2. BINDING CONTRACT. By accessing or using any of the Site, including without limitation, the Content, you are acknowledging your acceptance of the terms and conditions set forth in this Agreement, as may be amended from time to time at our discretion, and thereafter a contract will exist between you and PhenoPath. PLEASE READ THIS AGREEMENT CAREFULLY. This is an Agreement between you, either individually or as an authorized representative of a single company, institution or entity, and us relating to access to the Site and use of any Content. By accessing our Site, you acknowledge that you are bound by the terms and conditions of this Agreement and our Privacy Statement.
4. NO CONFIDENTIAL INFORMATION. PhenoPath does not want to receive confidential or proprietary information from you through the Site, and any information sent to us will be deemed NOT to be confidential. By sending us any information or material, you grant us an unrestricted, royalty-free, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute those materials or information, and you also agree that we are free to use any ideas, concepts, know-how or techniques that you send us for any purpose.
5. CONTENT LICENSE.
b. Applicability of the Limited License. The limited license “Subscription” is the right for a single natural person to access and use the Site. The number of Subscriptions authorized under this Agreement (“Licensed Subscriptions”) is equal to the number of unique identification numbers we issue to you. Each Licensed Subscription (and its associated identification number) can be assigned to only one person at a time, and is not transferable from one individual to another except when an individual terminates employment with an entity which owns the Licensed Subscription. Only persons to whom Licensed Subscriptions (and associated identification numbers) are assigned can access and use the Site and the Content. If you are an entity user, you may assign Licensed Subscriptions (and associated identification numbers) only to your employees or paid consultants or agents (for use in conjunction with the work performed by such consultants or agents for you). Plug-ins and other executable files downloaded to you when you display or use the Content may be used following the end of the term, but only for the use of the person to which the Licensed Subscription was assigned as of the end of the license term, and if you are an entity user, then only if that person remains in your employ.
c. Restrictions. You may not: (a) sublicense, assign, transfer, distribute or rent any Content; (b) use, copy or modify any Content, in whole or in part, except as expressly permitted in this Agreement; (c) permit access to anyone but you, or permit persons other than the individuals to whom Licensed Subscriptions (and identification numbers) have been assigned, to access the Site or use the Content; (d) transfer this limited license from you to another individual, or, if you are an entity user, from one individual to another (except upon a termination of employment); (e) take any action designed to unlock or bypass any restrictions on the number of users or access to the Site and/or Content; or (f) access any of the Content after the end of the term. There are no implied licenses. You agree not to exceed the scope of the licenses granted herein. If the Content is acquired by or on behalf of a unit or agency of the United States government, it is agreed that the Content shall be deemed to be “commercial computer software” and that, absent a written statement to the contrary, the United States government unit’s or agency’s rights with respect to the Content are limited by the terms of this Agreement pursuant to FAR §12.212(a) and/or DFARS §227.7202-1(a), as applicable.
d. Ownership. Except for the license granted in this Agreement, all rights, title and interest in the Content is and will continue to be our exclusive property and other copyright proprietors identified therein and those claiming through such proprietors.
6. PERMITTED USE/PROPRIETARY RIGHTS GENERALLY. All Content available on the Site, including all Content provided by any third-party provider, is protected by copyrights, trademarks, service marks, patents, or other proprietary rights or laws, unless otherwise specified. You may not, without PhenoPath’s or the appropriate Content provider’s permission, download, copy, modify, display, or prepare derivative works based upon any Content on the Site. Any use, except for your personal non-commercial use, or editing, modification, reproduction, republication, distribution, assignment, sublicense, sale or creation of derivative works, of all or any portion of the Content viewed or accessed from the Site without our (or the applicable Content provider’s) express written permission is expressly prohibited. You may not copy, post, or upload any of the Content to an Internet website, any public or private bulletin board system, or any other electronic network or Internet service, nor may you post any links between the Site, and or any Content thereon, to any other website or location. By accessing the Site, you agree not to reproduce, retransmit, distribute, disseminate, display, sell, publish, broadcast or circulate any Content on the Site to anyone. All rights not expressly granted herein are hereby reserved.
You understand and agree that the Content available on the Site may contain valuable proprietary rights and that any unauthorized, unlicensed, or prohibited disclosure, distribution, copying, or use of any kind of this Content (“Unauthorized Use”) could result in substantial and irreparable harm to us and/or the respective Content providers. Any Unauthorized Use by you, or anyone under your control, will be deemed an infringement of the rights of PhenoPath or the respective Content provider, and will constitute damage to our reputation and goodwill. You agree to bear full responsibility for the consequences of any Unauthorized Use by you or anyone acting on your behalf, including without limitation, termination of your account, civil liability, and criminal prosecution. Notwithstanding any other remedies, you agree that we, or the appropriate Content provider, will be entitled as a matter of right, and without notice, to equitable relief by way of injunction or otherwise, in the event of any such Unauthorized Use by you.
You acknowledge our proprietary rights, including any and all copyrights and trademarks, in the PhenoPath name, logos and the Site (the “PhenoPath Property”), and the proprietary rights of its licensors in the Content, as applicable. PhenoPath Property includes the design, structure, sequence, organization, and look and feel of the Site, the database, listing, programming and transaction systems, and/or the arrangement, design, presentation and availability of the Content, where applicable, as well as the selection, arrangement and display of facts within the Content, and in subjective or discretionary information (if any) included by us with any Content. You agree not to violate, remove or alter any copyrights, trademarks or other intellectual property notices, if any, protecting the PhenoPath Property or any other Content contained on or provided through our Site. You agree to indemnify us for any and all costs and expenses (including attorneys’ fees) associated with any legal action brought by or against you with respect to the PhenoPath Property or the Content.
7. LICENSE OR INFRINGEMENT OF POSTED CONTENT. For Content an Author wishes to submit or make available for inclusion on the Site, each Author, (including you), agrees to grant us a perpetual, royalty-free, irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, sublicense, create derivative works from, transfer and sell such Content in any format either now known of or hereafter created, and, if desired, to use the Author’s name and other identifying information provided in connection with such Content. This license to us will continue indefinitely and will continue after termination of our relationship with you. We reserve the right, but not the obligation, to not post or remove posting for any reason whatsoever, without notification to the Author.
If you believe in good faith that any Content or other material posted on the Site infringes your copyright, please contact our agent for notice of claim of copyright infringement, at firstname.lastname@example.org. You must provide the following information, which we may then, but are not obligated to, forward to the alleged infringer: (a) a description of the material that you believe infringes your work with enough detail for us to locate it on the Site; (b) your address, telephone number, and email address; (c) a statement that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law, and the basis therefore; (d) a statement, under penalty of perjury, that (i) the information you are providing is accurate, and that (ii) you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner; and (e) your physical or electronic signature. Upon receiving your complaint, we may, but are not obligated to, remove the allegedly infringing content.
8. LINKING AND FRAMING PROHIBITED. You will not frame any page or portion of our Site or establish a link between our Site (or any Content on Site) and any other site, or permit anyone else to establish such a link, either to the home page or to any other page herein, without our prior written approval.
10. UNAUTHORIZED ACCESS OF THE SITE. Unauthorized access of the Site, including by entering or monitoring the Site on any level other than through the Registration/Home Page, is expressly prohibited.
You agree at all times not to use the Site in any manner:
a. (i) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, false or inaccurate, invasive of another’s privacy, hateful or racially, ethnically or otherwise objectionable; (ii) that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); or (iii) that infringes on any patent, trademark, trade secret, copyright or other proprietary rights of any other person or entity.
b. That would harm minors in any way;
c. To impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
d. To engage in any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation, or post any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software of hardware or telecommunications equipment;
e. That would interfere with or disrupt the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site;
f. That violates any applicable local, state, national or international law, intentionally or unintentionally;
g. To “stalk” or otherwise harass another; and/or
h. That would collect or store personal data about other users.
While we have the right to refuse to post or remove, edit or abridge any Content for any reason, we are otherwise not involved in the writing or decisions in the Content. As a result, we have no control over the quality, accuracy or legality of the Content or that any Content will meet your expectations or qualify for any continuing education credit. You are solely responsible to ensure that any Content meets the continuing education credits applicable to you and your certification. All Content posted on the Site is the sole responsibility of the person from whom such Content originated.
12. DISCLAIMER OF WARRANTIES. YOU UNDERSTAND THAT THE CONTENT IS NOT WARRANTED TO BE ERROR FREE, TO MEET YOUR PARTICULAR REQUIREMENTS OR EXPECTATIONS, OR TO WORK ON A PARTICULAR SOFTWARE OR HARDWARE CONFIGURATION. YOU AGREE THAT YOUR ACCESS TO, AND USE OF, THE SITE AND THE CONTENT AVAILABLE THEREIN IS ON AN “AS-IS,” “AS-AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND. PHENOPATH DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS, ANY PROMISES, REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SITE OR ITS USE OR OPERATION, OR THE USE, ACCURACY, VALIDITY, OPERATION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION OF THE CONTENT OR ANY SERVICES OR PRODUCTS OBTAINED FROM THE SITE OR ANY OTHER WEBSITES LINKED TO THIS SITE, OR ANY TRANSACTIONS ENTERED INTO THROUGH THIS SITE, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES OF ACCURACY, COMPLETENESS, TIMELINESS, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WHILE WE MAKE EVERY EFFORT TO MAKE SURE THE SITE IS ALWAYS AVAILABLE TO YOU, WE DO NOT GUARANTEE THAT THE SITE, CONTENT, SOFTWARE, MATERIALS OR PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE OF ERRORS, OR THAT ANY DEFECTS IN THE SITE, CONTENT, SOFTWARE, MATERIALS OR PRODUCTS WILL BE CORRECTED.
PHENOPATH CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT THE CONTENT, FILES, OR INFORMATION AVAILABLE ON OR FOR DOWNLOADING FROM THIS SITE WILL BE FREE FROM INFECTION, VIRUSES, WORMS, TROJAN HORSES OR OTHER CODES THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. YOU UNDERSTAND AND AGREE THAT ALL CONTENT, FILES OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THIS SITE IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT, FILES, OR INFORMATION.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR EXCLUSION OF CERTAIN WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. YOU ARE ENCOURAGED TO CHECK THE LAWS OF YOUR JURISDICTION.
13. LIMITATION OF LIABILITY. WE WILL NOT BE HELD RESPONSIBLE FOR ANY ERRORS, DEFECTS, LOST PROFITS OR OTHER CONSEQUENTIAL DAMAGES ARISING FROM THE USE OF THE SITE. IN NO EVENT SHALL PHENOPATH, ITS AFFILIATES, MANAGERS, OFFICERS, MEMBERS, EMPLOYEES, BUSINESS PARTNERS, AGENTS, REPRESENTATIVES, CLIENTS AND ANY OTHER AUTHORIZED AGENT OR REPRESENTATIVE OF PHENOPATH HAVE ANY LIABILITY FOR ANY CLAIM, LOSS OR INJURY, INCLUDING WITHOUT LIMITATION AN INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING ATTORNEYS’ FEES), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO PHENOPATH’S SERVICE, THE USE OR THE INABILITY TO USE THE SITE AND/OR ANY CONTENT, ANY CONTENT OR OTHER GOODS OR SERVICES PURCHASED, LICENSED, OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO BY MEANS OF OR THROUGH THE SITE, THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSION OR DATA, OR OTHER INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR ANY USER CONTENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS, EVEN IF PHENOPATH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF ANY NEGLIGENCE OF PHENOPATH OR ANY OF ITS AFFILIATES, REPRESENTATIVES OR AGENTS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OR ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FOR THE AVOIDANCE OF DOUBT, IN NO EVENT WILL PHENOPATH OR ITS LICENSORS’ LIABILITY ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE CONTENT, REGARDLESS OF THE FORM OF ACTION, EXCEED THE AMOUNT ACTUALLY PAID TO PHENOPATH, WHETHER ARISING IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE.
THESE LIMITATIONS OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF LIABILITIES OR DISCLAIMER OF IMPLIED WARRANTIES, SO THE ABOVE MAY OR MAY NOT APPLY TO YOU AS WRITTEN. YOU ARE ENCOURAGED TO CHECK THE LAWS OF YOUR JURISDICTION.
If you are a California resident, you waive any and all rights you may have under Section 1542 of the California Civil Code, which states: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
16. COVENANT NOT TO SUE. You hereby agree and covenant not to sue, and expressly waive any and all claims against PhenoPath and any of its affiliates for any claim that is released hereunder or for an amount in excess of the limitation of liability provided in this Agreement.
19. EXPORTATION. Notwithstanding the laws of any other jurisdiction, the Content may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations thereunder. Therefore, none of the Content or underlying information or technology may be displayed, downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, unless that exportation is authorized specifically by a special license issued to you at your sole cost and expense. By agreeing to the terms of this Agreement, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
20. GOVERNMENT USERS. This Agreement defines the rights of any United States Government user to the Site and the Content, except where contrary to law. In the event applicable law does not permit this license to define the rights of United States Government users, the Site and the Content is provided with RESTRICTED RIGHTS, and use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (a) (14) of the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause DFARS 252.227-7014 (JUN 1995), or subparagraphs (c) (1) and (2) of the Commercial Computer Software Restricted Rights clause, FAR 52.227-19 (JUN 1987). The manufacturer is PhenoPath. Unpublished-rights are reserved under the copyright laws of the United States.
21. ENTIRE AGREEMENT. This Agreement and the Privacy Statement are the entire and final agreement regarding the Site and the Content, and supersede any prior or contemporaneous communications between PhenoPath and you regarding the Site and the Content. You also may be subject to additional terms and conditions that may apply if you have a separate signed contract with PhenoPath or when you use affiliate services, third-party Content or third-party software, or visit another site linked by this Site. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
ANY FAILURE BY PHENOPATH TO EXERCISE OR ENFORCE ANY RIGHT OR PROVISION OF THIS AGREEMENT SHALL NOT CONSTITUTE A WAIVER OF SUCH RIGHT OR PROVISION UNLESS ACKNOWLEDGED AND AGREED BY PHENOPATH IN WRITING.
23. TERMINATION/MODIFICATION. We may terminate or modify this Agreement, with or without cause, at any time, without notice, and without penalty. The following provisions shall survive any termination of this Agreement: Binding Contract; General; Content License; Permitted Use/Proprietary Rights Generally; License or Infringement of Posted Content; Linking and Framing Prohibited; Unauthorized Access to the Site; Disclaimer of Warranties; Limitation of Liability; Indemnity; Release; Covenant Not to Sue; Permission Regarding Your Account Information; Jurisdiction and Choice of Law; Entire Agreement; Severability and Waiver; and Termination/Modification.
24. ENGLISH VERSION PREVAILS. In the event this Agreement is translated into other languages and there is a discrepancy between the two language versions, the English language version shall prevail to the extent that such discrepancy is the result of an error in translation.
Last Updated: November 8, 2012.