA is effective for the duration of the Use Term (after which it will automatically expire) if not terminated earlier pursuant to the terms of this EUSLA.
12.2. Termination for Breach. Each party shall have the right to terminate this EUSLA with immediate effect if the other party should violate any of the terms and conditions of this EUSLA and should fail to remedy such violation (if reasonably capable of remedy) within thirty (30) calendar days after receipt of written notice from the complaining party. Diaverum shall have the right to terminate this EUSLA at any time with immediate effect if you are in breach of any of the provisions of this EUSLA. Upon Diaverum’s termination of this EUSLA for your material breach, you will, in addition to any other rights or remedies available to Diaverum, pay any unpaid fees through to the end of the then-current Use Term.
12.3. Termination for Insolvency. Each party has the right to terminate this EUSLA at any time with immediate effect if the other party should become the subject of proceedings under any bankruptcy or insolvency law, enter into composition with its creditors, apply for financial re-organization, enter into liquidation, suspend payments to creditors or is, or can reasonably be deemed to be, insolvent.
12.4. Effects of Termination. In the event of termination of this EUSLA, all Usage Rights will automatically terminate and you shall immediately cease all use of the Diaverum Technology, and destroy all copies, full or partial, of the Software and Documentation.
12.5. Survival. It is expressly understood and agreed that the parties’ respective rights and obligations that by their nature continue beyond the termination or expiration of this EUSLA, as well as any provisions that by their express terms or by implication are to be performed after termination or expiration of this EUSLA or that are prospective in nature shall survive any expiration or termination of this EUSLA.
13. US GOVERNMENT RIGHTS
The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are the US Government or any contractor therefor, you shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
14. MISCELLANEOUS
14.1. Construction and Order of Precedence. For purposes of this EUSLA (a) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (b) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (c) words denoting the singular have a comparable meaning when used in the plural, and vice-versa. The parties agree that this EUSLA shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party. In the event of any conflicts or inconsistencies, the following order of precedence shall apply, but only with respect to the specific subject matter of each: (a) any specific Service Use Terms; and (b) this EUSLA.
14.2. Relationship Between the Parties. you understand and agree that by accepting this EUSLA and using the Diaverum Technology, no legal partnership or agency relationship is created between you and Diaverum. you and Diaverum are independent contractors, and nothing in this EUSLA shall be construed to (a) give either you or Diaverum the power to direct and control the day-to-day activities of the other, (b) constitute a joint venture, coownership or employment relationship, or (c) authorize either you or Diaverum to create or assume any obligation on behalf of the other for any purpose whatsoever.
14.3. Consumers. Diaverum acknowledges that the laws of certain jurisdictions provide legal rights to consumers (someone who uses the Diaverum Technology outside of his or her trade, business or profession) that may not be overridden by contract or waived by those consumers. If you are such a consumer, nothing in this EUSLA limits any of those consumer rights
14.4. Assignment. You may not assign your rights or obligations hereunder without Diaverum’ prior written consent except to an entity which acquires or succeeds to all or substantially all of your business or assets, whether by merger, sale of assets, or otherwise, and which assumes and agrees in writing to be bound by all of your obligations hereunder. Diaverum may assign the provision of the Diaverum Technology or any of its rights and obligations hereof, partly or in total, at any time.
14.5. Entire EUSLA; Amendments. This EUSLA including any applicable Service Use Terms constitute the entire agreement between you and Diaverum, and supersedes any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you in relation to its purchase or use of the Diaverum Technology do not apply, do not override or form a part of this EUSLA, and are void. We reserve the right to make changes to this EUSLA at any time by posting a revised version of it on our website. The revised EUSLA will become effective and apply to you from the date of its publication on the website.
14.6. No Waiver. A party’s failure or delay to enforce a provision under this EUSLA is not a waiver of its rights to do so later.
14.7. Verification. During the Use Term and for a period of 12 months after its expiry or termination, you will take reasonable steps to maintain complete and accurate records of your use of the Diaverum Technology sufficient to verify compliance with this EUSLA (“Verification Records”). Upon reasonable advance notice, and no more than once per 12-month period, you will, within 10 days from Diaverum’ notice, allow Diaverum and its auditors access to the Verification Records and any applicable books, systems, equipment, and accounts during your normal business hours. If you are not in material compliance with the terms of this EUSLA, then notwithstanding any rights or remedies available to Diaverum in respect of such non-compliance, you shall reimburse Diaverum for the expenses incurred by Diaverum in conducting the audit.
14.8. Publicity. Except as explicitly permitted or required, by this EUSLA, you may not use Diaverum’ trade names, trademarks, logos, domain names or other distinctive brand features. you will not make any statement regarding your use of the Diaverum Technology which suggests partnership with, sponsorship by, or endorsement by Diaverum without Diaverum’ prior written approval.
14.9. Sub-contractors. Diaverum may delegate, subcontract or assign the performance of its obligations under this EUSLA, to an Affiliate or a sub-contractor. However, Diaverum shall at all times and under all circumstances be responsible under this EUSLA for any and all acts and omissions of such Affiliates or sub-contractors and Diaverum thus assumes full responsibility for its Affiliates or sub-contractors.
14.10. Severability. If at any time any provision of this EUSLA is or becomes illegal, invalid or unenforceable in any respect under any law or regulation of any jurisdiction, the legality, validity or enforceability of the other provisions will not in any way be affected or impaired thereby and the invalid or unenforceable provision will be replaced with a provision that is valid and enforceable and that comes closest to its intention. 19.11 Notices. Any notice delivered by Diaverum to you under this EUSLA will be delivered via email, regular mail or postings on Diaverum.com. Notices to Diaverum should be sent to Diaverum Communications AB, att: assistant of the CEO, Gränden 1, 223 69 Lund, Sweden unless this EUSLA, applicable Service Use Terms or an order specifically allows other means of notice.
14.11. Compliance. Each party will comply with all applicable laws, statues and regulations, including (a) anti-corruption and anti-bribery related laws, statues and regulations, and (b) applicable sanctions, export and import control laws and regulations, such as the US Export Administration Regulations (including prohibited party lists issued by other federal governments), catch-all regulations and all national and international embargoes. Diaverum may restrict the availability of the Diaverum Technology in any particular location or modify or discontinue features to comply with applicable laws and regulations. Any violation of this Section 19.12 by you shall be determined at the reasonable discretion of Diaverum and serve as the basis for immediate termination of the relationship with you.
14.12. Force Majeure. Except for payment obligations, neither party shall be liable for any default or delay in the performance of its obligations under this EUSLA if and to the extent that such default or delay arises, directly or indirectly, from causes beyond such party’s reasonable control, including, but not limited to, fires, floods, earthquakes, pandemics, acts of God or public enemies, or acts, orders or decrees of governmental authorities, disruption or outage of communications, power or other utility or failure to perform by any supplier or other third party. In the event that the force majeure extends for a period of one (1) month, either party shall be entitled to cancel all or any part of this EUSLA without any liability to the other party.
15. GOVERNING LAW AND DISPUTE RESOLUTION
15.1. Subject to Section 14.3, the substantive laws of Sweden shall govern this EUSLA.
15.2. Subject to Section 14.3, any dispute, controversy or claim arising out of or in connection with this EUSLA, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of three arbitrators. The seat and place of arbitration shall be Malmö, Sweden. The language to be used in the arbitral proceedings shall be English, unless the parties agree otherwise. Nothing in this provision shall prevent the parties from seeking any injunctive or equitable relief by a court of competent jurisdiction.
15.3. The parties undertake and agree that all arbitral proceedings will be kept strictly confidential. This confidentiality undertaking shall cover, inter alia, all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings.
15.4. Notwithstanding the foregoing, a party shall not be prevented from disclosing such information in order to safeguard in the best possible way his rights vis-à-vis the other party in connection with the dispute, or if and to the limited extent obligated to do so pursuant to statute, regulation, a decision by an authority, a stock exchange agreement or similar.