ViewMedica Medical Exhibit Terms of Service
LICENSE AGREEMENT FOR VIEWMEDICA MEDICAL EXHIBIT SERVICE
IMPORTANT: PLEASE READ THIS TERMS OF SERVICE AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SERVICE (AS DEFINED BELOW). BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE.
THIS AGREEMENT is for the use of Licensed Content (as defined below) in conjunction with one legal case for courtroom, deposition, arbitration or other legal proceedings. Do not use the Content for any other purpose or allow the Content to be posted to the internet (see more restrictions below).
"Agreement" means these Terms of Service together with the Privacy Statement as provided to you on the ViewMedica website, as amended from time to time by ViewMedica’s Publisher.
“Provider” means the Publisher or the Publisher-approved distributer that you pay to receive the Service(s).
“Publisher” means Swarm Interactive, Inc. and its successors and assigns.
“Service(s)” means the ViewMedica Medical Exhibit Service covered by this agreement.
"Licensed Content" or "Content" means all information, data, text, software, music, sound, photographs, illustrations, audio or video files, messages or other materials owned or licensed by the Publisher, and furnished to you as a Medical Exhibit under the terms of this Agreement.
"Term" has the meaning set forth in Section 6.
"we" "our" or "us" means the Publisher, the Provider, and their successors and assigns.
"you" or "your" means you, as the end user of the Services, whether you are a natural person, sole proprietorship, partnership, limited liability company, corporation or other legal entity.
2. Governing Terms. Thank you for selecting the Services offered by Publisher. This Agreement governs your use of Services, and constitutes a legally binding agreement between you and The Publisher. By accessing or using the Services, or by executing and submitting a credit card billing authorization, you indicate that you understand and agree to this Agreement. If you do not agree to this Agreement, you are not granted any rights to access or use the Services, and you will not be able to access or use the Services. Your access to or use of any Services may also be subject to your acceptance of separate agreements with The Publisher. This Agreement incorporates by reference applicable program, subscription, activation, ordering and pricing terms provided to you online or offline for the Services selected by you and for other services made available to you through these Services, which may be subject to change from time to time. This Agreement will also govern your continued purchase and use of the Services, including such additional services made available to you through the Services that you have selected.
3. Grant of License. The Publisher hereby grants you a non-exclusive, nontransferable license to display the Medical Exhibits in connection with presentations, demand letters, settlement negotiations, arbitration and mediation proceedings, and trials in conjunction with one legal case. For purposes of artwork copyright protection, you must provide the name of the Plaintiff and Defendant during the ordering process. Failure to provide this information, or falsifying this information, will be a violation of this agreement.
4. Restrictions on Use. You may use the Medical Exhibits for legal case work only, and for no other purpose whatsoever. You may not use any Medical Exhibit or portion of any Medical Exhibit, including the artwork or labels, as a part of any other document, web site, publication, computer program except for the purpose set forth above. You may not use any Medical Exhibit or any portion of the Medical Exhibit to create any broadcast by any type of television, any type of publication, any presentation on a web page or replication by distribution via email or the Internet or otherwise. You may not alter the Medical Exhibit in any way whatsoever after it is purchased and downloaded. You may not remove or attempt to remove any copyright notices, legal notices, electronic safeguards or other items contained within any Medical Exhibit. You may not use, copy, re-use, archive, store or distribute any Licensed Content, except as expressly authorized above or as permitted in writing, signed by an authorized representative of the Publisher. You may not use a Medical Exhibit for more than one (1) legal case. You may not sell or sublicense any copy of the Medical Exhibits, in either hard copy or electronic form.
Except as expressly permitted herein, and in addition to restrictions above, you must not do, nor allow or assist any third party in doing, any of the following:
- Post Content on a website for any purpose.
- Use Content on items for resale, license or distribution for profit (posters, mugs, t-shirts for example).
- Reproduce or allow to be reproduced Licensed Content.
- Use Licensed Content for broadcast video, film, video products or public performances to an audience.
- License, sublicense, copy, assign, lease, loan, sell, resell, republish, upload, post, transfer, or distribute the Content or Service to any third party.
- Use the Service or Licensed Content in a way that competes with The Publisher's business, including but not limited to the ViewMedica Stock Medical Images Service and ViewMedica Patient Education System.
- Install the Content in more than two locations or post to a Web or Network server for use by others.
- Use Content as part of or as a trademark, service mark or logo, or in a way that could be considered by The Publisher (acting reasonably) to be an endorsement of any product, service or person.
- Use Content in a manner that The Publisher reasonably can consider to be infringing, obscene, pornographic, defamatory, or in violation of any local, state, federal or international law.
- Remove any copyright or other watermarks if found on the Licensed Content.
- Decompile, disassemble, debug, use automated programs or reverse engineer the Services or the Licensed Content.
- Use the Services, including any Licensed Content, for any purpose that is unlawful or prohibited by this Agreement.
If you violate any of these terms, your permission to use the Services terminates automatically, with immediate effect.
5. No Sublicenses, No Transfers. The license granted herein is not sublicensable and may not be transferred or assigned by you to any third party without The Publisher's prior written approval, which The Publisher may withhold in its sole discretion. Any attempted sublicense, and any attempted transfer without the prior approval of The Publisher, shall be void from the outset.
6. Term And Renewal Term. Unless terminated earlier as expressly provided herein, the initial term of this Agreement shall be for a period of one (1) year commencing as of the date of your acceptance of the Agreement (when you created and saved your account preferences or by commencing use or access to the Services). After the initial Term, this Agreement shall be automatically renewed for successive one (1) year periods ("Renewal Term") until the Agreement is otherwise terminated as expressly provided herein.
7. Cancellation And Termination. Notwithstanding the foregoing or anything elsewhere herein, The Publisher may, at its sole election, require you to cease using any Licensed Content upon forty-eight (48) hours' notice to you (which notice, notwithstanding anything to the contrary herein, may be delivered via facsimile, electronic mail or any other effective method of written communication). Within two (2) business days following your receipt of such Notice, you shall immediately cease to use the applicable items of Licensed Content. You and The Publisher acknowledge that the purpose of this provision is to defend and protect The Publisher's valuable rights in the Licensed Content, and not to otherwise frustrate the purpose of this Agreement or deny you the benefit of the license granted herein under circumstances in which you are without fault or negligence.
Subject to the following, you may request cancellation of the Services at any time. To request cancellation, contact your Provider. The Provider reserves the right to collect fees, surcharges or costs incurred before you cancel your Services. You must provide us with the following information in order make it possible to process any cancellation request: (a) the exact name of the Services that you would like to cancel; (b) your username and password; (c) your email address; (d) your reasons for canceling the Services.
Upon termination: All monies then due or to become due to the Provider shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by You.
Termination or expiration of this Agreement for any reason shall not affect obligations that: (a) have accrued as of the date of termination or expiration; (b) arise out of occurrences prior to the termination or expiration date; (c) become effective upon termination or expiration; or (d) by their terms continue after termination or expiration.
9. Feedback. We may provide you with a mechanism to provide feedback, suggestions and ideas, if you choose, about its services ("Feedback"). You agree that We may, in our sole discretion, use the Feedback you provide to us in any way, including in future modifications of the Services, Licensed Content and/or advertising, marketing and promotional materials relating thereto. You hereby grant us a perpetual, worldwide, fully transferable, sublicenseable, non-revocable, fully paid-up, royalty free license to use, modify, create derivative works from, distribute, display and otherwise exploit any information you provide to us in the Feedback.
10. Reservation Of Rights And Ownership. The Services and the Licensed Content are licensed not sold, and we reserve all rights not expressly granted to you in this Agreement. The Services and Licensed Content are protected by copyright, trade secret and other intellectual property laws. The Publisher and its licensors, where applicable, own all right, title and interest in and to the Services and Licensed Content (and all intellectual property rights therein), including but not limited to its technology, content, derivatives, and modifications of the Services or Licensed Content by whomever made. We do not grant any license or other authorization to any user of its branding, trademarks, service marks, or other copyrightable material or other intellectual property.
11. Indemnification. You must evaluate and bear all risks associated with, the accuracy, completeness or usefulness of any Licensed Content you download from the Service.
You agree to defend, indemnify and hold Us, Our Suppliers, Our corporate affiliates, officers, directors, employees, subsidiaries and agents, harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys fees) resulting from or arising out of a claim resulting from or arising out of your breach or alleged breach of this Agreement.
You agree that We have the right (but not the obligation) to monitor the Services and Content from time to time and to disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request, to operate the Services properly, or to protect Us or Our users. We will not intentionally disclose any private email message unless required by law.
12. Representations and Warranties. Each party hereby represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (b) the execution of this Agreement, and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound.
13. Warranty Disclaimers. THE SERVICES AND THE LICENSED CONTENT ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The entire risk as to the quality and performance of the Services and Licensed Content is with you. We do not warrant that the functions contained in the Services will meet your requirements or operate in the combination that you may select for use, that the operation of the Services will be uninterrupted or error free, or that defects in the Services will be corrected. No oral or written statement by Us or by Our representative shall create a warranty or increase the scope of this warranty. The Publisher makes no warranties and/or representations regarding the accuracy of Licensed Content keywords, meta data and descriptions found within the Service.
WE DO NOT WARRANT THE SERVICES OR THE LICENSED CONTENT AGAINST INFRINGEMENT OR THE LIKE WITH RESPECT TO ANY COPYRIGHT, PATENT, TRADE SECRET, TRADEMARK OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY AND DO NOT WARRANT THAT THE SERVICES OR LICENSED CONTENT IS FREE OF ANY VIRUS, SOFTWARE ROUTINE OR OTHER SOFTWARE DESIGNED TO PERMIT UNAUTHORIZED ACCESS, TO DISABLE, ERASE OR OTHERWISE HARM SOFTWARE, HARDWARE OR DATA, OR TO PERFORM ANY OTHER SUCH ACTIONS.
Any warranties that by law survive the foregoing disclaimers shall terminate ninety (90) days from the date you first access or use the Services.
We are not engaged in rendering legal, or other professional service. If such assistance is required, the service of a competent professional should be sought. The Publisher, Provider and their suppliers expressly disclaim any representations or warranties that Your use of the services will satisfy any statutory or regulatory obligations, or will assist with, guarantee or otherwise ensure compliance with any applicable laws or regulations, including but not limited to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), the Gramm-Leach-Bliley Act of 1999, the Sarbanes-Oxley Act of 2002, or other federal or state statutes or regulations. You are solely responsible for ensuring that Your use of the services is in accordance with applicable law.
14. Limitation of Liability and Damages. To the maximum extent permitted under applicable law, the entire cumulative liability of the Publisher, Provider and their affiliates and suppliers, and your exclusive remedy for all matters or claims arising from or relating to this Agreement shall be limited to the amount paid by and/or due from you for the Services within the twelve (12) month period immediately preceding the event giving rise to such claim. To the maximum extent permitted by applicable law, the Publisher, Provider and their affiliates and suppliers shall not be liable for any (a) indirect, special, incidental, punitive or consequential damages; and (b) damages relating to telecommunication failures, internet and electronic communications failures, delays or limitations, loss, corruption, security or theft of data, viruses, spyware, loss of business, revenue, profits or investment, use of software or hardware that does not meet our systems requirements. The limitations of damages set forth above are fundamental elements of the basis of the bargain among the Publisher, Provider and You. We would not have provided the Services or the Licensed Content without such limitations.
You agree that the Publisher, Provider and their affiliates and suppliers will not be liable for defense or indemnity with respect to any claim against you by any third party arising from your possession or use of the Services or the Licensed Content.
In no event will our total liability to you for all damages, losses, and causes of action (whether in contract, tort, including negligence, or otherwise) exceed the amount you paid for the Services.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, AND SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
15. Government Restricted Rights. For units of the Department of Defense, use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013. Contractor/manufacturer is Swarm Interactive, Inc. 1506 E. Franklin St., Suite 101, Chapel Hill, NC 27514.
If the Commercial Computer Software Restricted rights clause at FAR 52.227-19 or its successors apply, the Services and Licensed Content constitute restricted computer software as defined in that clause and the Government shall not have the license for published software set forth in subparagraph (c)(3) of that clause.
The Services and Licensed Content (a) were developed at private expense, and no part of it was developed with governmental funds; (b) are a trade secret of the Publisher (or its licensor(s)) for all purposes of the Freedom of Information Act; (c) is "restricted computer software" subject to limited utilization as provided in the contract between the vendor and the governmental entity; and (d) in all respects is proprietary data belonging solely to the Publisher (or its licensor(s)).
16. Governing Law. This Agreement shall be construed in accordance with the laws of North Carolina. You consent to the exclusive jurisdiction and venue of the courts of North Carolina. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement shall continue in full force and effect.
17. Attorneys' Fees. In the event an action is filed to enforce this Agreement or for breach of this Agreement, the prevailing party shall be entitled to recover all the costs of such action, including reasonable attorneys' fees, whether before, during, or after trial, or on appeal, or in bankruptcy proceedings.
18. Complete Agreement. This Agreement constitutes the entire agreement between the parties hereto and shall not be modified, amended, or changed in any way except by a written agreement signed by the Publisher and Provider. In the event of a dispute between the English and any non-English version of this Agreement, the English version of this License shall govern. We may change this Agreement from time to time effective upon posting of the modified Agreement on Publisher’s website. Please review the Agreement periodically on Publisher’s website for changes. The Publisher has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to, Internet based services, pricing, technical support options, and other product-related policies, at any time upon notice by any means the Publisher determines in its discretion to be reasonable. Your continued use of the Services after our publication of any such changes shall constitute your acceptance of this Agreement as modified.