Open Recon Terms of Use
1. Preamble
SIEMENS HEALTHINEERS is a leading medical technology company that provides inno-vative products and services for healthcare professionals. DEVELOPER intends to develop new reconstruction CONTAINER FILES.
SIEMENS HEALTHINEERS is prepared to give DEVELOPER access to the OPEN RECON SDK and to the MAGNETOM Community Forum to enable DEVELOPER to program new reconstruction CONTAINER FILES under the precondition that DEVELOPER 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 collectively 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 a PARTY. For purposes of this definition “control” of a corpora-tion, 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 (i) DEVELOPER markets to and/or shares with a third party CONTAINER FILES or RECONSTRUCTION APPLICATIONS in exchange for financial compensation; or (ii) DEVELOPER shares products that are based on CONTAINER FILES or RECONSTRUCTION APPLICATION after further development stages to a third party in exchange for financial compensation; or (iii) a third party does (i) or (ii) on behalf of or in any way involving DEVELOPER.
“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 dis-closure 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, source code and documentation (RECONSTRUCTION APPLICATION) that can be used via OPEN RECON to facilitate the reconstruction. CONTAINER FILES are prototypes which are not released and are not certified as commercially available products. All DICOM images cre-ated on a SIEMENS HEALTHINEERS MR System by running CONTAINER FILES developed with the OPEN RECON SDK under this Agreement are always labeled “Not for diagnostic use”.
”OPEN RECON” is the product image reconstruction and image processing interface of SIEMENS HEALTHINEERS MR System 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 func-tionality 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 uncom-piled 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 Reso-nance System.
“THIRD-PARTY SOFTWARE” means software which has not been developed by or on be-half of DEVELOPER (e.g. open sourceopen-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 installed and utilized for internal research and evaluation purposes on 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 request from sales (free of charge). 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 non-commerical 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 to develop new reconstruction CONTAINER FILES for non-commercial purposes only and the OPEN RECON SDK is not licensed for and must not be used for COMMERCIALIZATION of developed applications.
5.3
DEVELOPER may only make available CONTAINER FILES to research institutions and only for internal research and academic purpose. Distribution will be performed solely through the SIEMENS HEALTHINEERS C²P Exchange App within MAGNETOM Research World in Teamplay (or if C²P Exchange App within MAGNETOM Research World in Teamplay is not available in the specific case - via an alternative solution) under the applicable terms of use.
5.4
In case that DEVELOPER intends to COMMERCIALIZE any developed applications additional contracts with SIEMENS HEALTHINEERS are needed in advance
5.5
DEVELOPER guarantees that RECONSTRUCTION APPLICATION does not violate any relevant THIRD-PARTY intellectual property rights.
5.6
DEVELOPER accepts 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 shall 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 they have fulfilled their obligations under this Section.
5.7
Example Code and Example data provided by SIEMENS HEALTHINEERS can be handled as open-source software as stated herein.
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, but is not required to, make available to DEVELOPER OPEN RECON updates and/or OPEN RECON upgrades respectively OPEN RECON SDK updates 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 OPEN RECON SDK; or
(ii) the combination, combined operation, or combined use of OPEN RECON or OPEN RECON SDK 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, OPEN RECON SDK 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, OPEN RECON SDK and/or the DEVELOPERS use of the OPEN RECON or OPEN RECON SDK comply with applicable law.
DEVELOPER shall indemnify and hold SIEMENS HEALTHINEERS harmless of any third-party claims resulting from the infringement of any intellectual property rights due to the use of the CONTAINER FILES except the liability results solely from the use of OPEN RECON, OPEN RECON SDK or the SIEMENS HEALTHINEERS MR System either without the CONTAINER FILES.
8. Warranty and Limitation 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 OF ANY KIND, EXPRESS OR IMPLIED, 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 have negative impact to reconstruction results. CONTAINER FILES are not part of the medical device clearing of the SIEMENS HEALTHINEERS MR System. Therefore, DEVELOPER is solely responsible for ensuring 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 rele-vant 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 are always 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 from any 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 and exclusion of liability in Sections 8.1- 8.4 shall not apply to any liability for willful misconduct, fraud, personal injury or death and where liability cannot be limited by ap-plicable law.
9. MAGNETOM Community forum
9.1
SIEMENS HEALTHINEERS provides DEVELOPER with access to the MAGNETOM Community forum (via internet) including a managed OPEN RECON subsection. When accessing the MAGNETOM Community forum via internet, DEVELOPER must accept and comply with these 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.
9.2
The OPEN RECON subsection of the MAGNETOM Community forum can be used by OPEN RECON users to have an exchange with other users. In addition, SIEMENS HEALTHINEERS may, but is not obligated, to respond to posts or questions from users or DEVELOPER.
9.3
SIEMENS HEALTHINEERS assumes no responsibility or liability for support offered and provided in the MAGNETOM Community forum (especially but not limited to sup-port provided in the OPEN RECON subsection) including but not limited to the accuracy and/or usefulness of posts and statements made there.
9.4
The posts and statements, which were published by other users of the MAGNETOM Community forum, will not be checked for their correctness or usefulness by SIEMENS HEALTHINEERS in advance before such are published online.
9.5
DEVELOPER must check posts carefully for accuracy before publishing in the MAG-NETOM Community forum. It is expressly prohibited to intentionally create, share or otherwise distribute posts and content on the MAGNETOM Community forum which are unlawful, false or harmful.
9.6
DEVELOPER is solely responsible for its posts and liable for all direct and indirect damages resulting therefrom.
In addition, DEVELOPER must indemnify SIEMENS HEALTHINEERS against any third-party claims arising from such posts and statements made by DEVELOPER in any part of the MAGNETOM Community forum.
9.7
SIEMENS HEALTHINEERS reserves the right to exclude DEVELOPER from the forum if DEVELOPER does not act in accordance with this Article.
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 is effective as soon as the DEVELOPER accepts these Open Recon Terms of Use by ticking the corresponding checkbox and thereby confirms that DE-VELOPER has read and agrees to these Open Recon Terms of Use and will comply with all provisions.
11.2
This Agreement shall be valid for twelve [12] months.It shall automatically be extended without further notice by periods of twelve [12] months each, unless notice (either by email or as described in Section 11.3) of termination is given by DEVELOPER at least thirty [30] days before the end of the respective period of validity.
SIEMENS HEALTHINEERS has the right to terminate this Agreement at any time with immediate effect with or without cause upon written notice which may be sent by email to DEVELOPER at the address provided by DEVELOPER to gain access to OPEN RECON SDK and the MAGNETOM Community forum.
11.3
If the DEVELOPER withdraws consent to these Open Recon Terms of Use by uncheck-ing the corresponding checkbox, this is considered as a termination by the DEVEL-OPER with a notice period of thirty [30] days. This means that the DEVELOPER is bound to the Open Recon Terms of Use for thirty [30] days after unchecking the corre-sponding checkbox and has the same rights of use as before. After that, access and rights of use are withdrawn unless the DEVELOPER agrees to the Open Recon Terms of Use again beforehand.
11.4
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.
11.5
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.