This Agreement ("Agreement"), effective as the registration date ("Effective Date"), is by and between The Biologic Association LLC, Inc.("The Biologic Association LLC") and the registering physician ("User",as defined below).
1. Definitions. As used in this Agreement:
THE BIOLOGIC ASSOCIATION
END USER LICENSE AGREEMENT
IMPORTANT: READ THIS LICENSE CAREFULLY. BY CLICKING ON THE “ACCEPT” BUTTON YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS END USER LICENSE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE, CLICK ON THE “CANCEL” BUTTON.
This License Agreement (“Agreement”) is a legal agreement between you the registering physician (“User”) and The Biologic Association, LLC, an Ohio limited liability company with its principal place of business at 11312 East Greenway Road, Scottsdale, Arizona 85255 (“BA”), made and entered into as of the date User accepts the terms and conditions of this Agreement (the “Effective Date”), concerning your use of BA’s online site currently accessible at thebiologicsalliance.net. User and BA hereby agree to bound by the following terms and conditions:
1. Definitions. As used in this Agreement the following terms will have the meanings listed below.
"Content" means the audio and visual information, documents, software, products and services contained or made available to User in the course of using the Service.
"Customer Data" means any data, information or material provided or submitted by User to the Service in the course of using the Service.
"BA Technology" means all of BA’s technology made available to User by BA in providing the Service (including, without limitation, all software, products, processes, algorithms, user interfaces, techniques, designs and other tangible or intangible technical material or information) and all Intellectual Property Rights relating thereto.
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights and derivatives thereof anywhere in the world.
"Medical Consultation" means providing medical opinions in the context of a professional relationship with another physician upon which consultation the consulting physician may rely in providing professional services to a patient or patients.
"Participant" means any physician or medical professional who provides or posts any information using the Service. A Participant may also be a User, as defined below.
"Practice of Medicine" means holding one's self out to the public as being able to diagnose, treat, prescribe for, palliate, or prevent any human disease, ailment, pain, injury, deformity, or physical or mental condition, whether by the use of drugs, surgery manipulation, electricity, or any physical, mechanical, or other means whatsoever.
"Professional Services" mean services provided to any member of the public in a professional capacity or under the auspices of being performed by a member of a profession within the fields encompassed by the profession, including the Practice of Medicine.
"Service" means providing Users with access to the Content via BA’s online site, currently known as The Biologic Association and which is accessible at thebiologicsalliance.net, and all ancillary services rendered to User by BA, or to which User is being granted access under this Agreement.
"User" means you upon acceptance of the Terms and Condition of this Agreement, which acceptance is a condition precedent to any use of the Service.
2. Use of Service.
(a) For Educational Use Only; No Medical Diagnoses. BA and each Participant are not providing an actual medical examination, diagnosis, or treatment. User acknowledges and agrees that (i) the Service and all information obtained from a User’s use of the Service is for educational and general discussion purposes only, (ii) they have an independent duty of examination, diagnosis and treatment with respect to their patients and (iii) opinions expressed through the Service are those of individual authors only, not of BA or any of its members, officers, managers, employees or affiliated entities.
(b) No Medical Consultation; No Practice of Medicine. User acknowledges and agrees that (i) any information provided by BA and/or any Participant through the Service does not constitute and may not be relied upon as a Medical Consultation, the Practice of Medicine, or Professional Services and (ii) no monetary compensation will be exchanged between Users and any Participant in connection with the use of the Service.
(c) No Patient/Physician Relationship. Obtaining or using information from the Service or otherwise participating in the Service shall not create a patient/physician relationship between any patient of User and BA or any other Participant.
(d) No Standards of Care Created. User acknowledges and agrees that postings shall not be construed as establishing or stating standards of care applicable to a particular patient. User and Participants recognize that they have an independent duty of examination, diagnosis, and treatment, and cannot base medical decisions upon postings on the Service, which are for educational purposes only. Participants will not represent to anyone that any information posted by any Participants or BA constitutes a Medical Consultation or statement as to particular medical standards of care.
(e) No Responsibility for Use of Medical Devices. User is solely responsible for the use of medical devices described or discussed on the Service, including any "off-label" use. BA does not make any representations or warranties regarding any such “off label” use. User acknowledges and agrees that they are solely responsible for making all medical decisions with respect to the use of specific medical devices, and will indemnify and hold BA, its officers, employees, members, managers and affiliates and each other Participant harmless from any damages, liabilities, costs or expenses that they may incur as a result of, or arising from, such use.
(f) User Status. User represents and warrants to BA that they are 18 or older and (i) a Board Certified or Board Eligible physician or a staff member at a Board Certified or Board Eligible physician who is a registered User, (ii) a medical student at a United States accredited medical school, (iii) a corporate sponsor of the Service or an authorized agent, including, without limitation, an employee or sales agent, of such sponsor, or (iv) a member of the American Podiatric Medical Association or a staff member or a member of the American Podiatric Medical Association who is a registered User. Each User will cease using the Service immediately if they cease to be a member of any of the foregoing.
3. License Grants & Restrictions. Subject to the terms and conditions contained in this Agreement, BA grants solely to User only a non-exclusive, non-transferable, non-sublicensable license for the term of this Agreement to access and use the Service via the Internet for their own educational purposes. Except as expressly authorized by this Agreement, User will not himself or herself, nor through any parent, subsidiary, affiliate, or third party:
(a) Copy, modify, publish, display or transmit any of the Content or create derivative works based upon the Service;
(b) Decompile, disassemble, or reverse engineer the BA Technology in whole or in part;
(c) Defeat, disable or circumvent any protection mechanism related to the BA Technology;
(d) Sell, license, sublicense, lease, rent, or distribute to any third party, or disclose, permit access to, or transfer to any third party, any portion of the Content or the Service;
(e) Frame or utilize framing techniques to enclose any of the Content; or
(f) Export, access or use of the Service in violation of any U.S. Department of Commerce export administration regulations or other applicable laws or regulations.
4. Privacy & Security. BA’s privacy and security policies are incorporated herein by reference upon User's review and acknowledgement, may be viewed at http://thebiologicsalliance.net.
5. Protected Health Information. Each User is prohibited from disclosing any . “Protected Health Information” (as defined in the Health Insurance Portability Act) on the Service. Accordingly, each User must remove all Protected Health Information from any postings to the Service, including, without limitation, by covering over any such information prior to uploading any images to the Service. Notwithstanding the foregoing, BA takes privacy and confidentiality laws and policies seriously and it will investigate any Protected Health Information that it learns has nonetheless been posted on the Service.
6. User Responsibilities. User will be able to access the Service solely through a user identification and a password (together, a “Password”) that will be issued to the User by BA. USER IS RESPONSIBLE FOR KEEPING THEIR PASSWORD STRICTLY CONFIDENTIAL AND TAKING OTHER REASONABLE PRECAUTIONS TO PREVENT ITS UNAUTHORIZED USE. User will notify BA promptly of any unauthorized use of their Password of which they becomes aware. Until User notifies BA in writing that a Password is being used improperly, BA will presume that all use of the Service using a Password is authorized by User, and User will remain liable for any damages or losses that are caused by access to the Service using such Password. A Password may be cancelled or suspended at any time for any breach of this Agreement. User is solely responsible for complying with all applicable laws, and regulations relating to User's use of the Service, including those related to the Practice of Medicine, privacy and security of medical information, protection of intellectual property, data privacy, international communications and the transmission of technical or personal data. Upon learning of any unauthorized possession or use of or access to the Service or any of the Content, User will notify BA immediately, will promptly furnish BA with details of such occurrence, will reasonably assist BA in preventing any recurrence, and will reasonably cooperate with BA, at the expense of BA, in any litigation or other proceedings undertaken to protect the rights of BA.
User is responsible for obtaining and maintaining any equipment and ancillary services needed to access the Service via the Internet (collectively, "Equipment"). User shall be responsible for ensuring that such Equipment is compatible with the Service. User shall also be responsible for the use, and maintaining the security, of the Equipment.
As a condition to User's use of the Service, User agrees not to:
(a) upload, post, email, transmit or otherwise make available any information, materials or other content that is libelous, harmful, threatening, abusive, harassing, defamatory, obscene, pornographic, offensive, invades another's privacy, promotes bigotry, racism, hatred or harm against any individual or group or otherwise violates any law;
(b) impersonate any person or entity or falsely state or otherwise misrepresent User's affiliation with a person or entity;
(c) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
(d) upload, post, email, transmit or otherwise make available any information, materials or other content that User knows to infringe another's rights, including any intellectual property rights;
(e) upload, post, email, transmit or otherwise make available 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 or hardware or telecommunications equipment;
(f) interfere with or disrupt this web site or the Service, or any servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(g) obtain, collect, store or modify the personal information about other Users;
(h) make any representations or claims to any third party about the Services that are inconsistent with, or a contradiction of, any of the terms and conditions of this Agreement, including, without limitation, the terms and conditions of Section 2; or
(i) use the Forum in a commercial manner, to send “spam”, solicit funds or advertise or solicit goods or services.
BA reserves the right to investigate and prosecute violations of any term of this Agreement to the fullest extent of the law. User acknowledges and agrees that BA has no obligation to pre-screen or monitor User's access to or use of the Service or any information, materials or other content provided or made available through the Service, but BA has the right to do so for the purpose of operating the Service, to ensure User's compliance with this Agreement, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. BA may, in the exercise of BA’s sole discretion, remove or delete any postings, information, materials or other content that violates this Agreement or that is otherwise objectionable; provided, that BA provides notice to User of such deletion or removal.
7. Fees. As consideration for the Services to be provided under this Agreement, User shall pay BA the fees set forth in this Agreement or otherwise set-forth at any time by BA upon registration or log-in to the Service.
8. User Data. In the course of using the Service, User may submit data, information or material ("Customer Data"). As between User and BA, User shall remain the sole owner of all Customer Data; provided, however, that User hereby grants to BA a non-exclusive, worldwide right to use, copy, distribute, display, disclose and perform such Customer Data and sublicense such rights, solely in connection with BA's operation of the Service, and subject to the terms and conditions of this Agreement. User, not BA, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and BA shall not be responsible or liable for the deletion, accuracy, correction, disclosure, destruction, damage, loss or failure to store any Customer Data.
9. Intellectual Property Ownership. Except for the rights expressly granted to User in this Agreement, this Agreement does not transfer to User any right, title, or interest in or to any portion of the Service or any of the Intellectual Property Rights relating thereto. User acknowledges that BA retains sole and exclusive right, title and interest to all aspects of the Service, including, without limitation, all Intellectual Property Rights relating thereto.
10. Term and Termination. This Agreement shall take effect on the Effective Date and will continue in effect for one (1) year and may be renewed for an additional one (1) year period by mutual agreement of the parties. Either party may terminate this Agreement immediately by providing the other party written notice to such effect, if the other party breaches any of its obligations under this Agreement, which breach is not remedied within thirty (30) days following written notice to such breaching party; provided, however, that BA may terminate this Agreement immediately by providing User with written notice to such effect if User breaches any of the terms of Sections 3, 6 or 18. The terms of Sections 2, 6, 8, 9, 11, 12, 13, 15, 16, 17, 18 and 22.
11. Disclaimer of Warranties. THE SERVICE AND ALL CONTENT IS PROVIDED TO USER STRICTLY ON AN "AS IS" BASIS. ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY BA. BA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. BA DOES NOT REPRESENT OR WARRANT THAT (I) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE SERVICE WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS, (III) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY USER THROUGH THE SERVICE WILL MEET USER'S REQUIREMENTS OR EXPECTATIONS, (V) ANY ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED, OR (VI) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
User acknowledges that the Service may be temporarily unavailable for scheduled maintenance or for unscheduled maintenance, either by BA or by third-party providers, or because of other causes beyond BA's reasonable control. BA will not be liable for any such unavailability.
Do Not Rely on Information Provided Through the Service: User agrees and understands that information provided by BA or any Participant or taken from use of the Service does not constitute, and may not be construed as, Medical Consultation, the provision of Professional Services or the Practice of Medicine and User covenants that User will not rely upon any information so obtained as resulting from Medical Consultation, the provision of Professional Services or the Practice of Medicine. User agrees to not represent to anyone that information learned from the website constitutes a Medical Consultation. BA shall have no duty to insure the accuracy or appropriateness of any information on the Service.
12. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY FOR ALL CLAIMS RELATED TO THE SERVICE OR THIS AGREEMENT (WHETHER UNDER THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) EXCEED THE AMOUNTS ACTUALLY PAID BY USER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
13. Disclaimer of Incidental and Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, FOR ANY CONTENT OBTAINED, DIRECTLY OR INDIRECTLY THROUGH A THIRD PARTY LINK, FROM OR THROUGH THE SERVICE, OR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION IN THE CONTENT, REGARDLESS OF CAUSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BA makes no representation that the Service is appropriate or available for use in locations other than the United States. If User uses the Service from outside the United States, User is solely responsible for complying with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited.
14. Assignment. This Agreement may not be assigned by User without the prior written consent of BA, whether by operation of law or otherwise. Any purported assignment in violation of this Section shall be void. BA shall be entitled to assign its rights under this Agreement without having to obtain the consent of User. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
15. No Legal Duty to User. BA and Participants have no legal duty to User or other recipient of Service information, or to third parties or entities, including patients of Participants or User.
16. Agreement Not to Assert Claims Against BA or Participants; Waiver of Claims. User, on behalf of themselves and their successors and assigns, will not assert against BA, or any other Participants, any legal claims, demand, or actions, however described, in law or in equity relating to, or arising out of, the use of the Service.
17. Indemnification of BA and Participants. User will defend, indemnify and hold BA, its officers, employees, members, agents, licensors, suppliers and its Participants harmless from and against any claims, actions or demands, liabilities and settlements, including without limitation, reasonable legal, accounting and expert fees, arising or resulting from, or alleged to result from, User's breach of any of the terms of this Agreement or their use of the Service, including information or advice obtained from use of the Service, in the Practice of Medicine and/or in providing Medical Consultation; provided, BA provides notice to User within a reasonable time of any such claim, suit or proceeding and shall reasonably cooperate with User, at User’s expense, in the defense of any such claim, suit or proceeding.
18. Confidentiality.
(a) User agrees that the “Confidential Information” (as defined below) of BA will be held in confidence to the same extent and the same manner as User protects its own Confidential Information but in no event will less than reasonable care be used. User further agrees not to use any of the Confidential Information for its own benefit (except as specifically provided herein) or the benefit of any third party. User will use all reasonable steps to ensure that BA’s Confidential Information received under this Agreement is not disclosed in violation of this paragraph. “Confidential Information” means: the terms of this Agreement, except as otherwise specifically provided in this Agreement; BA’s trade secrets, including but not limited to, financial information, processes, formulas, specifications, programs, instructions, source code, technical know-how, methods and procedures for operations, benchmark test results, information about employees, customers, marketing strategies, services, business or technical plans and proposals, in any form; and any other information relating to BA that is not generally known to the public at large.
(b) Confidential Information shall not include information that: (i) is or becomes generally known or available to the public at large through no act or omission of User; (ii) can be demonstrated to have been available lawfully to User prior to the disclosure or had thereafter been furnished to User without restrictions to disclosure or use; (iii) can be demonstrated to be independently developed by User without use of any Confidential Information and such independent development is proven on the basis of User’s records related to such development; or (iv) is required to be disclosed by a court order or other governmental action.
(c) User agrees that disclosure of any Confidential Information will give rise to irreparable injury to BA, and that such injury is not adequately compensable in damages. Accordingly, BA may seek and obtain injunctive relief against the breach or threatened breach of this Section, in addition to any other legal remedies which may be available.
19. Links to Other Sites. As a convenience to Users, the Service may include links to websites operated by parties other than BA. BA has no control over and accepts no responsibility for the content or performance of non-BA sites, and a link to such a site does not mean that BA endorses or makes any representations about that site, its performance, its content, its owner, or its owner's products or services.
20. Forums. Users are welcome to post, transmit or submit messages and other materials (collectively "Messages") to any message board, bulletin board, chat room, or similar interactive service or public area made available within, or in connection with, the Service (collectively "Forums"). BA is not responsible for the content of any Message. Whether or not BA modifies or removes any Messages, each User remains solely responsible for the content of their Messages. Each User will also bear all risk associated with reading or acting on any Message or other Content made available through the Service. BA reserves the right to terminate or restrict a User’s ability to post Messages to any or all Forums or to access the Service and the right to edit, remove, or restrict access to a User’s Messages. If at any time User is dissatisfied with any act or omission in connection with their own Messages, the Messages of others, or the operation of the Forums or the Service, a User’s sole remedy is to cease use of the Forums and/or the Service. User will indemnify and hold BA, its officers, employees, members, managers and affiliates harmless from any damages, liabilities, costs or expenses that they may incur as a result of, or arising from, User’s Messages.
21. Copyright Complaints. BA respects the intellectual property rights of others, and require that Users do the same. In appropriate circumstances, BA will terminate the registration of any User who is responsible for acts of copyright infringement.
The designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act is Steven C. Karzmer, 21 E. State Street, Columbus, Ohio 43215; Email address is skarzmer@calfee.com; Telephone number is 614.621.7013.
22. General. This Agreement shall be governed by and interpreted under the law of the State of Ohio, exclusive of its choice of law and conflict of law principles, and controlling United States federal law, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Columbus, Ohio. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between User and BA as a result of this agreement or use of the Service. The failure of BA to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by BA in writing. This Agreement comprises the entire agreement between User and BA with respect to User's use of the Service and supersedes all prior or contemporaneous negotiations, discussions, terms and conditions or agreements, whether written, oral or online, between the parties regarding the subject matter contained herein. No modification, waiver or amendment of this Agreement will be valid unless in writing and signed by both parties.