TERMS OF SERVICE
READ THESE TERMS CAREFULLY AS THEY GOVERN YOUR USE OF THE SITE. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS THIS SITE.
The following Agreement to Terms of Service (the “Agreement”) is made by and between Datascope Analytics LLC, an Illinois limited liability company (“Datascope”), and the User of Datascope’s Web site (the “User”) located at //datascopeanalytics.com (the “Site”). Please review the Agreement carefully. By using the Site, and other online areas owned or operated by Datascope, User is agreeing to the terms of this Agreement.
(a) Datascope is a consulting and design firm which owns and operates the Site.
(b) Users who access and use the Site, as defined in Paragraph 4 below, may post Content to designated areas of the Site.
NOW THEREFORE, the parties agree as follows:
1. User Conduct. User’s permission to use the Site is conditioned upon User’s agreement that User: A. will comply with the terms of service set forth in this Agreement; B. will not copy or distribute any part of the Site, in any medium, without Datascope’s prior written authorization; C. will not use the Site to collect any personally identifiable information, including email addresses, or other such information, for commercial purposes; D. will not use the communication systems provided by or contacts made on the Site for any commercial solicitation purposes; E. is solely responsible for User’s Content submissions; F. represents that User owns or has the necessary licenses, rights, permissions, and consents to use and authorize Datascope to use any and all Content submitted by User to Datascope in accordance with the licenses granted in this Agreement; G. hereby affirms that Datascope has the right to determine whether any of User’s Content submissions are appropriate and comply with this Agreement, remove any and/or all of User’s submissions, and terminate User’s access with or without prior notice; H. will not conduct or promote any illegal activities while using the Site; I. will not upload, distribute or print anything that may be harmful to minors; J. will not attempt to reverse engineer or jeopardize the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site; K. will not attempt to gain access to secured portions of the Site to which User does not possess access rights; L. will not upload or transmit any software, viruses, or any other malicious code designed to interrupt, destroy, or limit the functionality of any computer, software, hardware, or telecommunications equipment; M. will not interfere in any way with the proper functioning of the Site, or impersonate another User; N. will not submit Content that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless User is the owner of such rights or has the appropriate permission from their rightful owner to specifically submit such Content to Datascope; O. will not submit Content which is exported in violation of any law, rule, or regulation governing exports from the United States; P. will not submit Content which is being used to harass, stalk, or otherwise threaten a person; Q. will not submit Content which impersonates any other person or otherwise falsely states or otherwise misrepresents an affiliation with a person or entity; R. will not submit Content which promotes violence, drug use, illegal gambling, or other criminal activity; S. will not submit Content which violates, plagiarizes, or infringes on the intellectual property or contractual rights of any third party, including copyrights, trademark, service mark, patent, trade secret, confidentiality, or other rights; T. will not submit Content which is abusive, hateful, inflammatory, harmful, tortious, or racially, ethically, or otherwise objectionable; U. will not submit Content which contains libelous, defamatory, obscene, pornographic, abusive or otherwise unlawful material; V. will not submit Content which is libelous, defamatory, or invades any privacy or publicity rights of any third party; W. will not submit Content which contains or promotes any materials or information which may violate any law, rule, regulation, ordinance, or requirement to which User or Datascope are subject; X. will not submit Content which gives rise to civil liability, is false or inaccurate, or could damage Datascope, its affiliates, or other parties; or Y. will not submit Content which is otherwise inappropriate, as determined by Datascope in its sole discretion.
2. No Violation of Law. User expressly agrees not to use the Site in a manner that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation. User acknowledges that prohibited conduct includes, but is not limited to, use of the Site to invade the privacy of third parties, impersonate Datascope personnel or other parties or entities, transmit abusive, profane, libelous, slanderous, threatening or otherwise harassing material via email, chat services bulletin boards or User’s personal Web page(s).
3. No Mass Mail. User agrees not to use the Site in connection with the sending of the same or substantially similar unsolicited electronic mail message, whether commercial or not, to a large number of recipients. User further agrees not to send unsolicited mass mailings from another service which in any way implicates the use of the Site, Datascope equipment, or any Datascope electronic mail address. For purposes of this provision, merely making one’s email address accessible to the public shall not constitute a request or invitation to receive messages. For each violation of this provision, User agrees to pay Datascope damages to compensate for any losses it may have including the loss of goodwill, but, where warranted, such as in the case of an accidental transmission, Datascope may waive all or part of any applicable charge. Payment under this provision shall not prevent Datascope from seeking to obtain other legal remedies, including other damages or an injunction.
4. Content. User recognizes that it is solely responsible for the Content of any information it makes available by posting on the Site, in an email, or in a bulletin board service (the “Content”). Datascope does not claim ownership of the Content User places on the Site. Datascope has the right to monitor the Content which User or other Users post through use of the Site, but shall have no obligation to do so. User agrees that if Datascope, in its sole discretion, deems any Content made available by User to be unlawful, fraudulent, unacceptable, offensive, obscene or otherwise objectionable, Datascope has the right, but not the obligation, to remove or deny access to such Content. User expressly agrees that Datascope shall not be liable to it for any action Datascope takes to remove or restrict access to such material, nor for any action taken to restrict access to material posted in violation of any law, regulation or rights of a third party, including, but not limited to, rights under the copyright law and prohibitions on libel, slander and invasion of privacy. Datascope has the right to take all reasonable actions to remove or restrict access to any such material, including restriction, suspension or termination of User’s access privileges and/or deletion of the objectionable material.
5. Rules Regarding Information and Content. User agrees not to revise or obscure Content posted by others or by Datascope when using the Site. Though Datascope strives to enforce these rules with all Site Users, User may be exposed through the Site to Content that violates Datascope’s policies or is otherwise offensive. Datascope may, but is not obligated to, terminate User’s access to the Site and/or remove Content from the Site if Datascope determines or suspects such access or Content violates the terms of this Agreement or the applicable agreement with the offending User(s). Datascope takes no responsibility for User’s exposure to Content on the Site whether it violates Datascope’s Content policies or not.
6. Proprietary Materials. Material accessible to User through the Site may be the subject of intellectual property rights, including, without limitation, patents, copyrights, trademarks, and trade secrets. Except as expressly permitted by the owner of such rights, User may not reproduce, redistribute, retransmit, publish or otherwise transfer, or commercially exploit, any such material.
7. Intellectual Property. User acknowledges and agrees that Datascope and Datascope’s licensors retain ownership of all intellectual property rights of any kind related to the Site, including applicable copyrights, trademarks, and other property rights. Datascope is not granting any license to User under any of those intellectual property rights by virtue of this Agreement, except for the limited right to use the Site in accordance with this Agreement. Product and company names mentioned on the Site may be trademarks of their respective owners. Datascope reserves all rights that are not expressly granted to User in this Agreement. The Content on the Site, excluding all intellectual property of other sites obtained by way of linking and Content posted by Site Users, is owned by Datascope. This includes, without limitation, the text, software, scripts, graphics, photos, sounds, interactive features and the trademarks, service marks, and logos container therein (the “Marks”). The Marks are owned or licensed to Datascope, subject to copyright and other intellectual property rights under United States law, the law of the jurisdiction where User resides, and international conventions. Content provided by Datascope is provided to User “AS IS” for User’s information and personal use only and may not be used, copied, reproduced, modified, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Datascope reserves all rights not expressly granted in and to the Site. As between User and Datascope, User retains any intellectual property rights in any copyrighted materials and trademarks that are contained in Content that User posts to the Site. User grants Datascope an irrevocable, perpetual, non-exclusive, royalty-free, fully paid, worldwide license, with rights to sublicense through multiple levels of sublicenses, to reproduce, make derivative works of, translate, distribute, publicly perform, and publicly display in any form or medium, whether no known or later developed, make, use, sell, import, offer for sale, otherwise commercially exploit and exercise any and all such rights, under any and all of User’s intellectual property rights related to the Content in any manner Datascope chooses. If User has any rights to the Content that cannot be licensed to Datascope (such as moral rights in some countries), User unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Datascope or related to Datascope’s customers and partners anywhere in the world, with respect to such rights.
8. Copyright Complaints. Datascope respects the intellectual property rights of others, and requires that Users of Datascope’s Site do the same. In appropriate circumstances, Datascope will terminate the registration of any User who engages in any activity which may infringe on the intellectual property rights of others, including copyrights.
All copyright complaints, including complaints under the Digital Millennium Copyright Act, may be directed to: Datascope Analytics, 17 N. State St., Suite 1250, Chicago, Illinois 60602, [email protected].
9. Confidentiality. User acknowledges that transmissions made by means of the Site are not confidential and that communications may be read or intercepted by others. User acknowledges that by transmitting materials by means of the Site, by email, or by other correspondence, no confidential, fiduciary, contractually implied, or other relationship is created.
10. Indemnity. User hereby agrees to defend, indemnify and hold harmless Datascope and its employees, agents, licensors, independent contractors, providers, subsidiaries and affiliates, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorneys’ fees) arising from: (i) User’s use of and access to the Site; (ii) User’s violation of any term of this Agreement; (iii) User’s violation of any third party right, including without limitation any copyright, property, or privacy rights; or (iv) any claim that any Content submitted by User causes damage to a third party. User shall cooperate as fully as reasonably required in the defense of any claim. Datascope reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification and User shall, in any event, not settle any matter without the written consent of Datascope. This defense and indemnification obligation will survive this Agreement and User’s use of the Site.
11. Disclaimer of Warranty. THE SITE (INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION ACCESSED BY ANY MEANS THEREOF) IS PROVIDED AS IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, DATASCOPE MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SITE, INCLUDING, WITHOUT LIMITATION, ANY INTERRUPTION OF OR ERROR IN THE SITE UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, DATASCOPE’S NEGLIGENCE.
12. Limitation of Liability. In no event will Datascope, or any person or entity involved in creating, producing or distributing Datascope or the Datascope software, be liable for any damages, including without limitation, direct, indirect, incidental, special, consequential, or punitive damages arising out of the use of or inability to use the Site. The User hereby acknowledges that the provisions in this section shall apply to all Content on the Site. Some states do not allow the exclusion or limitation of incidental or consequential damages and in such states, Datascope’s liability shall be limited to the extent permitted by law. In no event shall Datascope’s total liability for all damages, losses, or causes of action exceed five hundred dollars ($500.00).
This disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortious behavior, negligence, or under any other cause of action. The User specifically acknowledges that Datascope is not liable for the defamatory, offensive, or illegal conduct of other Users or third-parties and that the risk of injury from the foregoing rests entirely with the User.
In addition to the terms set forth above, neither Datascope, nor its affiliates, information providers or Content partners shall be liable regardless of the cause or duration, for any errors, inaccuracies, omissions, or other defects in, or untimeliness or unauthentic nature of, the information contained within Site, or for any delay or interruption in the transmission thereof to the User, or for any claims or losses arising therefrom or occasioned thereby. None of the foregoing parties shall be liable for any third-party claims or losses of any nature, including, but not limited to, lost profits, punitive or consequential damages. Datascope, its affiliates, information providers, or Content partners shall have no liability for investment decisions based on the information provided. Neither Datascope, nor its affiliates, information providers, or Content partners warrant or guarantee the timeliness, sequence, accuracy or completeness of this information. Additionally, there are no warranties as to the results obtained from the use of the information.
In many instances, the Content available through the Site represents the opinions and judgments of the respective information provider, the User, or other Users not under contract with Datascope. Datascope neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on the Site by anyone other than authorized Datascope employee spokespersons while acting in their official capacities. Under no circumstances will Datascope be liable for any loss or damage caused by the User’s reliance on information obtained through the Site. It is the responsibility of the User to evaluate the accuracy, completeness or usefulness of any information, opinion, advice, or other Content available through the Site. Please seek the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion, advice, or other Content.
By publishing or submitting any Content, including articles, stories, postings, and photographs to any part of the Site, User gives permission that such Content may be used at the sole discretion of Datascope anywhere else on the Site, for any purpose, in its original or edited form, at any time in the future. Content will not be sold without permission of the original author or owner.
13. Links to Third Party Sites. The Site may contain links to third party Web sites that are not owned, operated, or controlled by Datascope and Datascope does not have control over these Web sites. Therefore, Datascope cannot and does not assume responsibility for the Content, privacy policies, or practices of such Web sites or the companies that own them. Additionally, Datascope cannot and will not censor or edit the Content of any third party Web site. By using the Site, User expressly relieves Datascope from any and all liability arising from User’s use of any Web site.
14. Reservation of Rights and Release. Datascope reserves the right, but has no obligation, to monitor, or take any action Datascope deems appropriate regarding disputes that User may have with other Users of the Site. To the extent the law permits, User releases Datascope from any claims or liability related to any Content posted on the Site and from any claims related to the conduct of any other Users of the Site. User hereby waives California Civil Code Section 1542 (if User is a California resident), and any similar provision in any other jurisdiction (if User is a resident of such jurisdiction), which states: “A general release does not extend to claims which the creditor does not know of 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.”
15. Electronic Communications. The communications between User and Datascope use electronic means, whether User visits the Site or sends Datascope emails, or whether Datascope posts notices on the Site or communicates with User via email. For contractual purposes, User: (i) consents to receive communications from Datascope in an electronic form; and (ii) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Datascope provides to User electronically satisfies any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect User’s non-waivable rights.
16. Contact Information. Communications regarding this Agreement may be directed to: Datascope Analytics, 17 N. State St., Suite 1250, Chicago, Illinois 60602, [email protected].
17. Headings. The headings in this Agreement are for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any of its provisions.
18. Entire Agreement. This Agreement and any other legal notices published by Datascope on the Site shall constitute the entire agreement between User and Datascope and supersedes all prior agreements between the parties concerning the Site.
19. Assignability. User may not assign this Agreement without the prior written consent of Datascope, which consent may be granted or withheld in Datascope’s discretion. This Agreement shall be binding upon and inure to the benefit of the parties and their respective administrators, successors, and assigns.
20. Modifications. Datascope has the right to modify this Agreement at any time. Any modification is effective immediately upon either a posting on the Site or upon notice by electronic mail. Continued use of the Site following notice of modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s). The only right accruing with respect to User’s dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of Datascope relating to use of the Site, is to discontinue use of the Site. Any changes to this Agreement (other than as set forth in this paragraph) or waiver of Datascope’s rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of the managing members of Datascope.
21. Termination. This Agreement may be terminated at any time by either party. Datascope reserves the right to restrict, suspend, or terminate User’s access to the Site in whole or in part, without notice: (i) with respect to any breach or threatened breach of this Agreement; or (ii) for any other reason, at the sole discretion of Datascope.
22. Waivers. Failure by Datascope to enforce any provision of this Agreement shall not be construed as a waiver of any provision or right.
23. Choice of Law. This Agreement shall be governed and construed in accordance with the laws of the State of Illinois, without regard to the conflict of law principles thereof.
24. Arbitration. The parties agree that they will use their best efforts to amicably resolve any dispute out of or relating to this Agreement. Any controversy, claim, or dispute that cannot be so resolved shall be settled by final binding arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof. Any such arbitration shall be conducted in Chicago, Illinois, or such other place as may be mutually agreed upon by the parties. Within fifteen (15) days after the commencement of the arbitration, each party shall select one (1) person to act as arbitrator, and the two (2) arbitrators so selected shall select a third arbitrator within ten (10) days of their appointment. Each party shall bear its own costs and expenses and an equal share of the arbitrators’ expenses and administrative fees of arbitration.
25. Severability. In the event that any portion of this Agreement is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect.