END USER LICENSE AGREEMENT
This End User License Agreement (this “Agreement”) is a legal agreement between you (“you” or “Licensee”) and Lunit Inc. (“Lunit”), and shall apply to each Lunit’s software licensed to you and/or supported by Lunit herein.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN DO NOT ACCESS OR USE THE LICENSED SOFTWARE, AND CONTACT LUNIT AS FURTHER DESCRIBED IN THIS AGREEMENT WITHIN THIRTY DAYS AFTER INSTALLATION OR ACTIVATION OF THE LICENSED SOFTWARE. INSTALLING, DOWNLOADING, COPYING, ACCESSING, ACCEPTING OR USING THE LICENSED SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU UNDERSTAND THEM, AND YOU AGREE TO BE LEGALLY BOUND BY THEM.
DEFINITIONS
The following terms, when used in this Agreement, shall have the meanings set forth herein:
“Confidential Information” has the meaning given to it in Section 9.
“Documentation” shall mean the user manuals and user documentation accompanying, or provided by Lunit regarding or for use in connection with the Licensed Software.
“Licensed Software” shall mean the software owned, manufactured, sold, licensed to or by Lunit, for which you are granted a license to use, in object code format; the Documentation, and all other corresponding Lunit materials provided, also if applicable, including Updates. Except as otherwise limited by the terms of this Agreement, “Licensed Software” shall be deemed to include the Licensed Software licensed directly and/or maintained under the particular Sales Agreement; provided, however, if hardware or third-party software is not licensed or purchased from Lunit, Licensee is responsible for obtaining, maintaining, and servicing such (and compatible hardware within which the Licensed Software components can be installed and operated).
“Sales Agreement” shall mean any sales agreement entered into by and between you and Lunit or its authorized distributor, or quotation issued by Lunit or its authorization distributor and purchase order issued by Licensee, in connection with purchase and use of the Licensed Software.
“Updates” shall mean any subsequent release of the Licensed Software that Lunit makes generally available from time to time to its customers that are within their limited warranty period or that are otherwise paying for extended maintenance coverage. Updates shall not include any upgrades, releases, enhancements or future products that Lunit may license separately.
1. LICENSE GRANT.
1.1 Subject to the terms of this Agreement, Lunit grants you a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Licensed Software made available by Lunit solely in accordance with the terms of this Agreement, the Documentation and the Sales Agreement. Each license granted herein is authorized for one (1) user to access the Licensed Software at any time. Your subsidiaries, affiliated organizations and third-parties cannot use the Licensed Software without additional licensing considerations and/or the prior written consent of Lunit made part of a valid Sales Agreement. If such consent is provided, the Licensed Software must be used in compliance with this Agreement and the Sales Agreement.
1.2 General Restrictions. You must use the Licensed Software solely for the purposes in accordance with this Agreement and the Documentation. Except as otherwise specifically permitted under this Agreement and to the extent permitted by applicable law, you shall not (a) use, copy, modify, create derivative works of, distribute, sell, resell, assign, pledge, license, sublicense, lease, loan, rent, timeshare, provide access to, deliver or otherwise transfer the Licensed Software, nor permit any third party to do any of the foregoing, (b) derive or attempt to derive the source code of all or any portion of the Licensed Software by any means, (c) permit any third party to derive or attempt to derive such source code, or (d) reverse engineer, decompile, disassemble, decrypt or translate the Licensed Software(including without limitation, source code or algorithm) or any part thereof.
1.3 Proprietary Notices. You may not alter, obscure or remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of any Licensed Software or Documentation (including those of third parties).
1.4 Prohibited Interference. You shall not (a) create Internet “links” to or from the Licensed Software, or “frame” or “mirror” any content forming part of the Licensed Software, other than on your own intranets, (b) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, (c) interfere with or disrupt the integrity or performance of the Licensed Software or the data contained therein, or (d) attempt to gain unauthorized access to the Licensed Software or its related systems or networks.
1.5 Prohibited Uses. You shall not use the Licensed Software: (a) in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement; or (b) to send or store infringing, obscene, pornographic, harmful, threatening, defamatory, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights. You shall not move the Licensed Software from the location noted in the Sales Agreement without the prior written consent of Lunit.
2. OWNERSHIP.
The Licensed Software is licensed to you in accordance with this Agreement and in no way sold to you. Lunit and/or its licensors own and hold all right, title and interest, including but not limited to copyright, patent, trade secret, and all other intellectual and industrial property rights, in and to the Licensed Software, the Documentation, and any changes, modifications or corrections thereto. You do not acquire any other rights, express or implied, in the Licensed Software other than those rights expressly granted under this Agreement. All rights not specifically granted to you herein are retained by Lunit and/or its licensors.
3. TERM AND TERMINATION.
3.1 Term. This Agreement shall be effective upon the earlier of (a) your acceptance of this Agreement (if applicable), or (b) your installation and activation of the Licensed Software or use of a product on which the Licensed Software is pre-loaded, and shall continue until terminated in accordance with Section 3.2. This Agreement terminates immediately upon expiration or termination of the Sales Agreement.
3.2 Termination for Cause. Your rights under this Agreement will automatically terminate if you fail to comply with any term of this Agreement.
3.3 Effect of Termination. Upon termination of this Agreement for any reason, you must immediately cease all use of the Licensed Software and destroy all originals and any copies of the Licensed Software, Documentation, and any and all other material provided by Lunit. The licenses granted under Section 1 shall terminate immediately upon the termination of this Agreement. Lunit’s failure to insist upon or enforce your strict compliance with this Agreement will not constitute a waiver of any rights.
3.4 Survival. The following provisions will survive the termination of this Agreement: Sections 1 (other than Section 1.1), 2, 3.3, 3.4, 5.4, 6, 7, 8, 9, 10, 11 and 12.
4. LICENSED SOFTWARE UPDATES.
Lunit may from time-to-time make new or enhanced software versions, including but not limited to the Updates, together with any “bug fixes” that offer solutions to known software anomalies and work-arounds to resolve known issues and provide for proper functionality of the purchased software, available to Licensee. Such new versions and Updates may be provided to Licensee at no additional charge in accordance with the terms and conditions of the Sales Agreement on a license exchange basis. Licensee agrees and acknowledges that Lunit is under no obligation to develop or update any future programs or functionality.
5. LICENSEE RESPONSIBILITIES.
5.1 Licensee shall operate the Licensed Software in accordance with the operation guidelines outlined in the Documentation, and shall implement the required ongoing the Licensed Software housekeeping and backup procedures as recommended in the Documentation. Licensee will use the Licensed Software only as permitted by any applicable law, including without limitation laws, regulations or restrictions regarding the import, export or resale of data or software, medical device regulations or local laws.
5.2 Licensee shall be responsible for complying with its respective obligations under the applicable data protections laws governing personal data. Subject to the terms and conditions of this Agreement, Licensee shall take steps it deems necessary to comply with its obligations set forth in this Section 5.2, provided, however, that Licensee shall use commercially reasonable efforts to minimize the impact of such steps on Lunit. Licensee shall fully cooperate with and reasonably assist the Lunit with responding to any data protection regulatory authority, including, without limitation, the relevant data protection authority, or any third party to the extent necessary, in Lunit's reasonable discretion, to comply with the applicable data protection laws.
5.3 Licensee agrees it is responsible for ensuring that any usage by its employees, agents, end-users and any authorized users is in accordance with the terms and conditions of this Agreement.
5.4 Licensee shall immediately notify Lunit if there are any medical-related reportable incidents (including but not limited to possible patient injury or death), and/or such incidents at the end-user facility, as defined by the prevailing governmental, federal and local regulations; in such case, since it is the manufacturer’s or their designated representative’s responsibility to notify the regulatory authorities, Licensee shall notify Lunit of any knowledge of such incidents immediately. Such requirement to so notify Lunit of such incidents shall survive the termination of this Agreement and/or any other Sales Agreement.
5.5 Licensee understands and agrees that Lunit bears no responsibility for all claims arising from non-Lunit, third party hardware, software and accessories.
6. DATA COLLECTION.
The Licensed Software may collect information about you and your use of the Licensed Software, including but not limited to data relating to bug or technical error of the Licensed Software, and send that to Lunit. Lunit may store, analyze and use this information to provide services and improve Lunit’s products and services (including but not limited to, Lunit’s AI algorithm training). Also, Lunit’s authorized partners may access data relating to bug or technical error of the Licensed Software and/or data which is necessary for operation of the Licensed Software in the performance of any services and supports in accordance with applicable Sales Agreement and use the foregoing data to improve its products and services. Lunit and/or applicable Lunit’s authorized partners shall be responsible for complying with its respective obligations under the applicable data protection laws governing personal data. You can learn more about Lunit’s Privacy Policy at https://insight.lunit.io/privacy.
7. NO WARRANTY.
THE LICENSED SOFTWARE, DOCUMENTATION, AND ANY AND ALL OTHER MATERIAL PROVIDED BY LUNIT TO YOU UNDER THIS AGREEMENT ARE PROVIDED TO YOU “AS IS,” WITHOUT WARRANTY OF ANY KIND. LUNIT AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL WARRANTIES THAT ARE EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO THE LICENSED SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR USE OR PURPOSE. NEITHER LUNIT NOR ITS LICENSORS WARRANT THAT THE LICENSED SOFTWARE WILL FUNCTION WITHOUT INTERRUPTION OR THAT IT IS ERROR-FREE. YOU BEAR THE ENTIRE RISK AS TO LOST DATA OR CONTENT. LUNIT AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL RESPONSIBILITY FOR HOSTING OR BACKING UP YOUR DATA OR CONTENT. YOU BEAR THE ENTIRE RISK AS TO THE OPERATION AND QUALITY OF THE LICENSED SOFTWARE. YOU ACKNOWLEDGE THAT CERTAIN HARDWARE OR SOFTWARE IS PROVIDED BY THIRD PARTY VENDORS AND THAT LUNIT MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED WITH RESPECT TO SUCH HARDWARE OR SOFTWARE. YOU HEREBY ACKNOWLEDGE THAT THIS DISCLAIMER OF WARRANTY IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT LUNIT WOULD NOT ENTER INTO THIS AGREEMENT WITH YOU OR LICENSE YOU THE LICENSED SOFTWARE WITHOUT SUCH DISCLAIMER. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU, IN WHICH CASE THE DURATION OF ANY SUCH IMPLIED WARRANTIES IS LIMITED TO 30 DAYS FROM THE DATE THE LICENSED SOFTWARE IS INSTALLED OR FIRST ACCESSED.
8. LIMITATION OF LIABILITY.
IN NO EVENT WILL LUNIT OR ITS LICENSORS BE LIABLE TO YOU, OR TO ANY PARTY CLAIMING THROUGH OR UNDER YOU, FOR ANY LOSS OF PROFITS OR DATA, OR FOR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND, ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR YOUR USE OF, OR THE RESULTS OBTAINED FROM, THE LICENSED SOFTWARE, DOCUMENTATION, OR ANY OTHER MATERIAL PROVIDED BY LUNIT TO YOU UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE AMOUNTS PAYABLE BY LUNIT OR ITS LICENSORS OR SUPPLIERS TO YOU SHALL NOT EXCEED THE AGGREGATE AMOUNT YOU PAID FOR THE LICENSED SOFTWARE IN THE PRECEEDING CALENDAR QUARTER, PRORATED IF NECESSARY, PRIOR TO THE EVENT RISING SUCH TO THE LIABILITY IN QUESTION. YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING LIMITATIONS ON LIABILITY ARE A FUNDAMENTAL PART OF THE BASIS OF LUNIT’S BARGAIN HEREUNDER, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THE LAWS OF CERTAIN JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF LIABILITY, SO THE ABOVE PROVISION MAY NOT APPLY TO YOU.
9. CONFIDENTIAL INFORMATION.
You hereby acknowledge and agree that the Licensed Software, the Documentation and any and all other material provided by Lunit are the confidential information of Lunit (collectively, the “Confidential Information”). You will hold the Confidential Information in strict confidence, and use reasonable precautions to protect such Confidential Information. You shall not use or reproduce the Confidential Information for any purpose except as specifically permitted under this Agreement. You shall not disclose any of the Confidential Information or any information derived therefrom to third parties. You will notify Lunit in writing immediately if you become aware of or suspect that the security of the Confidential Information has or may be compromised in any way. You agree that you will comply with the foregoing obligations at all times and notwithstanding the termination of this Agreement.
10. CHANGES.
Lunit is constantly evolving its products. Lunit may change, discontinue or disable access to the Licensed Software or impose new or additional rules, policies, terms, or conditions on your use of the Licensed Software at any time, without direct notice to you. Material changes to these terms will be posted on Lunit’s website and/or emailed to you. You will not be charged fees for changes to the Licensed Software without notice. Fees may apply for additional services and products offered by Lunit and others, including, but not limited to, services that integrate with the Licensed Software or extend the functionality of the Licensed Software. If you want to purchase these services, such fees shall apply. Lunit may make changes to this Agreement by posting the changed terms to Lunit’s website and/or emailing such changes terms to you. YOUR CONTINUED USE OF THE LICENSED SOFTWARE FOLLOWING LUNIT’S POSTING AND/OR EMAILING OF ANY CHANGED TERMS WILL CONSTITUTE YOUR ACCEPTANCE OF THE CHANGED TERMS.
11. GOVERNING LAW; ARBITRATION.
11.1 Arbitration.
(a) You agree that in the event of any dispute between you and Lunit, you will first contact Lunit and make a good faith effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
(b) The parties both agree that any dispute or claim relating in any way to the Licensed Software or this Agreement that cannot be resolved via the informal dispute resolution process above will be resolved by binding arbitration, rather than in court, except that (i) you may assert claims in small claims court if your claims qualify, (ii) Lunit may seek injunctive relief from any court with jurisdiction to preliminarily enjoin your use of the Licensed Software in any manner that Lunit alleges in good faith violates this Agreement, and (iii) Lunit may bring suit in court to enjoin infringement or other misuse of intellectual property rights. Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You and Lunit are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of this Agreement.
(c) To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Lunit Inc., 5th floor, 374 Gangnam-daero, Gangnam-gu, Seoul, Republic of Korea with an electronic copy (which will not constitute notice) to insight@lunit.io. If Lunit seeks to arbitrate a dispute Lunit has with you, Lunit will send a letter or email making the request and describing its claim using one of the contact methods you have provided or, if none is provided, at a location or address disclosed in public or third party records. The arbitration will be conducted by the International Chamber of Commerce (ICC) under its rules, including the Arbitration Rules of ICC. The ICC’s rules are available at https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/. Payment of all filing, administration and arbitrator fees will be governed by the ICC’s rules. If you are an individual and have not accessed the Licensed Software on behalf of an entity, Lunit will reimburse those fees for claims totaling less than $10,000, unless the arbitrator determines the claims are frivolous, and Lunit will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration proceeding shall at all times be held in English. If you reside in Europe, the seat of arbitration shall be London, England. If you reside in the Americas, the seat of arbitration shall be New York City, New York. If you reside anywhere else, the seat of arbitration shall be Singapore.
(d) The parties each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Unless both parties agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial.
11.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice of laws principles that would require the application of the laws of a different country or state.
12. GENERAL.
12.1 Irreparable Harm and Equitable Remedies. You acknowledge that your breach of this Agreement will cause irreparable harm to Lunit for which monetary relief would be insufficient, and you hereby agree that Lunit will be entitled to seek injunctive relief as well as such further relief as may be granted by a court of competent jurisdiction. Lunit may also take any legal and technical remedies to prevent violation of and/or to enforce this EULA, including, but not limited to, immediate termination of your use of the Licensed Software, if Lunit believes in its sole discretion that you are violating or intend to violate this EULA. These remedies are in addition to any other remedies Lunit may have at law, in equity or under contract.
12.2 Independent Contractors. The parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. Neither party (nor any agent or employee of that party) is the representative of the other party for any purpose and neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.
12.3 Assignment. Neither this Agreement nor any rights or obligations under this Agreement may be assigned or delegated by you, by operation of law or otherwise, without the prior written consent of Lunit, which consent may be granted or withheld in Lunit’s sole and absolute discretion. Any attempted or purported assignment or delegation by you in violation of the previous sentence will be null and void and without effect.
12.4 Notices. All notices, requests and other communications under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given, at the address set forth herein or provided as part of the license order process. If mailed, any such notice will be considered to have been given five business days after it was mailed, as evidenced by the postmark. If delivered by hand, any such notice will be considered to have been given when received by the party to whom notice is given, as evidenced by written and dated receipt of the receiving party. Either party may change its mailing address by notice as provided by this Section.
12.5 Severability. If any provision of this Agreement will be held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision or portion thereof affected will be construed so as to be enforceable to the maximum extent permissible by law.
12.6 No Waiver. All waivers must be in writing. Any waiver of either party to enforce a provision of this Agreement on one occasion will not be deemed a waiver of any other provision or such provision on any other occasion.
12.7 Amendment. This Agreement may only be amended by a written document signed by both parties. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between them.
12.8 US Government. If you are a branch or agency of the United States Government or obtaining the Licensed Software pursuant to a United States Government contract, then the following provision applies. The Licensed Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Licensed Software with only those rights set forth therein.
13. CONTACT INFORMATION
If you have any questions about this Agreement, or if you want to contact Lunit for any reason, please direct all correspondence to:
email us at: service@lunit.io
Last Revised: 2024.01. 16. (v10)