END USER LICENSE AGREEMENT (EULA)
FOR ALL Benepet Co., Ltd. PRODUCTS and SOFTWARE
IMPORTANT - PLEASE READ THIS AGREEMENT CAREFULLY
BEFORE INSTALLING OR OTHERWISE USING THE LICENSED SOFTWARE
OR PRODUCT. THIS AGREEMENT APPLIES TO ALL LICENSED SOFTWARE, ALL LICENSED PRODUCTS, AND ALL THIRD PARTY PRODUCTS.
By using this product and/or software in any way, you agree with the terms of this EULA as the exclusive and binding contract between you and Benepet Co., Ltd. (“Benepet®”), and you agree to comply with all of the provisions of this EULA. IF YOU DO NOT AGREE, THEN DO NOT INSTALL OR USE THE PRODUCT OR SOFTWARE.
1.1 We, our, and us means Benepet Biomedical Co., Ltd. (“Benepet®”).
1.2 Benepet® Product(s) means any equipment, consumables, components, parts, software, and materials sold by Benepet®. Benepet® Products may incorporate Third Party Products, sold or otherwise made available by Benepet®.
1.3 Licensed Software means the Benepet® Product(s) software and the accompanying materials provided with such Benepet® Product(s) software. Licensed Software could be a stand-alone product or incorporated as a component within a Licensed Product, sold or otherwise made available by Benepet® and/or third parties. This License Agreement applies to the Licensed Software as well as the Licensed Product that incorporates the Licensed Software as a component within such Licensed Product.
1.4 Marks means names, logos, designs and other materials displayed in connection with Benepet® products that constitute trademarks, tradenames, service marks, trade dress or logos of Benepet® or other entities.
1.5 Our Technology means the software, code, proprietary methods, technology and systems embodied by Benepet® products, licensed software, documentation, and Support Services.
1.6 Support Services means the technical and customer support services that Benepet® may offer from time to time to assist you with your use of Benepet® Product(s) and includes any information and materials we may provide in connection with these support services or make available in any printed and/or electronic documentation (including, without limitation, this EULA) included with Benepet® Product(s) or provided, or made available, by Benepet® in connection with the use of Benepet® Products. The most current description of Benepet® Products posted at www.benepet.com supersedes and replaces prior version(s).
1.7 Third Party Items means products, software, data or other items provided or licensed to us by our suppliers, partners, or other third parties.
2.1. Benepet® grants to User a limited, non-exclusive, non-transferable license to use the Software and Data exclusively with the Product, and with the device on which this License appears.
2.2. Except for the License granted herein, Benepet® grants no express or implied right under any patent, copyright, mask work right, trademark, know how or other intellectual property rights. The Licensee shall not obtain any rights belong to Benepet® property, or any part thereof, by implication, estoppel or otherwise. Title to and full ownership of any trade secrets and other intellectual property rights related to the Product and components thereof shall remain with Benepet® and, if applicable, its suppliers. For clarification, Licensee agrees that the source code for the Software is a trade secret of Benepet® and only Benepet® shall have the right to alter, maintain, enhance or otherwise modify the Software.
2.3. Without limiting the foregoing or any other terms in this agreement, USER shall, and shall ensure that any Authorized Users:
(a)not deface or remove any copyright or proprietary notices;
(b)not copy (save and except for normal back up and disaster recovery purposes provided such copy shall include Benepet®’s copyright and any other proprietary notices indicated on the Software and Data), export or produce any derivative works from the Product, or any part thereof, not network the Product without Benepet®’s prior written approval, or make it available for concurrent use;
(c) distribute, sell, lease, rent, sublicense, assign, export, or transfer in any other manner any Benepet® Product Software or any other portion of Benepet® Product(s) or otherwise use Benepet® Product(s) for the benefit of a third party;
(d) Interfere in any manner with the operation of Benepet® Product(s), or the communications, network, systems, software and data used to operate and provide Benepet® Product(s);
(e)not use the Product(s) without the authorized key, if provided with the Product, or attempt to develop or develop any means or technology which would enable Licensee to bypass the use of the key to operate the Product;
(f) Modify, copy or make derivative works of any part of the Benepet® Product Software or any other component of Benepet® Product(s), or reverse engineer, disassemble, decompile, or translate any components of Benepet® Product(s), or otherwise attempt to derive the source code of any components of Benepet® Product(s);
(g) Create Internet "links" to or from the Benepet® website, or "frame" or "mirror" any content which forms part of the Benepet® website; or
(h) Otherwise use any portion of Benepet® Product(s) in any manner that exceeds the scope of the limited license right granted above.
3 LIMITATIONS ON USE
Benepet® Products do not constitute veterinary medical services or any other licensed healthcare service(s). The information embodied in the Software, documentation, and the website is not medical advice. The user acknowledges that the Software, documentation, or website does not and should not be construed to provide health-related or medical advice, or clinical decision support, or to provide, support or replace any diagnosis, recommendation, advice, treatment or decision by an appropriately trained and licensed physician, or to create a patient-physician relationship. The products are solely contingent upon exclusive use of same by a licensed veterinarian or Certified Veterinary Technician trained in the proper and safe use of the Benepet® Product(s) and under the supervision of a licensed veterinarian. Any other use is strictly prohibited under the terms of this license.
The user is not authorized to include, or use in any manner, or to provide to any third party for such inclusion or use, any test results derived from the Benepet® Product and/or the Benepet® Product Software for the purpose of seeking or obtaining any regulatory approval from any governmental or regulatory agency of any diagnostic or therapeutic claim, or medical device, pharmaceutical or other therapeutic or diagnostic product, without the expressed written consent of Benepet®. Without derogating from the generality of the foregoing, the inclusion by you or any third party of any results of any type, derived through the use of the Benepet® Product and/or the Benepet® Product Software, in any regulatory filing for the purpose of supporting, or obtaining any such approval, without the prior written consent of Benepet® is expressly prohibited. This limitation refers solely to the seeking or obtaining of diagnostic or therapeutic claims and nothing in this agreement, including this limitation on use, is intended, in any manner, to restrict the reporting of information regarding the Benepet® product in accordance with the reporting regulations of any governmental or regulatory agency.
Benepet®, Benepet® Products and all trademarks and logos that appear on or in connection with the Licensed Software and/or the Licensed Product(s), as may be amended from time to time, are, unless stated otherwise, trademarks of Benepet®. No right, license, or interest to such trademarks are generated or granted hereunder other than the limited right to use provided herein, and you agree that you shall assert no such right, license, or interest with respect to such trademarks. You may not remove or destroy any copyright, trademark, logo or other proprietary marking or legend placed on or contained in the Licensed Software or a Licensed Product.
5. LIMITATION OF LIABILITY
(A) IN NO EVENT SHALL BENEPET® BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE AND/OR THE LICENSED PRODUCT AND/OR THE THIRD PARTY PRODUCT(S), OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES BY BENEPET®, EVEN IF BENEPET® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CONSEQUENTIAL DAMAGES. THE FOREGOING DISCLAIMER OF CONSEQUENTIAL DAMAGES SHALL BE APPLICABLE REGARDLESS OF WHETHER THE ACTION GIVING RISE TO SUCH DAMAGES IS IN TORT, CONTRACT, STRICT PRODUCTS LIABILITY, OR OTHERWISE.
(B)IN ORDER TO BE ENTITLED TO INDEMNIFICATION HEREUNDER IN CONNECTION WITH AN INFRINGEMENT CLAIM, YOU MUST ( i) NOTIFY BENEPET® IN WRITING PROMPTLY UPON BECOMING AWARE OF AN INFRINGEMENT CLAIM OR THE POSSIBILITY THEREOF, (ii) GRANT BENEPET® SOLE CONTROL OF THE SETTLEMENT, COMPROMISE, NEGOTIATION AND DEFENSE OF ANY SUCH ACTION, AND (iii) PROVIDE BENEPET® WITH ALL INFORMATION RELATED TO THE ACTION THAT IS REASONABLY REQUESTED BY BENEPET®. NOTWITHSTANDING THE FOREGOING, BENEPET® SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO ANY INFRINGEMENT CLAIM TO THE EXTENT ARISING FROM YOUR USE OF THE LICENSED PRODUCT AND/OR LICENSED SOFTWARE IN CONJUNCTION WITH OTHER HARDWARE OR SOFTWARE WHERE USE WITH SUCH OTHER HARDWARE OR SOFTWARE GAVE RISE TO THE INFRINGEMENT CLAIM.
[C]THE USER AGREES THAT TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, BENEPET® WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF BENEPET® PRODUCTS, SUPPORT SERVICES OR THE WEBSITE, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF BENEPET® PRODUCTS OR SUPPORT SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE PRODUCT(S) OR SUPPORT SERVICES. THE AGGREGATE LIABILITY OF BENEPET® TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO BENEPET® PRODUCTS, SUPPORT SERVICES OR THE WEBSITE IS LIMITED TO THE LESSER OF (I) THE AMOUNT OF FEES ACTUALLY PAID BY YOU FOR USE OF BENEPET® PRODUCTS OR (II) ONE HUNDRED DOLLARS (U.S. $100.00). Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.
Without prejudice to any other rights, Benepet® may terminate this EULA or your rights under this EULA at any time if you fail to comply with the terms and conditions of this EULA. Upon termination of your rights under this EULA for any reason, or upon termination of the EULA itself, you must destroy all copies of the software product and all of its component parts in your possession (including all component parts, the media and printed materials, any prior versions, and this EULA). The terms of this paragraph shall survive any termination of this EULA.
The user may only transfer or assign the rights and obligations hereunder together with the Benepet® Product or Third Party Product as a whole, without retaining any rights. The user may not assign or transfer this Agreement or any of the rights or obligations under this Agreement without the prior written consent of Benepet®.
If any provision of this Agreement is for any reason held to be illegal or unenforceable, such provision will be deemed separable from the remaining provisions of this Agreement and will in no way affect or impair the validity or enforceability of the remaining provisions of this Agreement.
9. NO WAIVER
Any failure or delay in enforcing an obligation or exercising a right or remedy is not a waiver of that obligation, right or remedy. Any waiver of a breach of a term is not a waiver of a breach of any other term in the Agreement. Any waiver of a particular obligation in one circumstance does not prevent a party from subsequently requiring compliance with the obligation on other occasions. A waiver is effective only when it is specific, irrevocable and in writing.
10. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed and construed in accordance with the laws of Taiwan, and the Taipei District Court shall be the court of competent jurisdiction for the first instance.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of Benepet® and the user with respect to the subject matter hereof and supersedes any and all prior negotiations and agreements between Benepet® and the user. This Agreement may be amended by Benepet® from time to time. By continuing to use the Licensed Application, the user agrees to be bound by such amendments. There are no other courses of dealing, understanding, agreements, representations or warranties, written or oral, except as set forth herein.
Note: Should you have any questions concerning this License Agreement, or if you desire to contact Benepet® for any reason, please use the contact information below:
Benepet Co., Ltd.
68 Nanjing E. Rd., Sec. 3
Taipei, Taiwan (R.O.C.)
Tel: +886 (27) 708-3899
Fax: +886 (22) 517-9981
This EULA is dated July 16, 2018.