GENERAL CONDITIONS OF SOFTWARE USE LICENSE FOR THE CUSTOMER
DicomServer® has not authorized any employee or agent to grant any license other than that stipulated herein or other rights with respect to any patent application, patent, copyright, trademark, trade secret, proprietary right or other proprietary right of DicomServer® or any of its affiliates or suppliers.
1. Definitions
The following terms used below shall have the meanings assigned to them in this section:
A. "Contract" means the sales/lease/supply agreement, on the basis of which DicomServer® grants a right and license to use software in the Products in favor of a customer on the basis of these General Software License Conditions for the Customer ("License").
B. "Software License" means the computer programs specified in the Agreement and to be operated on the Designated Hardware (as defined below) covering application, system and test functions, delivered on magnetic or fixed media, including supporting documentation necessary for the effective use of the computer programs. Testing functions are deemed to cover measurement to verify that the Products are in good working order but do not include other diagnostic functions such as troubleshooting and post-repair verification. This License does not extend to any software maintenance or servicing dispatched (whether separate or with the Product) to or located on the Customer's premises for the purpose of assisting DicomServer's employees or agents in the installation, testing, servicing and maintenance of the Product.
C. "Licensor" means DicomServer® or (its direct or indirect subsidiary, respectively) Best Equipos Médicos SA de CV., whichever is the owner of the intellectual property rights in and to the Licensed Software.
D. "Designated Hardware" means the DBOX server provided by DicomServer®, identified in the Agreement; the Licensed Software is designed to work with such hardware.
E. "Functional Specification" means the description of the functionality of a specific software, version, update, upgrade or option, as described by DicomServer®.
2. License
Upon commissioning of the Licensed Software and subject to compliance with the terms and conditions contained herein, the service provider (“Licensor”) grants to the customer (“Licensee”) a personal, non-transferable, non-exclusive right, without the right to sublicense, to use the Licensed Software in connection with the operation of the Designated Hardware.
Unless otherwise agreed between the parties, the Licensed Software will be installed by the Licensor or its authorized agents. Licensee agrees not to use the Licensed Software or arrange or permit its use until the Customer's acceptance certificate has been signed.
The Licensed Software may only be used on the Designated Hardware and at the Licensee's premises specified in the Agreement, except for mobile systems. A separate license is required for each Designated Hardware or central processing unit on which the Licensed Software is used.
Licensee shall only use the Licensed Software for the purpose(s) agreed upon and shall not rent, rent, rent electronically distribute, or share or commercialize it by interactive means or remote processing services, nor shall Licensee distribute or permit access to the Licensed Software in any manner other than as specified herein or in the Agreement.
Licensee acknowledges and agrees that the Licensed Software may include or incorporate technology owned or certified by reputable suppliers of Licensor.("Embedded Software") and that this License does not grant a license or imply a right under any patent, copyright, trade secret, or other intellectual property right of such Licensor's suppliers to use the Embedded Software. If so requested by the supplier(s), Licensee acknowledges and agrees to obtain a separate license from such supplier(s).
Licensee shall hold Licensor harmless from any liability arising from unauthorized use of the Licensed Software.
3. License Fee
The license fee will be specified in the Agreement either separately or as part of the price of the Products.
4. Reservations
(a) The Licensed Software, including copies thereof and any related Intellectual Property Rights, shall at all times remain the exclusive and sole property of the Licensor and its suppliers, even if the Licensed Software was developed by or on behalf of the Licensor specifically for Licensee's use.
(b) Licensee acknowledges that the Licensed Software is specific to the Designated Hardware configuration and expressly assumes the risks associated with any unauthorized use or attempted use of the Licensed Software on equipment other than the Designated Hardware.
(c) Licensee may copy or make a copy available in machine-readable format for backup/archival purposes solely as necessary to support Licensee's own use of the Licensed Software on the Designated Hardware. Licensee agrees not to copy or otherwise reproduce the Licensed Software or any portion thereof for any other purpose without Licensor's prior written permission. To the extent copying is authorized under this License, Licensor shall not, on any such copies or reproductions, delete, remove, or otherwise remove any copyright notice(s) of Licensor or its supplier(s) and other proprietary notice(s), if any, contained in or on the Licensed Software. Todas las restricciones en esta Licencia relativas al uso y divulgación del Software dado en Licencia serán de aplicación a tales reproducciones o copias de dicho Software.
(d) The Licensed Software (with the exception of documentation) must be used only in machine-readable format.
(e) Licensee shall not make available or permit the Licensed Software, or any portion thereof, to be used by anyone other than Licensor's technical support personnel or Licensee's officers, employees, and agents in the course of their business. Licensee agrees to require that each authorized person using the Licensed Software agree to the terms and conditions contained herein.
5. Modifications and Improvements
(a) Licensee may not modify, unlock, adapt, correct errors, translate, reverse engineer, decompile, disassemble, or otherwise translate binary or object code versions of the Licensed Software into human-perceivable forms, or otherwise dispose of or permit any such activities. Licensee may not create derivative works based on the Licensed Software or permit such works to be created without Licensor's prior written consent. Information necessary to achieve interoperability of the Licensed Software with other software may be obtained solely from Licensor under the then-current standard terms and conditions and at Licensor's sole discretion.
(b) If the Licensed Software is modified in any way by a third party, or combined with software or equipment not provided and/or approved in writing by Licensor, all warranties associated with the Licensed Software and Designated Hardware shall be void as of the date of such modification. If, notwithstanding, Licensor or its officers, employees or agents (i) plan or acquire enhancements to the Licensed Software, such enhancements shall be made known to Licensor, or (ii) suggest or recommend any enhancements to DicomServer®, such information shall become the property of Licensor and all rights and title to any inventions, product enhancements or modifications to the Licensed Software shall vest solely in Licensor.
(c) Licensor may periodically create and license updated and enhanced versions of the Licensed Software. Licensor may make such updated and enhanced versions of the Licensed Software available to Licensee under the then-current terms and conditions of Licensor's then-applicable software license.
(d) Licensor may offer maintenance of the Licensed Software to Licensee subject to Licensor's published rates and the terms and conditions of Licensor's then-applicable software maintenance/customer support agreement.
(e) The Licensor is not obligated to provide any assistance, support, maintenance or new versions, unless and to the extent the Licensor has explicitly agreed to do so in writing.
6. Term and Resolution
This License shall continue in effect while Licensee uses the Designated Hardware, except that Licensor may terminate this License immediately, without judicial action, in the event of a breach by Licensee of any term, covenant, or condition set forth herein, provided that Licensor gives Licensee written notice specifying the breach and Licensor has not cured such breach within fifteen (15) days of the date of such notice or such longer period as may be specified therein. Termination shall not relieve Licensee of any obligations incurred prior to such termination and shall not affect Licensor's rights accrued prior to such date. Licensee shall remove the Licensed Software from the Designated Hardware and return it, together with copies and related documentation, to Licensor at Licensee's expense immediately upon termination of this License. Upon such restitution, Licensee shall certify to Licensor that it does not retain or possess, directly or indirectly, in whole or in part, the Licensed Software or any part thereof.
7. Violation of Intellectual Property Rights. Compensation for Violation
If a third party makes or attempts to make a claim against Licensee alleging that the Licensed Software supplied hereunder infringes a right under a patent, utility model, industrial design, copyright, or trademark (collectively "Intellectual Property Rights"), Licensee will (a) promptly notify Licensor in writing of the claim and (b) provide Licensor with full and complete information, and if Licensor elects in writing to defend, compromise or negotiate the claim, Licensee will (i) give Licensor sole control over any defense or compromise and (ii) provide Licensor with all reasonable assistance if Licensor so desires.
In the event that (a) a final judgment of a court of competent jurisdiction declares that the claim is valid or (b) according to the Licensor, the Licensed Software infringes such claim, the Licensor, at its option, may either (a) secure the right of the Licensee to continue using the Licensed Software, or (b) replace or modify the Licensed Software so that it does not infringe such Intellectual Property Rights to the extent that such replacement or modification does not materially impair the overall functionality of the Licensed Software, or (c) if neither of the two previous alternatives is available on commercially reasonable terms to the Licensor, accept the reinstatement of the Licensed Software and, less a reasonable charge for the time in which the Licensee used the Licensed Software, reimburse the Licensee the royalty indicated in section 3 paid to the Licensor for the Licensed Software so restored. If the Licensor offers either of the options indicated above, the Licensor's indemnification obligation will have been fully satisfied with respect to that individual claim.
Licensor shall have no liability for any claim and Licensee shall reimburse all reasonable costs (including, without limitation, legal fees) in the event of any claim arising out of (i) any settlement or conciliation by Licensee without Licensor's prior written consent, (ii) Licensee's use of the Licensed Software where use of a later version commercially made available by Licensor would have avoided such infringement, or (iii) the use or combination of the Licensed Software with software or equipment not supplied by Licensor, in which case the absence of such combination would not have resulted in such infringement, (iv) use of the Licensed Software in a manner or for a purpose for which it was not designed as indicated in the applicable Product documentation, (v) Licensor's compliance with Licensee's particular design, specifications and/or directions, or (vi) Licensor's use of technical information supplied by Licensee, (vii) modifications that were not made or approved by Licensor, or (viii) the Licensee failed to comply with the Licensor's recommended routine hardware and software maintenance instructions and schedules and/or failed to implement mandatory (security) measures (OCC implementation). Furthermore, the Licensor shall not be liable for any claim where the claimed damages are based directly or indirectly on the quantity or value of products or services generated by means of the Products purchased under the quote or based on the amount of use of the Products, regardless of whether such claim alleges that the Products or their use infringe or contribute to the infringement of such claim.
The indemnities and obligations of Licensor in this Section 7 shall apply to third party software only to the extent that Licensor, pursuant to its license agreement or purchase agreement with such third party, is entitled to such indemnification for such breaches.
THE FOREGOING PROVISIONS INDICATE DicomServer's TOTAL LIABILITY FOR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE LICENSED SOFTWARE OR ANY PART THEREOF.
8. Warranty
THE PROVISIONS DEFINED HEREIN OR IN THE DICOMSERVER® WARRANTY DOCUMENT WITH RESPECT TO THE LICENSED SOFTWARE ARE THE ONLY WARRANTIES OFFERED BY DicomServer® WITH RESPECT TO THE LICENSED SOFTWARE AND THE OPERATION CONTEMPLATED BY THE QUOTATION OR SALES AGREEMENT ACCOMPANIED WITH THIS LICENSE.
DicomServer® provides specific warranties with respect to the Licensed Software as set forth in DicomServer's quotation or attached hereto. In the event that no warranty exists for the Licensed Software, DicomServer® warrants, for a period of ninety (90) days after the Licensed Software has been made available, that such software will substantially conform to the applicable functional specifications in effect at the date of the License and will be deliverable to Licensee. This Software License warranty is provided on the condition that, during the applicable warranty period (A) Licensor notifies Licensee of the non-compliance in writing within ten (10) days after it becomes known, providing full details of such non-compliance, (B) such non-compliance constitutes an error in the then-current version of the Licensed Software, and (C) Licensor is able to reproduce the non-compliance, then Licensor will, at its option and expense, attempt to correct the non-compliance, whether by replacement, alteration, or modification of the Licensed Software. If, after reasonable efforts, Licensor is unable to correct the non-compliance, Licensor may refund a reasonable portion of the purchase price for the Licensed Software, in which case the refund shall fully satisfy all claims of Licensee relating to the non-compliance.
All corrections will be made in accordance with Licensor's then-current correction procedures for the Licensed Software. Licensor does not guarantee the effectiveness of corrective efforts and does not represent or warrant that all errors can be corrected. The warranty period for Software so corrected shall not extend the warranty period stated above.
EXCEPT FOR THE WARRANTIES DESCRIBED IN THIS ARTICLE, DICOMSERVER® MAKES NO EXPRESS, IMPLIED, STATUTORY, OR OTHER WARRANTIES WITH RESPECT TO THE LICENSED SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, CUSTOM OF TRADE, OR PREVIOUSLY DELIVERED SAMPLES. DICOMSERVER® DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS PROVIDED IN THESE GENERAL SOFTWARE LICENSE CONDITIONS TO LICENSEE, NEITHER DICOMSERVER® NOR ANY PERSON OR ENTITY RETAINING RIGHTS IN THE LICENSED SOFTWARE OR THE INTELLECTUAL PROPERTY USED BY DICOMSERVER® IN SUCH SOFTWARE WILL BE LIABLE OR RESPONSIBLE FOR ANY DEFECTS, ERRORS, OMISSIONS, DEFICIENCIES, OR NON-COMPLIANCE IN THE LICENSED SOFTWARE. DICOMSERVER® MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PERFORMANCE OF THE SOFTWARE FUNCTIONS. DICOMSERVER® DOES NOT WARRANT THAT THE MEDIA USED WITH THE HARDWARE WILL BE COMPATIBLE WITH OR WORK WITH OTHER HARDWARE COMPONENTS.
DICOMSERVER® ALSO DOES NOT PROVIDE ANY WARRANTY REGARDING DEFECTS IN THE LICENSED SOFTWARE DUE TO ONE OR MORE OF THE REASONS STATED IN THE PREVIOUS ARTICLE 5.
BEYOND WHAT IS ESTABLISHED IN ARTICLE 8 ON DICOMSERVER'S OBLIGATIONS WITH RELATION TO WARRANTIES, THE SAME WILL NOT BE APPLICABLE FOR DEFECTS CAUSED IN THE LICENSED SOFTWARE BY AN EXTERNAL AGENT BEYOND ITS NATURE, INCLUDING BUT NOT LIMITED TO "HACKING" IN NO CASE WILL DICOMSERVER® BE LIABLE FOR INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS AND LOST REVENUES, LOSS OF MEDICAL DATA OR ANY OTHER DATA, INABILITY TO USE THE LICENSED SOFTWARE ARISING FROM THE USE OR OPERATION OF THE LICENSED SOFTWARE DUE TO TERMINATION OF THE CONTRACT, WARRANTY NEGLIGENCE, INDEMNITY, STRICT LIABILITY, EXTRACONTRACTUAL ETC.
All other warranties are hereby disclaimed. Licensor's exclusive remedy shall be the correction of any non-compliance or defects, or a partial refund of the license fee, which shall constitute full and final discharge of all of Licensor's liabilities with respect to the Licensed Software.
Licensor's warranty and service obligations set forth herein shall apply to third-party software only to the extent that Licensor is entitled to applicable warranty and service remedies under its license agreement or purchase agreement with such third party.
9. Dispensation
Without prejudice to the provisions of Sections 7 and 8 above, Licensee expressly releases all claims against Licensor and agrees to hold Licensor harmless from any and all liability arising from its use of the Licensed Software unless Licensee proves that such liability is solely attributable to Licensor's gross negligence or willful misconduct. Licensee indemnifies Licensee (and our agents and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known or unknown, suspected or unsuspected, disclosed and undisclosed, arising out of or in any way connected with the use of the Licensed Software.
10. Various Provisions
(a) This License constitutes the entire agreement between Licensor and Licensee with respect to the subject matter hereof, and Licensor shall not be liable to Licensee for any loss arising out of or in connection with any representation, agreement, or understanding made prior to the date of this License. A copy of this License shall be made available for inspection by Licensor during normal business hours at the place specified herein. (b) No modification of this License shall be valid unless made in writing and duly authorized by authorized representatives of both parties.
(c) The Licensor is not authorized to assign this License or any rights under it to any other person or entity. The Licensor may, however, delegate the exercise of rights and the performance of one or more of its obligations under this License to its affiliated companies and authorized agents, remaining responsible for ensuring that such obligations are performed in accordance with the provisions of this License.
(d) Licensor will license the software to a bona fide Customer of the Designated Hardware on which the Licensed Software runs (“Sub-Customer”) subject to Licensor’s then-current fees, terms, and conditions. Due to Licensor’s need to protect its private information, Licensor reserves the right not to license the Licensed Software to a Sub-Customer if such Sub-Customer is considered by Licensor to be its competitor. In the event of a sale of Designated Hardware and the Sub-Customer’s approval, Licensor will uninstall the Designated Hardware subject to Licensor’s then-current fees and reinstall it for the Sub-Customer, but only after such Sub-Customer has consented to Licensor’s software license terms.
(e) Respect to Embedded Software in which one or more suppliers retain rights, the provisions of this License shall also apply to the benefit of such supplier(s). Licensee agrees to indemnify Licensor against any claims brought by the Supplier(s) arising from a breach of this License.
Licensee acknowledges that some of this Licensed Software is of Mexican origin and agrees to comply with all international laws applicable to such Software, if applicable.
General Terms of Use
The general process for providing the DICOMSERVER® professional service provided by the Service Provider is described below:
To support imaging studies, DICOM communication is used between the medical study acquisition equipment located at the Client's facilities and the DBOX PACS server, provided by the Service Provider.
The DBOX PACS server securely connects to the Amazon AWS global server infrastructure, using the Client's internet service, and sends encrypted studies for secure processing.
The studies are then integrated into a customized database that offers specific tools for interpretation, consultation, and remote distribution. The studies can be accessed from internet-connected devices, such as cell phones, tablets, laptops, and desktop computers, using compatible web browsers (Google Chrome, Firefox, Microsoft Edge, among others). The entire process complies with strict IT security standards to prevent hacking, theft, or unauthorized copying, in compliance with regulations for the protection of sensitive patient data. The studies are stored in encrypted form in two availability modes:
1. Immediate Availability: For up to 3 months, studies are accessible for DICOM file viewing, generation and editing of interpretation reports, email distribution, and downloading of compressed files ready for standalone viewing.
2. Long-Term Availability: Studies are kept for up to five years, in compliance with the OFFICIAL MEXICAN STANDARD NOM-004-SSA3-2012 of the clinical record, and can be transferred to immediate availability at the request of the patient or the Client.
Access and Use of Tools in the Study Operation and Administration Web Portal
The general process for accessing and using the study administration web portal provided to the Client is described below:
Access to a user management portal, which includes access levels to specialized tools to facilitate specific activities of the imaging department staff, is granted in compliance with the following terms:
1. Account and Custom Link: A custom link is generated on the Service Provider's web platform, along with a primary administration account. User accounts with different access levels are linked to this account.
2. User Management: The Client may manage its users without limit on the number of accounts, which may correspond to:
• **Radiologist:** With access to tools for study interpretation and template management.
• **Referring Doctors:** For consultation of specifically assigned studies.
• **Radiologyst:** For inquiries, downloads, assigning referring physicians, distribution, and tracking the history of each study.
• **Reception:** With access to appointment management, report editing, patient and referring physician management, and study review and distribution.
• **Administrators:** Superuser with permissions to review user activities, add new users and modes, and view system statistics.
3. Registration and Administration Process of Studies:
• Receptionists will register the patient, assign an appointment, and record it in the RIS worklist for study acquisition. Upon completion of the acquisition, radiologists will be able to view, measure, and interpret the studies, generating the corresponding report.
• Completed reports can be shared electronically, either by email or text message (WhatsApp), and will be available for download in a compressed format that includes a DICOM viewer, study images, and the interpretation report.
• The assigned referring physicians will have access to review the studies. Receptionists will be able to modify general information through the platform; changes to diagnoses will be reserved for radiologists, while radiology technicians will be able to consult, distribute, download, or review the activity history for each study.
4. Responsibility for Internet Service: Internet service is the Client's responsibility, so the speed at which studies are registered on the platform will depend on the Client's internet contract. The recommended speed for an optimal experience on the DICOMSERVER® platform is at least 100 MB.
5. Local Network and DICOM Network Conditions: For optimal service performance, the Client must have an adequate LAN installation and a properly functioning internal DICOM network. If the necessary elements are not available, the service provider may offer the required installation, adaptation, or configuration for an additional fee.
6. Service Availability: By meeting the above conditions, the system will be available 24 hours a day, 7 days a week, with a high international availability of 99.97%.
7. Storage and Availability of Studies:
• Immediate Storage: Studies will be backed up without technical limits and will be immediately available for review, interpretation, editing, and distribution within the first three months.
• Long-Term Storage: From month 3 to year 5, studies will be in request mode and can be reactivated for immediate availability within a maximum of 24 hours.
• Temporary Backup on the DBOX PACS Server: Studies of all modalities connected to the DBOX PACS server will be temporarily backed up to ensure their preservation in case of internet service failure.
General Conditions for the Fulfillment of the Contract
To ensure compliance with the services established in the contract, BOTH PARTIES agree to observe the following conditions:
1. Provision of Hardware and Software by the Service Provider:
The service provider will provide the hardware and/or operating software, specifically the DBOX PACS server (the “SERVER”), intended for communication between the radiological study acquisition equipment and the DICOMSERVER® web platform, guaranteeing the secure transmission of encrypted data.
2. Acceptance of Billing for Additional Services:
The Client acknowledges that the Service Provider may issue an invoice for the storage of radiology studies transmitted through the DBOX PACS server, as well as for the use of telediagnosis tools, appointment management and delivery of results.
3. Use of Platform Feedback:
The service provider may use any feedback received regarding the use of the DICOMSERVER® platform, without any recognition or compensation to the Client.
4. Information and Operation Monitoring:
The service provider will provide general information on the number of studies submitted, acquisition modalities, and operational status of the DBOX PACS server and the communication of connected modalities, always complying with applicable privacy laws.
5. Installation, Support and Maintenance Services:
The service provider will provide installation, telephone support, and maintenance of the DBOX PACS server in accordance with the applicable terms of the contract. The costs of these services, including any refunds and recovery costs, will be borne by the Client.
6. Ownership and Use of the DBOX PACS Server:
If the Service Provider provides the DBOX PACS server, the Client agrees to sign the letter of responsibility and accepts that the server will be used exclusively for the DICOMSERVER® application. Its transfer, loan, sale, or delivery to third parties is not permitted. The server will remain the property of the Service Provider, and upon expiration or termination of the contract, or in the event of prolonged inactivity (45 days or more) on the DICOMSERVER® application, the Client will return the server within a maximum of 10 days. In the event of loss or damage due to misuse, a recovery fee will apply.
General Aspects
1. Installation and Training Fee:
This fee covers the activation, configuration, and training services provided by the Service Provider for use of the DICOMSERVER® platform. The amount of this fee is detailed in the contract terms.
2. Maintenance, Installation or Replacement Fee:
In cases of maintenance or installation, a quote will be applied, and in case of need to replace the DBOX PACS server, the Client will assume the cost, in accordance with the clauses of the contract, when the failures result from:
• Accidents, disasters, negligence, computer virus infections, electrical fluctuations (harmonics, voltage variations or drops), deficiencies in the physical grounding installation, misuse or abuse, failure to observe manual warnings, alterations or connection of incompatible devices.
• Incorrect use or use contrary to the instructions in the user manual.
• Alterations or repairs by personnel not authorized by the service provider.