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Terms and Conditions of Use
PREVIZE™ License and Use Agreement
Moran Research and Consulting, Inc. ("MRCI") operates
this web site and makes the content, applications, and functions
available on and through the web site's web pages solely for
access and use by qualified, licensed physicians who have
registered with the web site and who have agreed to be bound
by the terms and conditions of this PREVIZE™ License
and Use Agreement ("License"). Any access to or
use of this web site or the content, applications, or functions
available on and through its web pages (any such access or
use "Site Use") must be made pursuant to an in-force
License between MRCI and the qualified, licensed physician
making such access or use, and any other Site Use is unauthorized
and strictly prohibited.
Section 1. ASSENT TO LICENSE; REPRESENTATIONS & WARRANTIES;
MODIFICATION OF TERMS AND CONDITIONS.
(a) During registration with the web site, this License and
its terms and conditions are presented to you, and before
such registration is effective you must accept those terms
and conditions through an affirmative action acknowledging
your assent thereto without modification or amendment. An
electronic copy of this License will be sent to you following
your registration with the web site at the electronic mail
address you provided during such registration, and MRCI will
mail a printed copy of this License to you upon request.
(b) By assenting to this License and its terms and conditions
during registration with the web site, you represent and warrant
that you are a qualified, licensed physician practicing in
a field related to the Materials and that you agree to be
bound by the terms and conditions of this License without
modification or amendment except as provided in Section 1(e).
(c) Following your registration with the web site, your privileges
and immunities under this License may be exercised by an employee
of yours or by an employee of the entity that employs you,
on condition that:
(1) at all times such employee is acting strictly on your
behalf in the diagnosis, care, or treatment of a patient of
yours and is under your professional direction and control
in the provision of such diagnosis, care, or treatment and
in such Site Use; and
(2) any Site Use by such employee conforms fully to the terms
and conditions of this License.
Subject to the foregoing and to Section 1(d), any reference
to "you" or "your" in this License shall
apply to such an employee as well as to you the physician,
except for your representations and warranties of professional
capacity as a qualified, licensed physician and except for
other provisions where clearly not applicable.
(d) You agree that each and every Site Use pursuant to your
registration with the web site (for example, any Site Use
made by use of your password associated with your registration
with the web site) constitutes a Site Use by you, that such
Site Use will strictly conform to the terms and conditions
of this License, and that you are jointly and severally responsible
with the person making such Site Use for all acts and omission
made in connection with such Site Use. Any Site Use pursuant
to your registration constitutes additional confirmation of
your assent to the terms and conditions of this License (as
modified, amend or supplemented by MRCI as of the time of
such Site Use as provided in Section 1(e) below), as well
as your reaffirmation of your representations and warranties
made in this License.
(e) MRCI reserves the right to, and you agree that MRCI may,
at any time modify, amend or supplement the terms and conditions
of this License without notice, and your Site Use Authorization
for any specific Site Use shall be subject to the most current
version of the License's terms and conditions posted on the
web site at the time of such Site Use. Accordingly, you should
refer to the posted License terms and conditions frequently
because your Site Use after such change constitutes your agreement
to such changes.
Section 2. GRANT OF LICENSE.
(a) Except as otherwise prohibited by this License, by MRCI
or by an applicable law, regulation, rule, or standard, and
on condition of your strict compliance with the terms and
conditions of this License, MRCI grants to you a limited,
personal, nonexclusive, royalty-free, nontransferrable, and
nonassignable license, which license may not be sublicensed,
to do the following as limited by the other terms and conditions
of this License ("Site Use Authorization"):
(1) cause the nonpublic display of the Materials (as defined
below) on your personal computer or other Internet-access
device for viewing in connection with your diagnosis, care,
or treatment of patients in the ordinary course of your practice
and in full compliance with any applicable laws, regulations,
rules, and standards for such diagnosis, care, or treatment;
(2) cause the nonpublic performance of the Materials for such
diagnosis, care, or treatment;
(3) cause the execution and running of any Material that is
an application, applet, or program in connection with data,
information, or other input provided by you relevant to such
diagnosis, care, or treatment and for the purpose of such
diagnosis, care, or treatment; and
(4) make copies of the data and information presented by the
Materials, provided that such copies are limited to those
transient copies necessary for permitted display, performance,
or use of the Materials and to no more than one tangible copy
for use in your planning and decision making with respect
to such diagnosis, care, or treatment.
(b) Ownership of the Materials and all rights in and to such
Materials are reserved to MRCI and its parents, subsidiaries,
affiliates, or licensors, and under this License you only
acquire the limited privileges and immunities expressly provided
by the Site Use Authorization. Without limiting the foregoing,
you do not acquire under this License any implied rights,
powers, privileges, or immunities with respect to any patents,
copyrights, trademarks, or trade secret information.
Section 3. OWNERSHIP OF MATERIALS.
(a) The contents of this web site and it constituent web pages
(including without limitation all applications, applets, functions,
and other programming; documents, specifications, and other
textual material; photographs, images, illustrations, artwork,
animations, videos, icons, and other graphic materials; narrations
and other aural materials; and trade names, product designations,
logos, trademarks, and service marks) (the "Materials")
are the property of MRCI or its parents, subsidiaries, affiliates
or licensors and are protected by copyright, trademark, and
other intellectual property laws in the U.S. and other countries.
MRCI owns the copyrights in the selection, coordination, and
arrangement of the contents of this web site and all of its
constituent web pages. Any access or use of the Materials
or the selection, coordination, and arrangement of the contents
of the web site other than pursuant to valid Site Use Authorization
may violate copyright, trademark, or other laws.
(b) The equipment and software operating this web site are
the property of MRCI or its parents, subsidiaries, affiliates
or contractors and are protected by various state and federal
laws. Any Site Use made without Site Use Authorization constitutes
trespass and may violate other civil and criminal prohibitions.
For purposes of this License, any automated crawling or other
mechanized examination of or access to this web site shall
be deemed to be breach of the representation and warranty
of Section 1 and outside the scope of any Site Use Authorization.
(c) MRCI lists below exemplary intellectual properties, further comprising
at least brand identities, characters, trade names, graphics, designs,
copyrights, trade dress, trademarks (PreVize™ and IOL Finder™) and source indicators of the Company
and its affiliates. Contact us for further detailed information as to patent
rights, which may apply to any aspects of listed products, their usage,
fabrication, constituents, appearance or inherent benefits, worldwide.
Section 4. TERMINATION OF LICENSE.
If you breach any of your representations, warranties, or
agreements under this License, or any other of its terms and
conditions, your Site Use Authorization automatically terminates.
In addition, MRCI may terminate your Site Use Authorization
at any time, with or without prior notice to you. Upon termination
of your Site Use Authorization, you must immediately terminate
any Site Use, refrain from further Site Use, and destroy any
digital, printed, or other tangible Materials and any materials
derived in whole or any part from Material on this site, regardless
of any prior Site Use Authorization for your acquisition or
production of such Materials or derived materials. You may
terminate this License by notifying MRCI of such termination
and by complying with the foregoing provisions. The provisions
of Section 1(b), Section 1(d), Section 3, Section 6, Section
7, Section 8, Section 9, Section 11, Section 12, and Section
13 shall survive any termination of this License.
Section 5. SITE USE PROHIBITIONS.
(a) Without limiting any other restriction or prohibition
with respect to Site Use, the Site Use Authorization does
include any of the following, and you agree that you will
not do any of the following or permit anyone to do any of
the following:
(1) sell or rent any Material to any person or entity or offer
to do so;
(2) make, use, copy, reproduce, modify, make derivative works
of, publish, republish, upload, post, repost, transmit, mirror,
distribute, redistribute, display, or perform any Material
in any way, without MRCI's prior written permission or except
as expressly provided in the Site Use Authorization;
(3) reverse-engineer, disassemble, decompile or reverse-compile
any Materials that are applications, applets or other software
materials;
(4) remove any copyright, trademark, patent, or other proprietary
or legal notice from any Material;
(5) make any Site Use or otherwise take any action with respect
to the Materials except for internal use in your practice
for the diagnosis, care, or treatment of your patients in
the ordinary course of your practice under your professional
direction and control;
(6) transfer the Materials or any data or information therein
to any person, except for transfers to persons who are connected
with your diagnosis, care, or treatment of patients in the
ordinary course of your practice that fully comply with any
applicable laws, regulations, rules, and standards for such
diagnosis, care, treatment, and transfer;
(7) take any action or make any omission with respect to the
Materials or any data or information related thereto, if such
action or omission is contrary to applicable law, regulations,
rules, or standards; or
(8) interrupt or attempt to interrupt the operation of the
web site or any of its web pages or any Materials in any way.
(b) Any use by you of a trademark or service mark of MRCI
or its parents, subsidiaries, affiliates, or licensors requires
prior, express, written consent. You must not alter or amend
the presentation of such trademarks or service marks in any
Material in your possession or used by you pursuant to your
Site Use Authorization. Fair use of such a trademark or service
mark requires proper acknowledgment.
Section 6. YOUR ADDITIONAL REPRESENTATIONS, WARRANTIES, AND
AGREEMENTS.
You represent and warrant to MRCI and agree that:
(a) You have and will retain full and final responsibility
for all procedure performed in relation to your Site Use or
use of the Materials, and that you shall independently verify
prior to any such procedure any data or information provided
during any Site Use or by any Material. Such verification
includes but is not limited to checking the entered data,
re-calculation of any information provided by Site Use or
Materials, and confirmation of all data and information so
provided;
(b) In relation to your Site Use or use of the Materials,
any diagnosis, care, or treatment of your patients shall be
in the ordinary course of your practice under your professional
direction and control and in full compliance with any applicable
laws, regulations, rules, and standards for such diagnosis,
care, treatment;
(c) You shall not use any data or information in connection
with your Site Use, or otherwise transmit any data or information
to MRCI or the web site, that personally identifies any of
your patients or that otherwise would constitute a violation
of any applicable law, regulation, rule, or standard;
(d) None of the data or information presented or derived from
Site Use or the Materials constitutes or may be construed
as medical advice, and that certain such data or information
presented during Site Use is the result of standard calculation
methods. The verification of its accuracy by comparison to
other methods is solely your responsibility and obligation,
and you will perform such verification whenever it is reasonably
appropriate in your diagnosis, care, or treatment of any of
your patients; and
(e) You shall confirm all representations of any manufacturer
product specifications, product descriptions, and product
availability by contacting the manufacturer directly prior
to use of such product in your diagnosis, care, or treatment
of any of your patients.
Section 7. NO MRCI WARRANTIES.
YOU ASSUME FULL RESPONSIBILITY FOR AND THE ENTIRE RISK OF
ANY SITE USE AND ANY USE OF THE MATERIALS, AND THE ACCURACY,
COMPLETENESS, AND USEFULNESS OF ALL SITE USE AND MATERIALS
AND THEIR QUALITY AND MERCHANTABILITY AND FITNESS FOR ANY
PURPOSE. MRCI MAKES NO EXPRESS WARRANTIES (WRITTEN OR OTHERWISE
AND REGARDLESS OF ANY STATEMENTS PRESENTED DURING SITE USE
OR IN ANY MATERIALS OR ADVERTISING OF THE WEB SITE) AND DISCLAIMS
AND EXCLUDES ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED
TO ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ALLEGED
TO ARISE FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
SITE USE AND MATERIALS ARE PROVIDED "WITH ALL FAULTS,"
"AS IS" AND "AS AVAILABLE." WITHOUT LIMITING
ANY OTHER PROVISION OF THIS Section 7, MRCI DOES NOT WARRANT
THAT SITE USE OR ANY MATERIALS WILL BE AVAILABLE, UNINTERRUPTED,
ACCURATE, COMPLETE, ADEQUATE, USEFUL, TIMELY, RELIABLE, ERROR-FREE
OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT MRCI
WILL CORRECT ANY OF THE FOREGOING. NO ADVICE OR INFORMATION
GIVEN BY MRCI OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY.
MRCI IS ENTITLED TO MAKE CHANGES TO THE WEB SITE, ANY MATERIAL
AND ANY OTHER WEB SITE COMPONENT AT ANY TIME, AND ANY SUCH
CHANGE SHALL NOT CREATE ANY EXPRESS OR IMPLIED WARRANTY OF
ANY KIND. BECAUSE SOME JURISDICTIONS MAY PROHIBIT SOME OF
THE EXCLUSIONS OF THIS Section 7, CERTAIN EXCLUSIONS MAY NOT
APPLY TO YOU IF Section 12 OF THIS LICENSE IS NOT RESPECTED.
Section 8. LIMITATION OF LIABILITY.
MRCI AND ITS PARENTS, AFFILIATES, EQUITY HOLDERS, DIRECTORS,
OFFICERS, MANAGERS, EMPLOYEES, CONTRACTORS, CONSULTANTS, AND
AGENTS SHALL NOT BE LIABLE FOR ANY COSTS OR DAMAGES ARISING
DIRECTLY OR INDIRECTLY FROM YOUR SITE USE OR USE OF THE MATERIALS,
INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE,
SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION,
LOSS OF INFORMATION), EVEN IF MRCI HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING,
MRCI SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIM, LOSS,
ACTION, DAMAGE, SUIT, OR PROCEEDING RESULTING FROM: ANY DIAGNOSIS,
CARE, OR TREATMENT OF A PATIENT BASED IN WHOLE OR IN ANY PART
ON ANY SITE USE OR ANY MATERIAL, OR ANY SURGICAL OR CLINICAL
OUTCOME OF SUCH DIAGNOSIS, CARE, OR TREATMENT; OTHER PERSONS
ACCESSING YOUR COMPUTER OR USING YOUR REGISTRATION WITH THE
WEB SITE; SECURITY BREACHES; EAVESDROPPING; DENIAL OF SERVICE
ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED DURING SITE
USE; YOUR RELIANCE ON OR USE OF THE WEB SITE OR THE MATERIALS,
OR THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES,
DATA LOSS, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS,
OR ANY FAILURE OF PERFORMANCE OF THE WEB SITE, YOUR EQUIPMENT
OR THE MATERIALS; SITE USE OR USE OF MATERIALS BY YOU OR A
THIRD PARTY THAT INFRINGES THE COPYRIGHT, PATENT, TRADEMARK,
TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INDUSTRIAL
OR INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL
RIGHTS OF ANY THIRD PARTY; THE ACCURACY, COMPLETENESS, AND
USEFULNESS OF ANY SITE USE OR MATERIAL, OR THE QUALITY AND
MERCHANTABILITY OF ANY SITE USE OR MATERIAL. MRCI IS ENTITLED
TO MAKE CHANGES TO THE WEB SITE, ANY MATERIAL, AND ANY OTHER
WEB SITE COMPONENT OR CONTENT AT ANY TIME, AND ANY SUCH CHANGE
SHALL NOT IMPOSE ANY LIABILITY ON MRCI WHATSOEVER. THE FOREGOING
LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS
NEGLIGENCE OF MRCI OR ITS PARENTS, AFFILIATES, EQUITY HOLDERS,
DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, CONTRACTORS, CONSULTANTS,
OR AGENTS THAT, BUT FOR THIS PROVISION, WOULD GIVE RISE TO
THE CAUSE OF ACTION AGAINST MRCI IN CONTRACT, TORT (INCLUDING
PRODUCTS LIABILITY) OR ANY OTHER LEGAL DOCTRINE. YOUR SOLE
AND EXCLUSIVE REMEDY UNDER THIS LICENSE IS TERMINATION AS
EXPRESSLY SET OUT IN Section 4 OF THIS LICENSE. IF Section
12 OF THIS LICENSE IS NOT RESPECTED, SOME OF THE LIMITATIONS
ABOVE MAY NOT APPLY TO YOU BECAUSE SOME JURISDICTIONS PROHIBIT
THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL
OR INCIDENTAL DAMAGES, AND YOU MAY ALSO HAVE OTHER RIGHTS
THAT VARY FROM STATE TO STATE.
Section 9. YOUR INDEMNIFICATION OBLIGATIONS.
(a) You agree to indemnify MRCI, its parents, and its affiliates,
and any and all of their equity holders, directors, officers,
managers, employees, contractors, consultants, agents and
professional advisors (each an "MRCI Indemnitee"
and collectively the "MRCI Indemnitees") against,
and defend the MRCI Indemnitees and hold the MRCI Indemnitees
harmless from, any and all claims, demands, actions, causes
of action, suits, litigations, arbitrations, proceedings,
defenses, judgments, damages, liabilities, obligations, payments,
fines, penalties, costs, losses (including but not limited
to any diminution in value), shortages, disbursements, interest
and reasonable expenses (including, without limitation, reasonable
and necessary attorneys' fees and expenses, accounts' fees
and expenses and litigation costs and expenses), whether liquidated
or unliquidated, accrued or contingent, imposed upon, asserted
against, or sustained, suffered, incurred or paid by any MRCI
Indemnitee, directly or indirectly, as a result of, in connection
with, arising out of or relating to, any of the following:
(i) any alleged infringement, misappropriation, encroachment
or violation of any technology right or intellectual property
or any right, title or interest therein, or any acts or omissions
alleged to constitute unfair competition or trade practices
under any law, based directly or indirectly or in whole or
any part on, or otherwise relating to or arising from, any
of your Site Use or use of any of the Materials except in
strict compliance with your Site Use Authorization; (ii) any
breach by you of any term or condition of this License; (iii)
any death, personal injury or property damage resulting from
your diagnosis, care, or treatment of a patient of yours or
from any procedure or outcome related to such diagnosis, care,
or treatment, regardless of whether such death, personal injury
or property damage is based directly or indirectly or in whole
or any part on, or otherwise relates to or arises from, any
of your Site Use or use of any of the Materials or is based
on some other theory; and (iv) otherwise relating to or arising
or resulting from, directly or indirectly and in whole or
any part, any of your Site Use or use of any of the Materials
(b) YOU AGREE THAT YOUR INDEMNIFICATION OBLIGATIONS SET FORTH
IN THIS LICENSE ARE INTENDED TO BE ENFORCEABLE AGAINST YOU
IN ACCORDANCE WITH THE EXPRESS TERMS AND SCOPE HEREOF, NOTWITHSTANDING
ANY EXPRESS NEGLIGENCE RULE OR ANY SIMILAR DIRECTIVE OR PRINCIPLE
THAT WOULD PROHIBIT OR OTHERWISE LIMIT YOUR INDEMNIFICATION
OBLIGATIONS BECAUSE OF THE SIMPLE OR GROSS NEGLIGENCE (WHETHER
SOLE, CONCURRENT, ACTIVE OR PASSIVE) OR OTHER FAULT OR STRICT
LIABILITY OF ANY MRCI INDEMNITEE. YOU ACKNOWLEDGE AND AGREE
THAT YOUR INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN MAY
RESULT IN THE INDEMNITY OF AN MRCI INDEMNITEE FOR ITS SIMPLE
OR GROSS NEGLIGENCE (WHETHER SOLE, CONCURRENT, ACTIVE OR PASSIVE)
OR OTHER FAULT OR STRICT LIABILITY OF AN MRCI INDEMNITEE.
Section 10. COLLECTION OF INFORMATION CONCERNING YOUR SITE
USE.
You agree that MRCI shall be entitled to obtain system and
computer information related to your Site Use at any time,
including without limitation any information concerning your
computer or other Internet-access device by which such Site
Use is made and the nature and details of such Site Use. You
agree that such information may be acquired by MRCI without
notice to you and may be used without limitation for license
enforcement, monitoring of Site Use, and web site development.
You further agree that MRCI shall have no obligation to obtain
such system and computer information at any time.
Section 11. GOVERNMENT LIMITED RIGHTS IN DATA & RESTRICTED
RIGHTS IN COMPUTER PROGRAMS.
Any Site Use by an agency, department, or other entity of
the United States government and any use of the Materials
are limited and restricted in accordance with Federal Acquisition
Regulation §§ 12.211 and 12.212 and Defense Federal
Acquisition Regulation Supplement §§ 227.7102-1
and 227.7202-3. Site Use and use of the Materials by any agency,
department, or other entity of the United States government
is further restricted in accordance with the terms and conditions
of this License. This web site, any Site Use, and the Materials
are commercial. The contractor/manufacturer is Moran Research
and Consulting, Inc.
Section 12. GOVERNING LAW.
This License is made in the State of Texas, and the web site
and Materials are generally intended to be delivered by MRCI
from the State of Texas. THIS LICENSE SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE SUBSTANTIVE
LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO ITS CHOICE OF
LAW PROVISIONS, AND IN ACCORDANCE WITH U.S. FEDERAL LAW, IF
APPLICABLE, AS APPLIED BY ADJUDICATIVE ENTITIES HAVING JURISDICTION
OVER THE STATE OF TEXAS. THE PARTIES HERETO IRREVOCABLY CONSENT
TO THE PERSONAL JURISDICTION OF AND VENUE IN THE COURTS OF
THE STATE OF TEXAS LOCATED IN HARRIS COUNTY, TEXAS, AND OF
ANY FEDERAL COURTS LOCATED WITHIN HARRIS COUNTY, TEXAS, FOR
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS LICENSE, ANY SITE USE, ANY MATERIALS, OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HEREBY WAIVES
ANY RIGHT IT MAY HAVE TO PERSONAL SERVICE OF SUMMONS, COMPLAINT
OR OTHER PROCESS IN CONNECTION WITH ANY SUCH ACTION, AND AGREES
THAT SERVICE MAY BE MADE BY REGISTERED OR CERTIFIED MAIL.
The parties hereby agree that this License shall not be governed
by the United Nations Convention on Contracts for the International
Sale of Goods.
Section 13. ENTIRE AGREEMENT.
This License constitutes the entire agreement you and MRCI
with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, negotiations,
discussions, and communications (including but not limited
to advertising), whether oral or written.
Copyright © 2002 Moran Research and Consulting, Inc.
All rights reserved.
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