Open Recon Terms of Use

1. Praemble

SIEMENS HEALTHINEERS is a leading medical technology company that provides innovative products and services for healthcare professionals. DEVELOPER intends to program new reconstruction CONTAINER FILES.
SIEMENS HEALTHINEERS is prepared to give DEVELOPER access to the OPEN RECON SDK to enable DEVELOPER to program new reconstruction CONTAINER FILES under the precondition that he enters into an Agreement regarding the use of OPEN RECON by accepting the following Open Recon Terms of Use.
SIEMENS HEATLHINEERS and the DEVELOPER hereinafter referred to individually as “PARTY” or collectilvely as “PARTIES”.

2. Definitions

Whenever the following terms are used in this Agreement, they shall have the following meaning:
“AFFILIATE” shall mean a corporation, company, or other entity, now or hereafter, directly or indirectly, owned or controlled by, or owning or controlling, or under common control with SIEMENS HEALTHINEERS. For purposes of this definition “control” of a corporation, company or other entity shall mean to have, directly or indirectly, the power to direct or cause the direction of the management and policies of a corporation, company, or other entity, whether (i) through the ownership of voting securities entitling to the right to elect or appoint, directly or indirectly, the majority of the board of directors, or a similar managing authority, (ii) by contract or (iii) otherwise.

“COMMERCIALIZATION” means DEVELOPER markets and/or shares CONTAINER FILES or RECONSTRUCTION APPLICATION to a third party for receiving financial compensation in return.

“CONFIDENTIAL INFORMATION” means business, technical, scientific or other information regardless of its form which is marked “confidential”, “restricted” (or similar) or which is to be treated as confidential according to its content and/or the circumstances of its disclosure by SIEMENS HEALTHINEERS in connection with this Agreement. The Supportive tooling and the Documentation as part of the OPEN RECON SDK are confidential.

“CONTAINER FILES” are based on code and can include binary files, sourcecode and documentation (RECONSTRUCTION APPLICATION) that can be used via OPEN RECON to facilitate the reconstruction.

”OPEN RECON” is the interface which enables user of the SIEMENS HEALTHINEERS MR System to execute CONTAINER FILES for image reconstruction at SIEMENS HEALTHINEERS MR Systems.

“OPEN RECON LICENSE” means a license to enable execution of OPEN RECON functionality on SIEMENS HEALTHINEERS MR Systems.

“OPEN RECON SDK” means a proprietary software package from SIEMENS HEALTHINEERS provided under this Open Recon Terms of Use to enable the programming of new reconstruction CONTAINER FILES. The OPEN RECON SDK contains the following components: 1. Supportive tooling, 2. Documentation, 3. Example Code and 4. Example data.

“OTHER CODE” means code integrated in the CONTAINER FILES either by using own developed code or by using THIRD PARTY SOFTWARE.

“OTHER PERSONNEL” means subcontractors, freelancers, doctoral candidates, students and similar persons apart from the permanent employees of a PARTY.

“RECONSTRUCTION APPLICATION” means an algorithm either in compiled or uncompiled form for image reconstruction and/or postprocessing for SIEMENS HEALTHINEERS MR Systems. The DEVEVELOPER can generate own RECONSTRUCTION APPLICATION by using OPEN RECON SDK and/or OTHER CODE. The RECONSTRUCTION APPLICATION is the content that needs to be included into the CONTAINER FILES to be executed on SIEMENS HEALTHINEERS MR Systems with OPEN RECON.

“SIEMENS HEALTHINEERS MR System” means Siemens Healthineers Magnetic Resonance System.

“THIRDPARTY SOFTWARE” means software which has not been developed by or on behalf of DEVELOPER (e.g. open source software, freeware, commercial off the shelf software).

3. General

OPEN RECON SDK is provided to create CONTAINER FILES. A detailed knowledge of Magnetic Resonance (MR) physics and script based or C++ based programming is a prerequisite for using the OPEN RECON SDK.
For development CONTAINER FILES are used to allow flexibility in libraries with custom dependencies, while isolating RECONSTRUCTION APPLICATION from SIEMENS HEALTHINEERS MR Systems.
If CONTAINER FILES are planned to be tested at a SIEMENS HEALTHINEERS MR System, an OPEN RECON LICENSE must be installed at the corresponding SIEMENS HEALTHINEERS MR System. If no OPEN RECON LICENSE is available on the SIEMENS HEALTHINEERS MR System it can be ordered via sales contract after accepting these Open Recon Terms of Use. If there are additional Hardware or Software requirements needed to run CONTAINER FILES on SIEMENS HEALTHINEERS MR Systems, SIEMENS HEALTHINEERS assumes no responsibility that these requirements are met.

4. Property Rights, Confidentiality

4.1

DEVELOPER shall keep confidential as SIEMENS HEALTHINEERS CONFIDENTIAL INFORMATION the Supportive tooling, Documentation and additional information that is considered confidential according to the definition given under Article 2.

4.2

DEVELOPER shall use SIEMENS HEALTHINEERS´ CONFIDENTIAL INFORMATION solely for the purposes for which it was provided, shall keep it confidential and not disclose it except to those of its or its Affiliates’ employees and/or OTHER PERSONNEL who reasonably need to know such CONFIDENTIAL INFORMATION for the purposes for which it was provided and who are bound to confidentiality either by their employment agreement or otherwise in writing to an extent not less stringent than the obligations imposed under this Agreement.

4.3

These obligations shall not apply to CONFIDENTIAL INFORMATION which (i) was already known to DEVELOPER without any confidentiality obligation or (ii) is at the time of disclosure publicly available, or subsequently becomes publicly available through no breach of confidentiality obligations by DEVELOPER; (iii) DEVELOPER obtained from a third party without any confidentiality obligation provided such third party is not, to DEVELOPER’s knowledge, in breach of any confidentiality obligation relating to such information; (iv) DEVELOPER has developed independently from any CONFIDENTIAL INFORMATION, or (v) is required to be disclosed by a binding decision of a public body, a court order or mandatory law provided that, if not prohibited by law, written notice of such ruling or order is given without undue delay to SIEMENS HEALTHINEERS so as to give SIEMENS HEALTHINEERS an opportunity to intervene, and provided further that DEVELOPER uses reasonable efforts to obtain assurance that the CONFIDENTIAL INFORMATION will be treated confidentially. CONFIDENTIAL INFORMATION disclosed pursuant to such mandatory law, ruling or court order should be marked “confidential”. DEVELOPER shall bear the burden of proving the existence of the respective exception.

4.4

The CONFIDENTIAL INFORMATION and any copies made of it shall without further request be destroyed (or upon SIEMENS HEALTHINEERS’ request be returned ) after termination of this Agreement. This provision shall not apply to copies made as a matter of routine backups and copies of CONFIDENTIAL INFORMATION which must be stored by DEVELOPER under mandatory law, provided that such copies shall be subject to an indefinite confidentiality obligation according to the terms set forth herein until deleted. Section 5.6 remains unaffected. Upon request DEVELOPER shall confirm in writing that he has fulfilled its obligations under this Section.

4.5

DEVELOPER will impose the obligations of this Article 4 on its employees and OTHER PERSONNEL. DEVELOPER will ensure that publication by its employees and/or OTHER PERSONNEL is subject to SIEMENS HEALTHINEERS’ prior written consent.

5. Rights of Use; Obligations

5.1

SIEMENS HEALTHINEERS hereby grants to DEVELOPER for the term of this Agreement a nonexclusive nontransferable right to use the OPEN RECON SDK for the generation of CONTAINER FILES, to change the Example Code for the generation of CONTAINER FILES and to copy Example Code in altered or unaltered form to the extent necessary for noncommerical activities provided that these obligations are accepted by DEVELOPER.

5.2

DEVELOPER has the right to use the OPEN RECON SDK and the CONTAINER FILES for noncommerical purposes only and the OPEN RECON SDK must not be used for COMMERCIALIZATION of developed applications.

5.3

DEVELOPER may only make available CONTAINER FILES to research institutions. Distribution will be performed solely through the C²P Exchange App within MAGNETOM Research World in Teamplay under the applicable terms of use.

5.4

In case that DEVELOPER intends to commercialise their developed applications additional contracts with SIEMENS HEALTHINEERS are needed in advance.

5.5

DEVELOPER guarantees that a license clearing of RECONSTRUCTION APPLICATION has been done and documented before CONTAINER FILES will be distributed.

5.6

DEVELOPER accept the confidentiality level of the OPEN RECON SDK with regard to the Supportive tooling and Documentation and the copyright of SIEMENS HEALTHINEERS regarding its proprietary OPEN RECON SDK. DEVELOPER ensures to produce backup copies of the OPEN RECON SDK only for internal purpose to have a backup available. Upon termination of this Agreement or upon written request of SIEMENS HEALTHINEERS, DEVELOPER will delete or return the OPEN RECON SDK to SIEMENS HEALTHINEERS and will retain no copies or backups thereof. Upon request DEVELOPER shall confirm in writing that he has fulfilled its obligations under this Section.

5.7

Example Code and Example data can be handled as open source software.
The Example Code can be used under the following MIT license conditions, unless otherwise specified by SIEMENS HEALTHINEERS:

MIT License (MIT)

“Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.”

6. Updates and upgrades

SIEMENS HEALTHINEERS may at its own discretion make available to DEVELOPER OPEN RECON updates and/or OPEN RECON upgrades respectively OPEN RECON SDKupdates and/or OPEN RECON SDK upgrades. This Article 6 does not create any obligation for SIEMENS HEALTHINEERS to make available OPEN RECON updates and/or OPEN RECON upgrades to DEVELOPER.

7. Limitation of Intellectual Property Infringement liability

In addition to the MIT License conditions referred to in Section 5.7 the following applies:
SIEMENS HEALTHINEERS is not responsible for an infringement of any intellectual property rights due to:

(i) DEVELOPER’s failure to use the most current version of or a defect correction or patch supplied by SIEMENS HEALTHINEERS for OPEN RECON; or

(ii) the combination, combined operation, or combined use of OPEN RECON and SIEMENS HEALTHINEERS MR System in conjunction with any RECONSTRUCTION APPLICATION content created by DEVELOPER or with any THIRDPARTY SOFTWARE, equipment, materials, or products; or

(iii) an adjustment or configuration of OPEN RECON or SIEMENS HEALTHINEERS MR System not made by SIEMENS HEALTHINEERS. Notwithstanding any deviating and/or additional obligations expressly set forth in the Agreement, SIEMENS HEALTHINEERS will neither assume any additional obligations nor responsibility that the OPEN RECON SDK and/or the DEVELOPERS use of the OPEN RECON SDK comply with applicable law.

8. Warranty and Limitiation of Liability; Safety

In addition to the MIT License conditions referred to in Section 5.7 the following applies:

8.1

OPEN RECON SDK is provided “as is” without any warranty, i.e. any liability for defects whatsoever is expressly excluded.

8.2

When applying CONTAINER FILES, DEVELOPER shall observe the relevant protection and/or protective regulations. As far as the use of CONTAINER FILES is subject to notification and/or authorization, DEVELOPER shall undertake the necessary measures.

8.3

The application of CONTAINER FILES may cause impairment to humans. The use of CONTAINER FILES in connection with SIEMENS HEALTHINEERS MR Systems may affect the medical devise clearing of said system. Therefore, DEVELOPER has to ensure that the application of CONTAINER FILES on humans is in accordance with especially (but not limited to) the MDR (Medical Device Regulation (EU) 2017/745) concerning medical devices and the relevant national laws, in particular with the applicable regulations concerning clinical trials and clinical studies.

8.4

DEVELOPER will, in its sole responsibility, decide on the application of CONTAINER FILES for medical purposes and shall apply such CONTAINER FILES in its sole responsibility. All DICOM images created by running CONTAINER FILES on a SIEMENS HEALTHINEERS MR System developed with the OPEN RECON SDK under this Agreement will always be labeled “Not for diagnostic use”. SIEMENS HEALTHINEERS does not assume any liability for CONTAINER FILES or defects of SIEMENS HEALTHINEERS MR Systems resulting from the use of CONTAINER FILES. DEVELOPER is in particular responsible for the application of CONTAINER FILES within the performance limits of the respective SIEMENS HEALTHINEERS MR System. DEVELOPER shall indemnify and hold SIEMENS HEALTHINEERS harmless of any third party claims resulting from the use of the CONTAINER FILES.

8.5

The Liability of SIEMENS HEALTHINEERS shall be excluded, in particular any direct or indirect, special, consequential, or incidental damages, regardless of the form of action. This limitation of liability shall not apply in cases where liability is mandatory, e.g. in cases of willful misconduct or gross negligence.

9. MAGNETOM Community forum

SIEMENS HEALTHINEERS provides access to the MAGNETOM Community forum includng a managed OPEN RECON subsection. This subsection can be used by OPEN RECON users to have an exchange with others. When accessing the MAGNETOM Community forum via internet, DEVELOPER shall accept and comply withthese Open Recon Terms of Use contained on the website of the MAGNETOM Community forum. In addition, the further terms for the use of the MAGNETOM Community forum must be accepted by DEVELOPER.

10. Export Control, ReExport Prohibition

Both PARTIES shall comply with all applicable export control, customs and foreign trade regulations (“Foreign Trade Regulations”). DEVELOPER shall on request provide SIEMENS HEALTHINEERS without delay and in writing with all information and data which SIEMENS HEALTHINEERS requires in order to comply with Foreign Trade Regulations when exporting OPEN RECON and/or CONTAINER FILES. SIEMENS HEALTHINEERS shall not be obligated to fulfil this Agreement if such fulfilment is prevented by any impediments arising out of Foreign Trade Regulations requirements or any embargoes or other sanctions.

11. Term/Miscellaneous

11.1

This Agreement shall come into force upon signature by the PARTIES and shall be valid for twelve [12] months. It shall automatically be extended by periods of twelve [12] months each, unless notice (either by email or as described in Section 11.3) of termination is given at least one [1] month before the end of the respective period of validity. SIEMENS HEALTHINEERS has the right to terminate this Agreement at any time with immediate effect without reason.

11.2

This Agreement or any rights or obligations hereunder may not be assigned or otherwise transferred by either PARTY without the prior written consent of the other PARTY. However, SIEMENS HEALTHINEERS may assign this Agreement in whole or in part and/or its rights and obligations hereunder without the consent of DEVELOPER or extend this Agreement to an AFFILIATE of SIEMENS HEALTHINEERS or to a successor in interest of all or part of the business to which this Agreement relates.

11.3

This Agreement is concluded as soon as the DEVELOPER accepts these Open Recon Terms of Use by ticking the corresponding checkbox and thereby confirms that he has read and agrees to these Open Recon Terms of Use and will comply with it.
If the DEVELOPER withdraws his consent to these Open Recon Terms of Use by unchecking the corresponding checkbox, the DEVELOPER has two weeks to express his consent again by checking the corresponding checkbox. Otherwise, the DEVLOPER will be denied further access.

11.4

If any provisions of this Agreement should be held to be illegal, invalid or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The PARTIES shall substitute the illegal, invalid, or unenforceable provision by a legal, valid or enforceable one, approximating as closely as possible the original commercial intent of the PARTIES.

12. Arbitration

All disputes arising in connection with this Agreement, which cannot be amicably settled through involvement of the upper management, shall be finally settled in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”). The seat of arbitration shall be Munich, Germany. The language to be used in the arbitration proceeding shall be English. Any production of documents shall be limited to the documents on which the affected PARTY specifically relies in its submission.

13. Substantive Law

This Agreement shall be governed and construed in accordance with the substantive law applicable in Germany without reference to any other law. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 shall not be applicable to this Agreement.