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 © 2014 Moran Research and Consulting, Inc. All rights reserved.