These are the terms and conditions applicable to the purchase and/or use of BebeVue and related products and services on a non-exclusive basis, including but not limited to downloading, purchases, APIs, web hosting, e-mail, site/patient registration and related support services, (collectively the "Service(s)") between you (the "Customer") and Nautilus Medical, Inc. ("NM"). If you do not agree to be legally bound by these terms and conditions, you may notify NM by email within five (5) (email@example.com) days of your order and the Service will be cancelled with no further obligation by either party. Failure to notify NM of cancellation within such period shall be deemed to indicate that you have read and understood these terms and conditions (the "Agreement") and agree to be bound by them.
Customer may elect to purchase additional products or services from NM, NM's partners and/or other third parties which may have their own terms and conditions and use agreements, aside from this Agreement. Those agreements will be presented to Customer at the time of purchase and/or account login and it is the Customer's obligation to review, accept and abide by those agreements as well as this Agreement. Terms and conditions for NM's products and services are considered as this agreement henceforth.
1. NM will provide Customer with its ultrasound imaging product and services, which includes an integrated set of tools, APIs, and retail offerings (such as printed gloss images of saved stills) the hosting of the Customer's images on a network server accessible by the Internet via an assigned Universal Resource Locator ("URL") domain name and the registration of the Customer's email along with patient ID. The Service includes but is not limited to access to the tools, storage, access, and registration for the Customer's use. Customer hereby grants to NM and its subcontractors the necessary rights and licenses with respect to such web site to carry out its undertaking under this Agreement and to make archival or back-up copies as deemed necessary by NM to supply said services.
2. Web image hosting service commencement is initiated on the basis of a recorded order verification and begins on the date that the Customer's order is placed.
3. Customer shall solely be responsible for their registration, including without limitation:
4. NM reserves the right to monitor the web site and terminate or suspend Service without notice if, in NM's sole discretion, the web site is intended to be used or is used by Customer in a manner that violates or may violate the following:
5. Customer will use the Service in a manner which does not interfere with or disrupt other users, services, or equipment, and NM reserves the right to terminate or suspend Service without notice if such interference is determined by NM to exist. Such interference or disruption includes, but is not limited to:
6. NM disclaims any responsibility for any content, goods, and services available through web site, or the quality or accuracy of any information in web site. NM will not endorse, warrant, or guarantee any product or service offered through web site, and will not be a party to or in any way monitor any transaction between Customer and third-party products or services or use of the web site, including, without limitation, all sales of goods or services, credit card transactions, banking or securities transactions, or any business, service, or merchandise agreements.
7. NM shall use reasonable commercial efforts to deliver Services professionally and on a timely basis. Customer shall inform NM, in writing, of any complaints or problem situations encountered as well as any special or unusual matters affecting the Services being provided.
8. NM's Services are provided on an "as is" basis. NM entire liability and Customer's exclusive remedy against NM for any failure of performance or nonperformance of any obligation under this Agreement shall be limited to a refund of amounts paid to NM for the Service. EXCEPT AS EXPRESSLY STATED HEREIN, CUSTOMER'S USE OF THE WEB SITE IS AT ITS OWN RISK AND NM DISCLAIMS ANY AND ALL WARRANTIES TO CUSTOMER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TRAFFIC, QUALITY OF RECEIVED PRODUCT, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
9. NM disclaims and shall not be liable for any other loss, injury, cost or damage suffered by Customer or any third party and shall in no event be liable for consequential, special, or indirect or incidental damages, including without limitation, damages for loss of profits, business interruption, or loss of data, or emotional stress and trauma, arising out of or in any way connected with the use of the web site and any information available on it, and the delay or inability to use the site or any information, even if NM has been advised of the possibility of such damages. These limitations and exclusions regarding damages apply even if any remedy fails.
10. NM will not be liable to any third parties for any direct, incidental, or consequential losses or damages suffered by such third parties for any reason, whether foreseeable or not, including, without limitation, damages for loss of profits, loss of income or earnings, loss of business opportunities, injury, or other loss or damage resulting directly or indirectly out of or in connection with the Customer's web site. The foregoing shall apply despite any negligence, misconduct, errors, or omissions by NM, including without limitation its employees, representatives, agents, or technical operations.
11. Customer agrees to defend, indemnify, and hold harmless NM and each of NM's officers, directors, employees, agents, or other partners and affiliates from, against, and in respect of: (i) any and all losses, damages or deficiencies resulting from any third party claim against NM in connection with Customer's web site (including, but not limited to, web site content) and (ii) all costs and expenses incident to any and all actions, suits, proceedings, claims, demands, assessments, or judgments in respect thereof regardless of the merit thereof, including NM's reasonable legal fees and expenses (whether incident to the foregoing or to NM's enforcement of said rights or defense and indemnity).
12. Notwithstanding any other term or condition of this Agreement, NM reserves the right to immediately suspend or terminate Service with or without notice to Customer if NM determines, in its sole discretion that Customer has failed to comply with any of its obligations in this Agreement.
13. As between Customer and NM, all direct and produced materials, images, photos, information, and other content used by Customer on the web site shall remain the sole and exclusive property of Customer. In addition, ownership interest to the web site shall be with BebeVue. Such ownership shall be limited to the actual web site and its underlying HTML script or coding, shall include any rights to NM's software, trade secrets, methodologies, processes, proprietary functions, know-how, and all intellectual property including all copyrights, trademarks, patents, and trade secrets related to NM's Services including other products or services, which shall remain the sole and exclusive property of NM and its suppliers, affiliates, partners, and licensors. Anyone using the website to obtain this protected information may be prosecuted by the laws giving such protection.
14. NM shall receive compensation as set forth in Schedule A which forms part of this Agreement. The compensation may be changed, from time to time, upon thirty (30) days notice. Customer shall pay for Services in advance. NM shall post all such changes on its web site. In addition, for changes to monthly ongoing payments, NM shall notify the Customer in advance. NM shall also notify Customer when yearly renewal fees are due.
15. Customer acknowledges, agrees and authorizes NM to automatically charge its credit card for successive terms of equal length as the initial subscription term, unless terminated or cancelled by either party as provided in section 18 of this agreement.
16. It is a violation of this Agreement for the Customer to misuse or fraudulently use credit cards, charge cards, electronic funds transfers, electronic cheques or other similar payment methods. NM shall have the sole discretion to determine if such misuse or fraudulent use has occurred.
17. Subject to termination as provided herein, the initial term of this Agreement shall commence on the date of this Agreement and shall continue in full force and effect for one year. The Agreement shall be automatically renewed for additional one year terms, provided neither party has terminated the Agreement. Customer may also elect to change the frequency of payments from yearly to monthly or vice versa.
18. Either party may terminate the Agreement on thirty (30) days written notice. In the event of termination, NM shall reimburse only the unused portion of the Services, on a pro-rata basis. Notwithstanding this, if Customer terminates the Agreement during the first ninety (90) days, NM shall refund the full purchase amount.
19. NM may amend these terms and conditions at any time by posting a revised version of the Agreement on its web site. The revised version will be effective at the time it is posted. In addition, if the revised version includes a substantial change, NM will provide Customer with thirty (30) days' prior notice of the change.
20. NM agrees that all confidential information ("Customer Confidential Information") communicated by Customer with respect to the Service is confidential. NM shall not disclose any Customer Confidential Information to any other person unless specifically authorized in writing by Customer to do so, except to the extent disclosure is required by law including subpoena or an order from a court of competent jurisdiction. NM shall use its best efforts to prevent inadvertent disclosure of any Customer Confidential Information to any third party.
21. Customer agrees that all documents, specifications, reports, templates, processes, software tools and all other information of whatever kind or nature that are related to the development of the web site (herein the "NM Confidential Information") are trade secrets of and having significant value to NM and are the intellectual property of NM. Customer shall not, at any time during or after the term of this Agreement, without NM's prior written consent, use, exploit, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the NM Confidential Information. Not included in the definition of "NM Confidential Information" is any information that can be observed by the public on the NM web site, prior to logging in.
22. Nothing contained in this Agreement shall be regarded or construed as creating any relationship (whether by way of agency, joint venture, association, or partnership) between the parties other than as an independent service contractor.
23. Neither party shall have the right or authority to assume or create any obligations or make any representations, warranties or commitments on behalf of the other party or to bind the other party in any respect whatsoever, nor shall he attempt to do so.
24. Any notification to the other party to this Agreement shall be deemed effective if sent by e-mail to the last known e-mail address of such party, or if faxed to the last known fax number, or if sent by first-class mail with sufficient postage attached addressed to the last known mailing address of such party.
25. Customer represents to NM that Customer is at least eighteen years old and is responsible for supervising the activities of any under-age user and is legally permitted to enter into this Agreement.
26. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor dispute, accidents, acts of war or terrorism, interruptions of communication, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or service or material required for such party to perform its obligations hereunder.
27. BebeVue or any of its affiliates or entities are not responsible for the quality, composition, integrity, or overall process of image acquisition at the point of care. The process of obtaining an ultrasound image or any other type of radiographic image is based upon the training, workflow, and process instituted by the specific provider of these types of services. Some of these processes may include the deletion of images from the acquisition unit. Other issues that may arise are power failures, lack of multi-frame capture (video clip), substitute sonographer, decision of patient not to be provided service, and any other acts of personnel, equipment problems, or act of god. The BebeVue promise of customer satisfaction does not extend beyond and is limited to the service fees charged, if any.
28. This is the entire agreement between the parties relating to this matter and supersedes any prior agreements whether written or oral. A party may change the address set forth herein by proper notice to the other. If any provision of this Agreement, or application of such provision to any person or in any circumstance, shall be determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement, and the application of such provision to any person or in any circumstance other than that to which it is held to be invalid, illegal or unenforceable, shall not be affected thereby. This Agreement shall not be assignable by the Customer without prior written consent of NM. This Agreement shall be binding upon the Customer's successors and assigns and shall endure to the benefit of any successors and assigns of the Customer. This Agreement shall be governed by the laws of the State of Illinois and the Federal laws of United States Federal court where applicable therein. The parties declare that they have required that this Agreement and any related documents be drawn in the English language only.