The following are Terms and Conditions (“Terms and Conditions”) associated with Roche IT Solutions, including Roche Middleware Solutions, cobas Infinity, VANTAGE, Virtuoso, uPath, and VENTANA Connect.
1. DEFINITIONS: Any capitalized term defined herein shall have the meaning ascribed to it in these Terms and Conditions. In addition to terms defined as used in these Terms and Conditions, the following definitions shall be used herein:
- “Software” means, the Software Product and Documentation provided to Customer
- “Software Product” means a specific software product identified in Appendix D, including drivers for instruments or accessories provided by Roche, as applicable.
- “Documentation” means Roche’s then-current documentation for the Software made available to Customer by Roche in writing, including user manuals, training guides, instructions and other updates or alerts provided by Roche from time to time.
- “Approved Third Party Software” means any third party software (including drivers for instruments or accessories provided by Roche) in a particular release version which Roche has expressly approved in writing or in any product information or other publication to be used in connection with or parallel to the Software.
- “Software Services” means the maintenance and support services for the Software being provided by Roche. Software Services may include Updates or Upgrades.
- An “Update” is a change to Software which is necessary to enable the Software to continue to operate at existing functionality levels or to correct software defects.
- An “Upgrade” is an improvement to Software that adds new functionality to the Software or any Product. “Upgrade” does not include any new licensable features which Roche has determined, in Roche’s sole discretion; require payment of an additional license fee.
- “Installation” means each licensed copy of Software installed at a Customer’s site.
- “Acceptance” means acknowledgement by Customer of completion of installation of the Software
- “Roche Product Supply Agreement” means one or more separate agreement(s) entered into between Customer and Roche pursuant to which Customer has agreed to acquire reagents, supplies, consumables (collectively, the “Reagents/Supplies”), or purchase, lease or acquire equipment (the “Equipment,” and collectively with IT solutions other than Software, and Reagents/Supplies, the “Products”) and service from Roche for Customer’s use in performing in-vitro diagnostics testing. The Roche Product Supply Agreement may include an allowance, surcharge or discount for the Software or Software Services described in Appendix D or to pursuant to which the Products and Services are “bundled” into the transactions contemplated by the Roche Product Supply Agreement.
2. CERTIFICATION OF USE: By accepting these Terms and Conditions, Customer is certifying that (a) the party signing knows how the Software will be used, and (b) that the Software will not be used in a blood bank or transfusion setting as long as Customer continues to use the Software. For purposes of this certification, a blood bank or transfusion setting is any setting involving the collection, processing, compatibility testing, storage and/or distribution of blood and blood components, including the manufacturing and maintaining of these products and associated databases. If Customer’s use of the Software changes in a way that causes this certification to become inaccurate, Customer will notify Roche as soon as possible.
3. LICENSING CONDITIONS:
- License Grant. Subject to these Terms and Conditions and for the term of use specified in Appendix D, Roche grants Customer a perpetual, limited, personal, non-transferable, non-exclusive, non-assignable license to use the Software in object code only, and the Documentation for such Software, for Customer’s internal use in the United States of America.
- Installations. The number and type of Software Installations are set forth in Appendix D.
- Restrictions. Customer shall not, and shall not permit any third party to, translate, reverse engineer, decompile, recompile, update, reproduce or modify all or any part of the Software or merge the Software into any other software. Customer shall not allow any third party to have access to the Software without Roche’s prior written consent. Customer shall not sell, assign, transfer, publish, disclose, display or otherwise make available the Software or copies thereof to any third parties.
- Ownership of Materials. All patents, copyrights, trade secrets, trademarks and other proprietary rights in or related to the Software are and will remain the exclusive property of Roche, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Software is used or licensed. Customer will not take any action that jeopardizes Roche’s proprietary rights or acquire any right in the Software. Roche will own all rights in any copy, translation, modification, adaptation, derivation, compilation, updated works and partial copies of the Software including any improvement or development thereof. Customer shall assign and hereby assigns these rights to Roche and will obtain, at Roche’s request, the execution of any instrument that may be appropriate to perfect these rights in Roche’s name. Customer shall secure and protect the Software, Documentation and copies thereof in a manner consistent with the maintenance of Roche’s or applicable third party rights therein and to take appropriate action by instruction or agreement with its employees or consultants who are permitted access to the Software to satisfy its obligations hereunder.
4. TERM AND TERMINATION :
- Term. Customer’s contractual agreement with Roche relating to the Software (the “Term”) shall commence on the Effective Date of Appendix D and shall remain in effect until otherwise terminated in accordance with the provisions of these Terms and Conditions.
- Termination for Default. These Terms and Conditions shall remain in effect until the licenses for all Software Products licensed hereunder have terminated. Notwithstanding any other term or condition set forth herein, Roche may terminate: (i) if Customer is in default of, violates or fails to perform any term or condition of the applicable Roche Products Supply Agreement, Appendix D, or these Terms and Conditions and such failure continues for thirty (30) days after notice thereof by Roche; or (ii) as otherwise expressly permitted pursuant to these Terms and Conditions. Except as otherwise specifically expired pursuant to its terms, the rights and obligations under Section 11 (Limited Warranty; Limitation of Liability; Indemnity) of this Agreement shall survive the cancellation, termination, or expiration of Appendix D and/or these Terms and Conditions.
- Remedies on Default. In the event of default by Customer as set forth in these Terms and Conditions, in addition to any remedies set forth in these Terms and Conditions, Customer shall immediately (a) cease all use of the Software, and (b) immediately delivery to Roche all copies of all Software in Customer’s possession and certify in writing to Roche within ten (10) business days after termination that the foregoing actions haven been taken. Further, Roche shall have the right to pursue any other remedy provided by law. Customer agrees to pay all costs of collection, including without limitation, court costs, and reasonable attorneys’ fees.
5. BILLING AND PAYMENT TERMS: Roche will begin billing Customer for the Software Products and Services on the date of installation completion for the first Software Product installed. Service will be billed as per the payment method defined in Appendix D. Roche will provide Customer with payment terms of net thirty (30) days from the date of invoice. Payment by credit card is acceptable at point of sale only. Failure to pay invoices when due may result in non-shipment of all future orders of products that Customer purchases from Roche and/or Customer being notified by Roche that Customer is in default of these Terms and Conditions.
6. SOFTWARE EARLY TERMINATION FEE: Both parties agree and acknowledge that in the event of a default of these Terms and Conditions by Customer which results in the early termination of Customer’s obligations as set forth in these Terms and Conditions and/or Appendix D, the “Software Early Termination Fee” that Customer agrees to pay will be: (a) the sum of Customer’s remaining monthly payments for all rented and leased Software, less unearned interest; plus (b) the sum of Customer’s remaining payments for Software Service, whether or not included in the Software price; plus (c) the pro-rata remaining value of all Software and Software Services identified as “included” or “Included in Reagents”, provided at “No Additional Charge”, or identified as Discounts. Customer agrees that the provisions related to the Software Early Termination Fee are reasonable in light of the circumstances and are not disproportionate to the presumed injury or loss resulting from Customer’s default.
- Software. Roche shall provide Customer with the Software in object code only, pursuant to the Installation/Acceptance Section below, as well as Documentation for the Software in electronic form.
- Third Party Software. Any other third party software provided to Customer in connection with the Software is licensed subject to applicable third party terms and conditions. See Section 8.
- Roche Middleware Solutions and cobas Infinity Test Systems. If Customer acquires a separate Software system(s) for the purpose of testing changes to Customer’s laboratory environment, Customer agrees that this Software will not be utilized for reportable patient results.
- Network Connections and Infrastructure. Customer shall be responsible for the acquisition, installation, testing, monitoring and maintenance of adequate hardware, network connections and services, including but not limited to all network infrastructure related hardware and software such as switching and routing equipment, name resolution systems, centralized data backup and recovery systems, virus protection systems, firewall and intrusion detection systems, physical security, etc. This shall be known as the “IT Infrastructure”.
- The installation of each Software shall occur following the completion and approval by Customer and Roche of a detailed site survey in accordance with an installation timeline to be provided by Roche. Customer and Roche agree to use their best efforts to maintain the estimated schedule in the installation timeline, however, neither Customer nor Roche will be liable to the other for delays as a result of events beyond their control.
- Customer's acceptance of Software occurs upon the earlier of Customer’s (1) written confirmation of acceptance or (2) use of Software in a manner that exceeds the scope or duration of the tasks in the installation timeline (for example, use in the assistance of actually processing patient billable results).
- Roche Middleware Solutions and cobas Infinity Installation Processes. For each Installation, Roche will install the Software and necessary license files. Roche will provide setup of the connectivity to analytical Equipment and Customer’s LIS for the processing of orders and results. Roche will not provide any additional services as part of installation, including but not limited to consulting services or assistance to Customer in implementing any other Software functionality. This assistance may be acquired from Roche at an additional charge.
8. SOFTWARE SUBLCIENSES: