3M LITTMANN DEVELOPER AGREEMENT
THIS 3M LITTMANN DEVELOPER AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU, THE LICENSEE, AND 3M COMPANY ("3M"). BY CLICKING THE "I ACCEPT" BUTTON AND/OR BY INSTALLING, COPYING, DOWNLOADING OR OTHERWISE USING THE SDK, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO LEGALLY BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM "LICENSEE", HEREIN REFERS TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MUST CLICK THE "I DECLINE" BUTTON AND YOU MAY NOT COPY, DOWNLOAD, INSTALL OR MAKE ANY USE OF THE SDK.
1.1 "SDK" means the 3M Littmann Model 3200 Software Development Kit (TS1000SDK) comprising the API, Documentation and Distributable Code provided to Licensee as set forth herein.
1.2 "3M Software" means certain software and firmware embedded within a 3M Littmann Model 3200 Stethoscope.
1.3 Device, including documentation, standards, protocols, code samples, specifications and instructions.
1.4 "Compatible 3M Device" means 3M branded stethoscopes that are certified by 3M to be compatible with the Software, including but not limited to the Littmann® Model 3200 stethoscope.
1.5 "API" means the application programming interface provided by 3M enabling interface, interoperation and communication between the 3M Software and the Licensee Application.
1.6 "Licensee Application" means software or services developed by Licensee using the SDK in accordance with this Agreement.
1.7 "Distributable Code" means any files, libraries, frameworks or other software code included with the SDK and expressly designated by 3M as Distributable Code.
1.8 "End User" means an individual, clinician or organization that purchases or licenses the Licensee Application for its own use.
2.0 Ownership of Intellectual Property.
Licensee agrees that the SDK, the 3M Software and the 3M Compatible Devices, all derivative works thereof and intellectual property embodied therein, are the sole and exclusive property of 3M and its licensors, and that Licensee has no right, title or interest therein other than as expressly provided in this Agreement.
3.0 License Grants.
3.1 SDK. During the Term, and subject to the terms of this agreement, 3M grants Licensee a limited, non-exclusive, personal, revocable, non-sublicensable, non-transferable license to use the SDK to develop Licensee Applications solely for use with the 3M Software and 3M Compatible Devices. Licensee may install the SDK on a reasonable number of Licensee computers and make a reasonable number of copies of the Documentation, provided that all such copies shall retain all copyright notices and other proprietary legends accompanying the original.
3.2 Distributable Code. Subject to the terms of this agreement, 3M grants Licensee a limited, non-exclusive, personal, revocable, non-sublicensable, non-transferable license to distribute, as object code only, Distributable Code to End Users solely for such End Users' use of a Licensee Application with a Compatible 3M Device. Licensee may make a reasonable number of copies of the Distributable Code as required for such distribution, provided that all such copies shall retain all copyright notices and other proprietary legends accompanying the original.
3.2.1 End User License Agreement ("AGREEMENT"). The Distributable code may include proprietary and/or open source code. Each Licensee Application containing Distributable Code, in whole or in part, and any modification or derivative work thereof, shall be distributed to End Users in accordance with any third party licenses accompanying such code. Licensor is solely responsible for implementing the requirements of such licenses, including but not limited to availability of source code and display of any required proprietary notices and attribution statements. In addition, Licensee shall distribute Distributable Code subject to a legally enforceable end user license agreement ("AGREEMENT") to which 3M is an intended third-party beneficiary that includes the following terms:
18.104.22.168 Prohibiting copying, distribution, disassembling, reverse engineering or creation of derivative works of the Distributable Code except as expressly authorized in any third-party license accompanying such code or as otherwise authorized by law;
22.214.171.124 Disclaiming, on behalf of 3M and its licensors, of all warranties, express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose, non-infringement, and any warranty arising out of a course of dealing;
126.96.36.199 Disclaiming, to the extent permitted by applicable law, on behalf of 3M and its licensors, liability for any direct, indirect, special, incidental or consequential damages or economic loss arising from the Distributable Code based upon breach of warranty, breach of contract, negligence, strict liability in tort or any other legal theory, even if 3M and its licensors have been advised of the possibility of such damages.
3.3 Nothing herein shall be deemed to grant Licensee any right, title or interest in the 3M Software. Any use or distribution of the 3M Software requires a separate license agreement. This Agreement governs the SDK, including any updates, upgrades and new releases thereof, unless they are accompanied by a separate written agreement.
4.0 Prohibited Uses.
Licensee agrees to use the SDK solely in accordance with the Documentation and this Agreement. Licensee Applications shall only use APIs documented in the SDK, and shall not use or call any undocumented, private or unpublished APIs. All rights not expressly granted to Licensee herein are reserved to 3M and its licensors. Licensee shall not unlock, unencrypt, decompile, disassemble, reverse engineer or otherwise seek to gain access to the source code of the SDK except as expressly permitted by 3M. Licensee shall not use the SDK in any manner that may cause the SDK or the 3M Software to be subject to an open source license.
5.0 End User Notification.
The Compatible 3M Device contains 3M Software with three predefined Littmann filters for sounds in the Bell, Diaphragm and Extended Range modes as well as a fourth unfiltered data mode. Any audio data received by the Licensee Application from a Compatible 3M Device and retransmitted to a Compatible 3M Device shall not be altered or modified in any way. In no event shall Licensee misrepresent the Littmann® Bell, Diaphragm and Extended Range modes. If any alteration to or modification of audio data received from a Compatible 3M Device has been made by the Licensee Application or the audio sounds are being listened to through devices other than Compatible 3M Devices (including, but not limited to PC speakers, external speakers, or headphones), Licensee shall clearly display the following notices to End Users:
(i) in the Instructions For Use:
During an active streaming session, the Consultant has the option of using the Littmann® Stethoscope Model 3200 to listen to the streaming auscultation, the speaker system inherent to the PC, or speakers connected to the audio jack of the PC, such as headphones, desktop speakers, etc.:
"CAUTION: The audio quality of the sounds played through the PC speakers or PC audio jack may not be a faithful reproduction of the actual sounds due to the acoustical performance of the PC's sound card, sound card drivers, and/or the frequency response of the headphones/speakers, potentially resulting in not being able to hear clinically relevant sounds. It is strongly recommended that a 3M3M™ Littmann® Stethoscope Model 3200 is used to listen to the auscultation session as the sound quality at the remote site will be equivalent to what is heard at the local site."
(ii) in the Licensee Application user interface:
"CAUTION: It is strongly recommended that a 3M3M™ Littmann® Stethoscope Model 3200 is used to listen to the auscultation session as the sound quality at the remote site will be equivalent to what is heard at the local site."
6.0 Term & Termination.
6.1 Term This Agreement shall remain in effect until terminated in accordance herewith.
6.2 Termination for Cause. 3M may terminate this Agreement in the event of Licensee's breach thereof that is not cured within ten (10) days of Licensee's receipt of notice of such breach. In addition, 3M may immediately terminate this Agreement for cause in the event that, using commercially reasonable efforts, 3M is unable to obtain or retain any third-party right or license required for 3M to provide Licensee with the rights and licenses granted herein.
6.3 Termination for Convenience. 3M may terminate this Agreement for convenience, with or without cause, upon thirty (30) days written notice to Licensee.
6.4 Effect of Termination.
6.4.1 Upon termination of this Agreement for cause pursuant, to Section 6.2, Licensee's right and license to use SDK shall terminate and Licensee shall immediately cease all use of the SDK and the distribution, sale and use of the Licensee Application. At 3M's option, Licensee shall return or securely destroy all copies of the SDK.
6.4.2 Upon expiration of this Agreement pursuant to Section 6.1, or termination for Convenience pursuant to Section 6.3, Licensee's right and license to use SDK shall terminate and Licensee shall immediately cease all use of the SDK, provided that Licensee may continue the distribution, sale and use of any Licensee Application created prior to such expiration or termination. At 3M's option, Licensee shall return or securely destroy all copies of the SDK.
7.0 SDK Modifications.
From time to time, 3M may modify the 3M Software, Compatible 3M Devices and the SDK. Licensee agrees to promptly implement, in the Licensee Application, any SDK modifications provided by 3M if necessary to maintain compatibility with a Compatible 3M Device or the 3M Software.
8.0 Technical Support.
3M will provide Licensee with limited telephonic technical support at its discretion. Additional technical support will be provided at a rate of $250/hour (one hour minimum for each instance). Price and availability of technical support is subject to change without notice. Additional terms and conditions may apply.
Licensee agrees to keep the SDK (except Distributable Code distributed in accordance with Section 3.3), the terms of this Agreement including but not limited to non-public information regarding the 3M Software and 3M Compatible Devices ("Confidential Information") strictly confidential, using the same level of care it uses to protect its own highly confidential information but no less than reasonable care. Licensee shall restrict access to and use of Confidential Information to its employees who require such access and use to perform their normal job functions and who are legally bound to maintain the confidentiality of Confidential Information as provided herein. In no event shall Licensee disclose the SDK, or any concepts or ideas based on or arising from the SDK as provided to Licensee hereunder, to any third party, including any patent office on a worldwide basis, without the prior written consent of 3M. Licensee agrees to return all Confidential Information to 3M or, at 3M's option, certify its destruction in writing, upon the expiration or termination of this Agreement
10.0 Independent Development.
Nothing in this Agreement will impair 3M's right to develop, acquire, license, market, promote, or distribute products or technologies that perform the same or similar functions as, or otherwise compete with Licensee Applications or any other products or technologies that Licensee may develop, produce, market, or distribute.
11.0 Relationship of Parties and Third Party Beneficiaries.
This Agreement will not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between Licensee and 3M, and Licensee will not represent to the contrary, whether expressly, by implication, appearance, or otherwise. This Agreement is not intended for the benefit of any third parties.
12.0 Legal Compliance.
The Model 3200 Electronic Stethoscope is a FDA Class II and a MDD Class IIa medical device. Licensee shall comply with all applicable laws, regulations, legal restrictions and requirements regarding the manufacturing, marketing, distribution and sale of the Licensee Application, including but not limited to any regulations promulgated by the U.S. Food and Drug Administration ("FDA") and other such agencies. Licensee shall not seek regulatory permission to market the Licensee Application, alone or in combination with the 3M Software or a Compatible 3M Device, or make any representations that would subject 3M to additional legal or regulatory requirements. If the Licensee Application is used to store, process or transmit Protected Health Information, Licensee shall be solely responsible for compliance with applicable information privacy laws, including the U.S. Health Insurance Portability and Accountability Act (HIPAA).
13.0 WARRANTY DISCLAIMER.
THE SDK AND THE LOGO ARE PROVIDED "AS IS" AND "WHERE IS," AND 3M DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM TRADE USAGE OR A COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, 3M DOES NOT WARRANT THAT THE SDK IS FREE FROM BUGS, ERRORS OR OMISSIONS, THAT THE SDK WILL PROVIDE ACCEPTABLE RESULTS.
Licensee shall indemnify and hold harmless 3M and its licensors, their subsidiaries and affiliates, and the officers, directors, employees, agents, successors and assigns thereof ("Indemnitees") from and against all liabilities, claims, expenses, penalties, fees or demands, including reasonable attorneys' fees and costs, arising from: (a) Licensee's use of the SDK; (b) Licensee's violation of any laws, rules, regulations or breach of this Agreement; (c) the sale, distribution, marketing and use of the Licensee Application by Licensee or any third party; (d) the infringement of any intellectual property right of any person or entity arising from Licensee's Application; and (d) personal injury or death arising from the Licensee Application or the use thereof.
15.0 LIMITATION OF LIABILITY.
3M WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF BUSINESS OR CONFIDENTIAL INFORMATION, LOSS OF PRIVACY, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR LICENSEE'S THE USE OF OR INABILITY TO USE THE SDK OR THE LOGO EVEN IF 3M HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE ENTIRE LIABILITY OF 3M UNDER THIS AGREEMENT, ANY WARRANTY, OR OTHERWISE ARISING FROM OR RELATING TO THIS AGREEMENT, THE SDK AND THE LOGO SHALL BE LIMITED TO $100.00. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.
16.0 Governing Law and Attorneys Fees.
This Agreement is governed by the laws of the State of Minnesota, USA, excluding its conflict of laws rules, and specifically excluding the United Nations Convention on Contracts for the International Sale of Goods. If Licensee acquired the SDK in a country outside of the United States, that country's laws might apply. The parties consent to jurisdiction and venue in the state and federal courts sitting in Ramsey County in the State of Minnesota, USA, and agree that all disputes arising from this Agreement shall be venued in such courts. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party will be entitled to recover its costs, including reasonable attorneys' fees. THE PARTIES FURTHER AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SDK MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
17.0 U.S. Government Restricted Rights.
The SDK is commercial computer software developed exclusively at private expense, and in all respects is proprietary data belonging solely to 3M. If the SDK is acquired by or on behalf of agencies or units of the Department of Defense (DoD), then, pursuant to DoD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government's right to use, reproduce or disclose the SDK is subject to the restrictions of this Agreement. If the SDK is acquired by or on behalf of civilian agencies of the United States Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government's right to use, reproduce or disclose the SDK is subject to the restrictions of this Agreement.
All notices under this Agreement must be in writing. All notices to 3M will be deemed given (i) when delivered personally, (ii) one day after having been sent by commercial overnight carrier specifying next-day delivery with written proof of delivery, and (iii) three days after having been sent by first class or certified mail, postage prepaid, at the address below:
3M Health Care Key Accounts
3M POS Channel Operations
3M Center, Building 275-5E-08
St. Paul, MN 55144-1000
This Agreement constitutes the entire agreement between Licensee and 3M with respect to the subject matter hereof. In the event of conflict between the terms and conditions of this Agreement and any other agreements or representations by or between the parties hereto, whether oral or written, this Agreement shall govern. The terms of this Agreement cannot be modified by any terms in any printed forms, including but not limited to purchase orders, and can only be modified or amended by express written consent of both parties. If any part of this Agreement is held to be unenforceable as written, it will be enforced to the maximum extent allowed by applicable law, and will not affect the enforceability of any other part. Licensee shall not transfer or assign this Agreement, or any of its rights or obligations hereunder, without 3M's express, written consent. The original of this Agreement is in English. If it is translated into another language, the English language version shall prevail.