ViewMedica Streaming Terms of Service
LICENSE AGREEMENT FOR VIEWMEDICA STREAMING SERVICES
IMPORTANT: PLEASE READ THIS TERMS OF SERVICE AGREEMENT CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICES (AS DEFINED BELOW). BY ACCESSING OR USING ANY OF THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES.
"Agreement" means these Terms of Service together with the Privacy Statement as provided to you on the ViewMedica website, as amended from time to time by ViewMedica’s Publisher.
"Feedback" has the meaning set forth in Section 11.
"Renewal Term" has the meaning set forth in Section 7.
"Service(s)” means the ViewMedica Service or Services to which you are granted access under this Agreement. ViewMedica On-Demand and VMcast waiting room TV are the streaming Services covered by this agreement. Services that include the streaming functionality of ViewMedica Applications are also covered by this agreement.
"Term" has the meaning set forth in Section 7.
"Trial Period" means a short term period during which the Services are provided to you for evaluation, prior to entering into a longer term subscription.
“Publisher” means Swarm Interactive, Inc. and its successors and assigns.
“Provider” means the Publisher or the Publisher-approved distributer that you pay to receive the Service(s).
"ViewMedica Application(s)” means the ViewMedica On-Demand player, computer applications or apps created by the Publisher for viewing Your Content and or ViewMedica Licensed Content. It also includes any related text, images, administration services and documentation for those applications.
“ViewMedica Licensed Content" means all information, data, text, software, music, sound, photographs, graphics, audio or video files, messages or other materials uploaded, owned or licensed by the Publisher, posted or stored by the Publisher, and furnished to you under the terms of this Agreement.
"we" "our" or "us" means the Publisher, the Provider, and their successors and assigns.
"you" or "your" means you, as the end user of the Services, whether you are a natural person, sole proprietorship, partnership, limited liability company, corporation or other legal entity.
“Your Content" means all information, data, text, software, music, sound, photographs, graphics, audio or video files, messages or other materials that you upload, or post, or store using the ViewMedica Application(s) or Service(s).
2. Governing Terms. Thank you for selecting the Services offered by the Publisher. This Agreement governs your use of Services, and constitutes a legally binding agreement between you and us. By accessing or using the Services, or by executing and submitting a credit card or pay-by-check billing authorization, you indicate that you understand and agree to this Agreement. If you do not agree to this Agreement, you are not granted any rights to access or use the Services, and you will not be able to access or use the Services. Your access to or use of any Services may also be subject to your acceptance of separate agreements with the Publisher, Provider and/or third parties. This Agreement incorporates by reference applicable program, subscription, activation, ordering and pricing terms provided to you online or offline for the Services selected by you and for other Publisher and Provider services made available to you through these Services, which may be subject to change from time to time. This Agreement will also govern your continued purchase and use of the Services, including such additional services made available to you through the Services that you have selected.
3. Use and Restrictions. Subject to the terms of this Agreement and prompt receipt by the Provider of all applicable payments when due, the Publisher grants you a single use, limited, revocable, non-exclusive, non-transferable license, during the initial term of your subscription and any applicable Renewal Term or other period of use provided in this Agreement, to access and use the Services, solely for the purpose described in the ViewMedica description for such Services. No other, further or different licensed use is granted, and no rights are transferred or assigned by the Publisher to you. We reserve all rights not expressly granted herein.
We may, from time to time, establish general practices and limits concerning the use of the Services, including without limitation, (a) maximum limits on bandwidth usage that will be allotted to you, (b) maximum limits on storage space, and (c) maximum time limitations for the retention of Your Content following a Trial Period or account cancellation.
Except as expressly permitted herein, you must not do, nor allow or assist any third party in doing, any of the following:
• License, sublicense, copy, assign, lease, loan, sell, resell, republish, upload, post, transfer, or distribute the Services or the ViewMedica Licensed Content to any third party;
• Modify or create derivative works based in whole or in part on the Services or the ViewMedica Licensed Content;
• Access or attempt to access any other Publisher systems, programs, features, ViewMedica Licensed Content or data that are not made available in the Services or for public use by the Publisher;
• Decompile, disassemble, debug, or reverse engineer the Services or the ViewMedica Licensed Content.
• Interfere with the proper working of the Services, prevent access to or the use of the Services or the ViewMedica Licensed Content by other licensees or customers, or impose an unreasonable or disproportionately large load upon the Publisher’s infrastructure.
• Use the Services, including any ViewMedica Licensed Content, for any purpose that is unlawful or prohibited by this Agreement.
If you violate any of these terms, your permission to use the Services terminates automatically, with immediate effect.
5. Fees & Taxes. All payments must be made in U.S. dollars. Other currencies may be used with prior approval of your Provider. Access to the Services will begin for paid versions after your acceptance of this Agreement and after we receive and processes all of the applicable information, including the payment information acceptable to your Provider. The payment information you provide must be accurate, current and complete, and you agree to notify your Provider promptly of any change in the payment information. When you subscribe and provide payment information, your card or bank account will be charged or debited, and will be automatically charged or debited again at the beginning of each applicable monthly or one-year subscription term at the then-current subscription rate to maintain access to the Services. Cancellation and renewal terms may be supplemented by program terms provided to you in writing or on the Publisher’s website for the Services you have selected.
You will pay or reimburse your Provider for all sales, use, transfer, privilege, excise and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by the Provider under this Agreement; excluding, however, income taxes on profits which may be levied against the Provider.
6. Trial Period. If you registered for a Trial Period, you will have the entire Trial Period within which to purchase the Services you are using in order to retain any of Your Content that you have posted, uploaded or set through the Services during the Trial Period. IF YOU HAVE NOT PURCHASED OR SUBSCRIBED TO THE SERVICES BY THE END OF THE TRIAL PERIOD, THE SERVICES WILL BE CANCELLED AND ALL OF YOUR CONTENT MAY BE DELETED. Access to the Services will begin for a defined Trial Period after your acceptance of this Agreement and after we receive and processes all of the information requested in the registration process.
7. Term And Renewal Term. Unless terminated earlier as expressly provided herein, the initial term of this Agreement shall be for a period of one (1) year commencing as of the date of your acceptance of the Agreement (when you created and saved your account preferences or by commencing use or access to the Services), or, if you registered for a Trial Period, immediately after the Trial Period ends and you subscribe to or pay for further Services (the "Term"). After the initial Term, this Agreement shall be automatically renewed for successive one (1) year periods ("Renewal Term") until the Agreement is otherwise terminated as expressly provided herein.
8. Cancellation And Termination. We reserve the right to terminate all or any of the Services for any reason or no reason at all, with or without notice to you. If you or the Publisher or Provider cancel the Services, cancellation will immediately stop all Services. You will no longer have access to the Services and all associated information and Your Content may be deleted by us.
We are not responsible for any damages to you if the Services are canceled and we delete information and/or Your Content. BY YOUR USE OF THE SERVICES YOU UNDERSTAND AND AGREE THAT AFTER CANCELLATION, YOU MAY NOT BE ABLE TO CONTINUE TO ACCESS AND/OR USE SUCH SERVICES OR ANY INFORMATION OR YOUR CONTENT THAT YOU HAVE FURNISHED IN CONNECTION WITH ACCESSING OR USING SUCH SERVICES. ALL VIEWMEDICA SERVICES WILL IMMEDIATELY STOP. YOU AGREE TO REMOVE FROM YOUR WEBSITE ANY TEXT AND IMAGES GENERATED FROM VIEWMEDICA LICENSED CONTENT OR SUPPLIED BY US.
Subject to the following, you may request cancellation of the Services at any time. To request cancellation, contact your Provider. Provider reserves the right to collect fees, surcharges or costs incurred before you cancel your Services. To process any cancellation request you may need: (a) the exact name of the Services that you would like to cancel; (b) your username and password; (c) your email address; (e) your billing information, including the credit card number that was used when purchasing the Services; and (f) your reasons for canceling the Services.
10. Security. You are responsible for maintaining the security of your account, and you are fully and solely responsible for all activities that occur under the account. You agree to immediately notify the Publisher in writing of any unauthorized uses of the account or any other breaches of security. We cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will the Publisher or Provider be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
11. Feedback. We may provide you with a mechanism to provide feedback, suggestions and ideas, if you choose, about its services ("Feedback"). You agree that We may, in our sole discretion, use the Feedback you provide to us in any way, including in future modifications of the Services, ViewMedica Licensed Content and/or advertising, marketing and promotional materials relating thereto. You hereby grant us a perpetual, worldwide, fully transferable, sublicenseable, non-revocable, fully paid-up, royalty free license to use, modify, create derivative works from, distribute, display and otherwise exploit any information you provide to us in the Feedback.
12. Reservation Of Rights And Ownership. The Services and the ViewMedica Licensed Content are licensed not sold, and we reserve all rights not expressly granted to you in this Agreement. The Services and ViewMedica Licensed Content are protected by copyright, trade secret and other intellectual property laws. The Publisher and its licensors, where applicable, own all right, title and interest in and to the Services and ViewMedica Licensed Content (and all intellectual property rights therein), including but not limited to its technology, content, derivatives, and modifications of the Services or ViewMedica Licensed Content by whomever made. We do not grant any license or other authorization to any user of its branding, trademarks, service marks, or other copyrightable material or other intellectual property.
13. Your Content. You are solely responsible and liable for any and all of Your Content uploaded, posted or stored by you using the Services. You shall not use the Services for any illegal purpose in violation of any local, state, federal or international law. You must evaluate and bear all risks associated with, the accuracy, completeness or usefulness of any ViewMedica Licensed Content and Your Content in use. We reserve the right to remove Your Content which is deemed in the Publisher’s sole discretion harmful, offensive, or otherwise in violation of the terms or any rules or policies we have in place at the time. Without limiting the foregoing, and without limiting any other remedies, we may limit, suspend, or terminate access and use of your site or the Services, and terminate your account, prohibit access to your site, remove Your Content that is hosted, and take technical and legal steps to keep any user or groups of users from accessing the Services if we think that such user(s) or any of Your Content is creating problems, possible legal liabilities, or acting inconsistently with the letter or spirit of this Agreement or our policies. The following are common examples of violations that may result in immediate removal, warning, sanction, account termination, or suspension of the Services:
• Posting any information, software or other materials or content which is protected by copyright, or other proprietary right, or derivative works with respect thereto, without obtaining permission of the copyright owner or right holder;
• Advocating or proposing illegal activity or discussing an intent to commit an illegal act;
• Posting any content or data to impersonate other individuals or falsely represent your identity or qualifications, or that constitutes a breach of any individual's privacy, including posting images of children or any third party without their consent (or a parent's consent in the case of a minor), and including posting another individual's contact information without their permission.
• Posting any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, inappropriate or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or foreign law;
• Seeking to exploit or harm children by exposing them to inappropriate content, asking for personally identifiable information or the like;
• Impersonating or misrepresenting your connection to any other entity or person or otherwise manipulating headers or identifiers to disguise the origin of Your Content;
• Impersonating or attempting to impersonate the Publisher’s staff or other users;
• Posting any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes or other unsolicited commercial communication (except as otherwise expressly permitted by us) or engaging in spamming, phishing or flooding;
• Encouraging others to violate the Publisher’s policies or this Agreement;
• Charging fees or other consideration for access to or use of the ViewMedica Licensed Content, or permitting users to download and save any ViewMedica Licensed Content;
• Submitting any content or programs that contain viruses, worms and/or Trojan horses or any other computer code, files or programs designed to interrupt, redirect, destroy or limit the functionality of any computer software or hardware or telecommunications;
• Posting any information containing hyper-links to other sites that contain content that otherwise violates this Agreement; or
• Refusing to follow the Publisher’s staff instructions.
We do not own and are not responsible for Your Content or data you submit. You are encouraged to archive your information and Your Content regularly and frequently and you bear full responsibility for archiving your information and Your Content and sole liability for any lost or irrecoverable information or Your Content.
You agree to defend, indemnify and hold the Publisher, its Suppliers, Provider, and their respective corporate affiliates, officers, directors, employees, subsidiaries and agents, harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys fees) resulting from or arising out of a claim that Your Content infringes or misappropriates the intellectual property rights, or otherwise violates any other right, of a third party or a claim resulting from or arising out of your breach or alleged breach of this Agreement.
You agree that the Publisher has the right (but not the obligation) to monitor the Services and Your Content from time to time and to disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request, to operate the Services properly, or to protect itself or its users. We will not intentionally disclose any private email message unless required by law.
14. ViewMedica Uses and Restrictions. (a) This License allows you to use the ViewMedica Service only in the Publisher- and Provider-approved facility or approved website and only via the Provider-supplied ViewMedica Application(s) for which you have paid applicable fees to Provider. ViewMedica is licensed, not sold, to you by the Publisher for use only under the terms of this License. The terms of this License will govern any ViewMedica Application upgrades provided by the Publisher that replace and/or supplement the original ViewMedica Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern your use of that application. (b) You may not copy, in whole or in part, decompile, reverse engineer, disassemble, modify, or create derivative works of the ViewMedica Applications. (c) This License does not allow for the display of the ViewMedica Licensed Content on any sites or within any facility other than sites and facilities approved by the Publisher and Provider. This License does not allow for the display or distribution of ViewMedica Licensed Content in any other manner without the written consent of the Publisher and Provider. (d) You may not rent, lease, lend, redistribute or sublicense the player or ViewMedica Licensed Content. This License is not transferable without the written consent of the Publisher. (e) The Service is a monthly service that may be canceled by you or by the Publisher or Provider.
15. Third Party Products. In connection with your use of the Services, you may be made aware of services, products, offers and promotions provided by third parties who are not affiliated with us ("Third Party Products"). If you decide to use any Third Party Products, you do so at your own risk and are responsible for reviewing the terms governing such Third Party Products. You authorize us to use and disclose your contact information, including name and address, for the purpose of making the Third Party Products you choose available to you. You agree that the third party, and not the Publisher or Provider, is responsible for the performance of the Third Party Products. The Services may contain or reference links to websites operated by third parties ("Third Party Websites"). We are not responsible for the content of, nor any link contained in such Third Party Websites. The inclusion of any Third Party Website link in the Services is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by us of any data contained in, or services made available through any Third Party Website. You acknowledge that linked Third Party Websites may contain terms and privacy policies that are different from those we use. We expressly disclaims any liability for use of such Third Party Products and Third Party Websites.
16. Representations and Warranties. Each party hereby represents and warrants to the other party that: (a) It has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (b) the execution of this Agreement, and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound.
17. Warranty Disclaimers. THE SERVICES AND THE VIEWMEDICA LICENSED CONTENT ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. You expressly acknowledge and agree that use of ViewMedica Service(s), ViewMedica Application(s), ViewMedica Licensed Content, and Your Content is at your own risk. We do not warrant that the functions contained in the Services will meet your requirements or operate in the combination that you may select for use, that the operation of the Services will be uninterrupted or error free, or that defects in the Services will be corrected. No oral or written statement by the Publisher or by a representative of the Publisher shall create a warranty or increase the scope of this warranty.
WE DO NOT WARRANT THE SERVICES, THE VIEWMEDICA APPLICATION(S), OR THE VIEWMEDICA LICENSED CONTENT AGAINST INFRINGEMENT OR THE LIKE WITH RESPECT TO ANY COPYRIGHT, PATENT, TRADE SECRET, TRADEMARK OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY AND DOES NOT WARRANT THAT THE VIEWMEDICA APPLICATION(S) OR VIEWMEDICA LICENSED CONTENT IS FREE OF ANY VIRUS, SOFTWARE ROUTINE OR OTHER SOFTWARE DESIGNED TO PERMIT UNAUTHORIZED ACCESS, TO DISABLE, ERASE OR OTHERWISE HARM SOFTWARE, HARDWARE OR DATA, OR TO PERFORM ANY OTHER SUCH ACTIONS.
Any warranties that by law survive the foregoing disclaimers shall terminate ninety (90) days from the date you first access or use the Services.
We are not engaged in rendering legal, or other professional service. If such assistance is required, the service of a competent professional should be sought. The Publisher, Provider and their suppliers expressly disclaim any representations or warranties that Your use of the services will satisfy any statutory or regulatory obligations, or will assist with, guarantee or otherwise ensure compliance with any applicable laws or regulations, including but not limited to the Health Insurance Portability and Accountability act of 1996 ("HIPAA"), the Gramm-Leach-Bliley act of 1999, the Sarbanes-Oxley act of 2002, or other federal or state statutes or regulations. You are solely responsible for ensuring that Your use of the services is in accordance with applicable law.
18. Limitation of Liability and Damages. To the maximum extent permitted under applicable law, the entire cumulative liability of the Publisher, Provider and their affiliates and suppliers, and your exclusive remedy for all matters or claims arising from or relating to this Agreement shall be limited to the amount paid by and/or due from you for the Services within the twelve (12) month period immediately preceding the event giving rise to such claim. To the maximum extent permitted by applicable law, the Publisher, Provider and their affiliates and suppliers shall not be liable for any (a) indirect, special, incidental, punitive or consequential damages; and (b) damages relating to telecommunication failures, internet and electronic communications failures, delays or limitations, loss, corruption, security or theft of data, viruses, spyware, loss of business, revenue, profits or investment, use of software or hardware that does not meet our systems requirements. The limitations of damages set forth above are fundamental elements of the basis of the bargain among the Publisher, Provider and You. We would not have provided the Services or the ViewMedica Licensed Content without such limitations.
You agree that the Publisher, Provider and their affiliates and suppliers will not be liable for defense or indemnity with respect to any claim against you by any third party arising from your possession or use of the Services or the ViewMedica Licensed Content.
In no event will our total liability to you for all damages, losses, and causes of action (whether in contract, tort, including negligence, or otherwise) exceed the amount you paid for the Services.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, AND SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
19. Government Restricted Rights. For units of the Department of Defense, use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013. Contractor/manufacturer is Swarm Interactive, Inc. 1506 E. Franklin St., Suite 101, Chapel Hill, NC 27514.
If the Commercial Computer Software Restricted rights clause at FAR 52.227-19 or its successors apply, the Services and ViewMedica Licensed Content constitute restricted computer software as defined in that clause and the Government shall not have the license for published software set forth in subparagraph (c)(3) of that clause.
The Services and ViewMedica Licensed Content (i) were developed at private expense, and no part of it was developed with governmental funds; (ii) are a trade secret of the Publisher (or its licensor(s)) for all purposes of the Freedom of Information Act; (iii) is "restricted computer software" subject to limited utilization as provided in the contract between the vendor and the governmental entity; and (iv) in all respects is proprietary data belonging solely to us (or our licensor(s)).
20. Governing Law. This Agreement shall be construed in accordance with the laws of North Carolina. You consent to the exclusive jurisdiction and venue of the courts of North Carolina. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement shall continue in full force and effect.
21. Attorneys' Fees. In the event an action is filed to enforce this Agreement or for breach of this Agreement, the prevailing party shall be entitled to recover all the costs of such action, including reasonable attorneys' fees, whether before, during, or after trial, or on appeal, or in bankruptcy proceedings.
22. Complete Agreement. This Agreement constitutes the entire agreement between the parties hereto and shall not be modified, amended, or changed in any way except by a written agreement signed by the Publisher and Provider. In the event of a dispute between the English and any non-English version of this Agreement, the English version of this License shall govern. We may change this Agreement from time to time effective upon posting of the modified Agreement on Publisher’s website. Please review the Agreement periodically on Publisher’s website for changes. The Publisher has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to, Internet based services, pricing, technical support options, and other product-related policies, at any time upon notice by any means the Publisher determines in its discretion to be reasonable. Your continued use of the Services after our publication of any such changes shall constitute your acceptance of this Agreement as modified.