Terms of Service and License for Scott Connect Sight Programmer

This Agreement is 3M Company’s Terms of Service and License that governs its relationship among you (the “User”), and 3M Company and 3M Innovative Properties Company and its Affiliates (collectively “3M”) for the Scott Connect Sight Programmer application (herein “Software”).

By installing, copying, accessing, or otherwise using any part of the Software, you agree to and contract with 3M under the terms and conditions of this Agreement.  If you do not agree to the terms and conditions of this Agreement, you are prohibited from any use of the Software.

Use of the Software constitutes acceptance of this Agreement.  The Effective Date of this Agreement is that date on which you accept these Terms of Service and License for the Software.

  1. Definitions

1.1.           “Software” includes all (a) designs, text, graphics, images, logos, video, audio files, information, documentation, instructions, computer code (in any form), program files, hardware or software keys; (b) data or content that are provided, accessed, utilized, or generated by the Software; (c) all revisions, updates, and upgrades to the Software; and (d) any embodiment of (a)-(c) that is resident in a device provided, transferred, or otherwise sold by 3M.

1.2.          “Affiliate” means any: (a) individual who or “Entity” (i.e., any corporation, firm, partnership, proprietorship, or other form of business organization) that, in whatever country organized or resident, directly or indirectly, is controlled by, or is under common control with, or controls a party; or (b) Entity in which a party or any Entity in which any individual or Entity recited in subparagraph (a) directly or indirectly has at least a fifty percent ownership or voting rights interest (whether through stock ownership, stock power, voting proxy, or otherwise), or has the maximum ownership interest it is permitted to have in the country where such Entity exists.

  1. Termination.

2.1           This Agreement is effective upon the earlier of User’s installation or use of the Software and shall continue until it is terminated. User may terminate this Agreement at any time by destroying all copies of the Software in User’s possession or under User’s control. 3M may immediately terminate this Agreement, and/or User’s access to and use of the Software, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. 3M reserves the right to refuse to provide the Software to User in the future. This Agreement will automatically terminate upon User’s violation of any of the terms of this Agreement. Upon termination of this Agreement, all license rights granted to User shall immediately terminate and User must cease all use of the Software.

  1. Permitted Use and License

3.1.            3M hereby grants to User a worldwide, limited, non-exclusive, and non-transferable license to access and use the Software in accordance with this Agreement.  The Software is only licensed for use with specified Licensor-supplied systems for the Software and in accordance with any software keys provided by 3M to the User, where Licensor-supplied shall mean supplied by 3M or its suppliers.  User agrees not to use, or permit others to use the Software for any purposes beyond the scope of this Agreement. Without limiting the foregoing, User shall not, nor permit others to: (a) resell, sublicense, lease, time-share or otherwise make the Software available to any third party, including but not limited to for third-party training, commercial time-sharing, application service provider or service bureau use; (b) transfer or copy the Software or any component (i.e., functional software) thereof; (c) modify, adapt or make derivative works of the Software, or reverse engineer the Software (provided that the foregoing shall not be construed to prohibit User from configuring the Software to the extent permitted by the Software’s standard user interface); (d) remove, obscure, or alter 3M’s proprietary notices, trademarks, or other proprietary rights notices embodied on or contained in the Software or the documentation; (e) use the Software in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (f) introduce into the Software any virus or other code or routine intended to disrupt or damage the Software or its content, or collect information about the Software; (g) use the Software to send or store infringing or unlawful material; (h) access the Software for the purpose of building, or assisting others to build, a competitive product or service or copying its features, content or user interface, including without limitation by screen scraping; (i) access or use the 3M Software by means of any interfacing program, script, automated program, electronic agent or “bot” or; (j) use the Software with any article of personal protective equipment that is not approved or otherwise authorized for use with the Software by 3M.

3.2.         Unless expressly provided herein, 3M retains all rights to all intellectual property embodied in or related to the products and services hereunder, including the Software.  No ownership rights in any intellectual property are transferred to User under this Agreement.  User disclaims and waives all right, title, and interest in the software of the Software other than the license rights expressly set forth herein.  To the extent that User is ever deemed to have any right, title, or interest in the Software, or in any modification or derivative work thereof, User agrees to assign, and hereby assigns the same to 3M in accordance with their respective ownership interests, as determined by 3M.  User shall not sublicense, rent, copy, modify, create derivative works of, reverse engineer, decompile, disassemble or otherwise attempt to gain access to the source code for the Software, or work with any individual or company that seeks to do any such activity.

3.3.         Portions of the Software may incorporate Open Source Software.  By using the Software, User agrees to be bound to the terms of any third-party licenses for Open Source Software that is included in the Software.  Open Source Software means any software, in source or object form, that contains or is derived in any manner (in whole or in part) from any software, code or libraries that are distributed as free software or as open source software or under any licensing or distribution models similar to open source, including (a) software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to the following: the Artistic License, the BSD License, the Apache License, the MIT License, the Mozilla Public License, the GNU General Public License (GPL) or Lesser/Library GPL, or the Sun Community Source License or (b) any other license or distribution model which seeks to require any party which uses, modifies or distributes such software, code or libraries to make such software, code or libraries (or modification or derivative work thereof) or any other software, code or libraries which may be combined with or linked thereto available in source code form or which may impose any other obligation or restriction with respect to such party’s patent or other intellectual property rights.

  1. Support

4.1.          3M may, at its sole discretion, use commercially reasonable efforts to provide support services for the Software to User.  Unless specifically provided for in a separate agreement between 3M and User, in no event, shall 3M be obligated to provide support services to the User.  User expressly acknowledges that 3M does not guarantee a specific response time to requests for support services.

  1. Warranty

5.1.          USE OF THE SOFTWARE IS AT USER’S SOLE RISK. THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. 3M, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS DISCLAIM AND USER WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE, DOCUMENTATION, OR OTHER RELATED INFORMATION, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WARRANTIES OF FREEDOM FROM ERRORS OR DEFECTS, OR ANY WARRANTIES OF SECURITY AGAINST DATA BREACHES OR INTRUSIONS.  3M, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS DO NOT WARRANT THAT THE SOFTWARE OR DATA WILL MEET USER’S REQUIREMENTS, THAT OPERATION OF THE SOFTWARE OR AVAILABILITY OF DATA WILL BE UNINTERRUPTED, OR THAT THE SOFTWARE OR DATA IS WITHOUT ERROR.  NEITHER 3M NOR ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS WILL BE RESPONSIBLE FOR THE ACCURACY OR USE OF DATA ACCESSED BY THE SOFTWARE. THE ABOVE-STATED LIMITED WARRANTY IS VOID WITH RESPECT TO ANY UNAUTHORIZED USE OF THE SOFTWARE, USE OF THE SOFTWARE OTHER THAN IN ACCORDANCE WITH 3M, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS’S WRITTEN INSTRUCTIONS AND DOCUMENTATION, USE OF SOFTWARE WITH PRODUCTS AND SERVICES NOT PROVIDED BY 3M, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS, AND AS TO SOFTWARE THAT HAS BEEN DAMAGED OR MODIFIED OTHER THAN BY 3M, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS.

  1. Limitation of Liability

6.1.         TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL 3M, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS BE LIABLE (I) FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS OR LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT 3M, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES; (II) FOR LOSS OF, DAMAGE TO, OR BREACH OF SOFTWARE, RECORDS OR DATA; (III) FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (IV) FOR THIRD-PARTY CLAIMS AGAINST USER FOR LOSSES OR DAMAGES (V) BUSINESS INTERRUPTION; OR (VI) ANY CLAIMS ARISING FROM USER’S USE OF THIRD PARTY SUPPLIES OR EQUIPMENT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, 3M, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS’S TOTAL LIABILITY TO USER IS LIMITED TO USER PAYMENTS PROVIDED UNDER THIS AGREEMENT.

  1. User Responsibilities

Although 3M makes the Software available for User’s use, User understands and acknowledges that it is solely responsible for the use it makes of the Software including, but not limited to, complying with all user instructions, safe workplaces practices, and the monitoring and verifying the input to and output from the Software.  The Software is intended to supplement, not replace, appropriate workplace, PRIVACY, health, safety and environmental policies and practicesUSER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL WORKPLACE, PRIVACY, HEALTH, SAFETY, ENVIRONMENTAL AND OTHER APPLICABLE LAWS AND REGULATIONS.  USER AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND 3M, ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, LOSSES, DAMAGES, PENALTIES, FINES, LIABILITIES, COSTS AND EXPENSES, INCLUDING ATTORNEY’S FEES, THAT ARISE OR RESULT FROM USER’S USE OF THE SOFTWARE OR USER’S FAILURE TO COMPLY WITH SUCH LAWS AND REGULATIONS.

  1. User Data and 3M’s Use of User Data

8.1.          User acknowledges, agrees, and understands that information resulting from User’s use of the Software may be stored on User devices.  User is solely responsible for such information and such devices, including safeguarding and appropriate use of such information and such devices.

  1. Feedback Automatically Becomes 3M’s Property

Any feedback or suggestions provided by User to 3M regarding the products or services herein, (“Suggestions”) shall be the property of 3M and User hereby assigns to 3M all right, title and interest worldwide in and to such Suggestions and the related intellectual property rights.  User acknowledges and understands that, in connection with certain products and services, certain information regarding User’s use of the Software is transmitted to 3M.  Such information may be collected and used by 3M to provide support services to User, and for research and marketing purposes.  For the avoidance of doubt, 3M may use any feedback, suggestions, product experiences, and product outcomes provided or realized by User to improve or market the product or service, create new features, to conduct research, and develop new products or services, including reports based on analytics associated with the Software usage.

  1. General

10.1.        Governing Law, Limitation on Action and Attorneys’ Fees. Unless otherwise mandated by law, 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. The parties consent to personal 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. The parties also 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 must be brought within one (1) year after such claim or cause of action arose or be forever barred.

10.2.       Export Restrictions.  User agrees that it will not export or re-export (directly or indirectly) any products or documentation or other technical data therefore, in whole or in part, without complying with the U.S. Export Administration Act of 1979and the regulations thereunder.  User shall indemnify, defend (with counsel approved in writing in advance by 3M) and hold 3M harmless against any claims for cost, damage, expense or liability arising out of or in connection with these restrictions by User.

10.3.       Assignment.  User may not assign, voluntarily, by operation or law, in connection with a change in control, merger, or otherwise, this Agreement or any licenses granted or obligations set forth in these Terms and Conditions to any third party without prior written consent of 3M.

10.4.       Severability. If any provision of this Agreement is held invalid, illegal, unenforceable, or in conflict with any law having jurisdiction over this Agreement, the validity, legality, and enforceability of the remaining portions or provisions hereof will not be affected or impaired.

10.5.       Force Majeure.  Neither Party will be responsible for any failure to perform due to causes beyond its reasonable control (each a “Force Majeure”), including, but not limited to, acts of God, war, riot, criminal acts, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes, or fuel crises, terrorist actions, or widespread internet or electrical outages, provided that such Party gives prompt written notice thereof to the other Party.

10.6.      Waiver.  No waiver will be implied from conduct or failure to enforce rights, and no waiver will be effective unless in writing signed on behalf of the party against whom the waiver is asserted.  The exercise of any right or remedy provided in this Agreement will be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement.

10.7.       Compliance with Laws.  User is solely responsible for determining whether its use of the Software complies with applicable laws and regulations, including but not limited to those governing the collection, storage and use of personal information. User is solely responsible for establishing and maintaining policies, procedures, and third-party agreements relating to such information (including relating to collection, storage and use) as required by law.

10.8.       Prior Agreement.  This Agreement supersedes and replaces any and all prior agreements for the Software previously executed by the User.