IMPORTANT NOTICE: Use and distribution of the ATLAS is governed by the terms and conditions of the MIM Software END-USER ATLAS License Agreement (Agreement or License Agreement) that you see below. Before downloading, installing, or using this ATLAS, please read the terms of the following License Agreement carefully. You signify that you have read the License Agreement by clicking on the I AGREE button BELOW OR BY USING THE ATLAS OR BY EXECUTING A COPY OF THIS AGREEMENT AND PROVIDING IT TO A MIM SOFTWARE REPRESENTATIVE. You signify your acceptance of, and agreement to be bound by, all of the terms of this Agreement by clicking on the I AGREE button at the bottom of this Agreement or by your use of the ATLAS OR BY EXECUTING A COPY OF THIS AGREEMENT AND PROVIDING IT TO A MIM SOFTWARE REPRESENTATIVE. BY CLICKING THE I AGREE BUTTON You agree to contract electronically with MIM Software Inc. and that the electronic License Agreement has the same legal force and effect as a written contract with your written signature and satisfies any laws that require a writing or signature, including any applicable Statute of FraudS. YOU FURTHER AGREE THAT YOU WILL NOT CHALLENGE THE VALIDITY, ENFORCEABILITY OR ADMISSIBILITY OF THIS AGREEMENT ON THE GROUNDS THAT IT WAS ELECTRONICALLY TRANSMITTED OR AUTHORIZED. YOU FURTHER ACKNOWLEDGE THAT YOU HAVE THE OPPORTUNITY TO PRINT THIS AGREEMENT.
If you do not agree with the terms OF THE AGREEMENT, click on the I DO NOT AGREE button to promptly exit this page. DO NOT USE THIS ATLAS AND DO NOT EXECUTE A COPY OF THIS AGREEMENT AND PROVIDE IT TO A MIM SOFTWARE REPRESENTATIVE. If you DECLINE the terms of this License Agreement you are not authorized to make any use of the ATLAS whatsoever, and must return or destroy it and all copies in your possession or control.
DO NOT INSTALL, COPY OR USE THE ATLAS IF YOU DO NOT WANT TO BE BOUND BY THESE TERMS.
TERMS AND CONDITIONS OF
MIM SOFTWARE END-USER SOFTWARE LICENSE AGREEMENT
This MIM Software End-User Atlas License Agreement (this Agreement) is effective as of the date the Atlas is obtained from MIM Software (the Effective Date), and is entered into by and between MIM Software Inc., an Ohio corporation with offices at 25800 Science Park Drive, Suite 180, Cleveland, Ohio 44122 (MIM Software), and You.
ARTICLE 1. DEFINITIONS
1.1 You, Your or Licensee means the individual or company who has or will download, install and/or use the Atlas and who is being licensed to use the Atlas.
1.2 MIM Software means MIM Software Inc. and its agents or representatives.
1.3 Program or Atlas means a collection of coutoured medical images for use with the MIM Software software that was or will be downloaded or obtained from MIM Software or another party and which may be comprised of a setup program, self-extracting executable, or other compressed archive file and the source and/or binary files resulting from the installation of the software, or any part thereof, all of which are licensed under the terms of this Agreement.
ARTICLE 2. LICENSE
2.1 Grant of License. During the term of this Agreement, MIM Software grants to Licensee a royalty-free, limited, non-exclusive, worldwide, right and license to install, use, access, display, run or otherwise interact with the Atlas subject to the terms and conditions of this Agreement. All terms and conditions of this Agreement are material terms of the license granted by this Agreement and Licensee may use the Atlas only on the terms set forth in this Agreement.
2.2 Assignment. Licensee may assign this Agreement in whole (including transferring the licensed copy of the Atlas) to a third party.
2.3 Restrictions.
2.3.1 Licensee has no right or license to modify, prepare derivative works of, decompile, disassemble or otherwise reverse engineer the Atlas. Licensee shall not adapt, alter, modify, translate, or create derivative works of the Atlas without the express written authorization of MIM Software.
2.3.2 Licensee may not authorize or assist any third party to do anything prohibited by this Agreement.
2.4 Representations.
2.4.1 Licensee represents and warrants that Licensee will use the Atlas only for lawful purposes and in accordance with this Agreement.
2.4.2 Licensee represents and warrants that Licensee will not use the Atlas to violate any law, regulation or ordinance or any right of MIM Software or any third party, including, without limitation, any right of privacy, publicity, patent, copyright or trademark.
2.4.3 Licensee represents and warrants that it has full power and authority to enter into this Agreement.
2.4.4 MIM Software represents and warrants that it has full power and authority to enter into this Agreement.
2.4.5 MIM Software represents and warrants that it will use its commercially reasonably efforts to provide the Atlas in accordance with the terms of this Agreement and industry standards.
2.4.6 Licensee is solely responsible for the accuracy and integrity of its own data, reports, documentation and security.
2.5 Acknowledgment. Licensee understands that any unauthorized reproduction of the Atlas or any portion thereof may be a crime, and may subject Licensee to damages and attorneys fees.
ARTICLE 3. PROPRIETARY RIGHTS
3.1 Acknowledgement of Ownership. Licensee acknowledges that, except as otherwise provided for herein, it has no right, title and interest in and to the Atlas, including, without limitation, all associated patents, copyrights and trade secrets rights. No rights or licenses, express or implied, other than those expressly stated herein are granted by this Agreement.
ARTICLE 4. DISCLAIMER OF WARRANTIES
4.1 EXCEPT AS SET FORTH IN THIS AGREEMENT, MIM SOFTWARE EXPRESSLY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE ATLAS (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE OR THAT THE ATLAS: WILL BE ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, WILL NOT INFRINGE THE RIGHTS OF A THIRD PARTY, OR WILL PRODUCE RESULTS IN CONNECTION WITH ITS USE). FURTHER, MIM SOFTWARE EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE SHALL APPLY TO THIS AGREEMENT.
4.2 MIM SOFTWARE PROVIDES THE ATLAS TO LICENSEE AS IS WITH ALL FAULTS AND EXCEPT AS SET FORTH IN THIS AGREEMENT, WITHOUT WARRANTY OF ANY KIND. LICENSEE IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USING THE ATLAS, AND FOR PROVIDING SUPPORT (INCLUDING ASSISTANCE IN THE USE OF THE ATLAS) AND MAINTENANCE (INCLUDING ERROR CORRECTIONS) FOR THE ATLAS. LICENSEE ASSUMES ALL RISKS ASSOCIATED WITH ITS EXERCISE OF RIGHTS UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE RISKS AND COSTS TO IT AND ITS AFFILIATES OF PROGRAM ERRORS, QUALITY, PERFORMANCE, AND ACCURACY; COMPLIANCE WITH APPLICABLE LAWS; DAMAGE TO OR LOSS OF DATA, PROGRAMS OR EQUIPMENT; PERSONAL INJURY, DEATH OR DAMAGE TO OR DESTRUCTION OF PROPERTY OR PREMISES; AND UNAVAILABILITY OR INTERRUPTION OF OPERATIONS EXPERIENCED BY LICENSEE.
ARTICLE 5. LIMITATION OF LIABILITY
5.1 Limitation of Damages. MIM Software is not liable to Licensee or its affiliates: for any personal injury, death or damage to or destruction of property or premises that occurs in connection with any use of the Atlas by Licensee or its affiliates, for any decision made or taken by Licensee or its affiliates in reliance upon the Atlas, for any loss or inaccuracy of data, cost of procurement of substitute goods, services or technology, for any matter beyond its reasonable control, or for direct, indirect, special, consequential, exemplary or incidental damages (including, without limitation, lost revenues, anticipated revenues or profits relating to the same) arising from any claim relating directly or indirectly to this Agreement, whether such claim is based on warranty, contract, tort (including, without limitation, negligence or MIM Software's strict liability), even if an authorized representative of MIM Software is advised of the likelihood or possibility of same.
5.2 Responsibility for Medical Decisions. All medical decisions, including interpretation of any image from the Atlas or otherwise, and any diagnosis, treatment and/or care plan, made by health care professionals and physicians as the result of the use of the Atlas are strictly the responsibility of those individuals and/or Licensee. LICENSEE ACKNOWLEDGES THAT ARTIFACTS OR CORRUPTED DATA MAY BE PRESENT IN COMPUTER-GENERATED IMAGES, INCLUDING IMAGES GENERATED BY THE ATLAS, THAT ARE BEYOND THE CONTROL OF ANY SOFTWARE PRODUCT AND THAT SUCH ARTIFACTS OR CORRUPTED DATA MAY ALSO BE CAUSED BY HARDWARE AND/OR DISPLAY MALFUNCTIONS. MIM SOFTWARE DOES NOT WARRANT THAT IMAGES PRODUCED BY THE ATLAS WILL BE FREE FROM ARTIFACTS OR CORRUPTION. IT IS THE RESPONSIBILITY OF THE HEALTH CARE PROFESSIONALS AND PHYSICIANS INVOLVED TO ANTICIPATE THE POSSIBILITY OF SUCH ARTIFACTS AND/OR CORRUPTION IN INTERPRETING IMAGES FROM THE ATLAS OR PRODUCED BY MIM SOFTWARE OR OTHER SOFTWARE.
5.3 Certain Jurisdictions. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, the disclaimers set forth in Article 5.1 may not apply to Licensee if Licensee resides in such a jurisdiction.
ARTICLE 6. INDEMNIFICATION
6.1 LICENSEE ASSUMES SOLE RESPONSIBILITY FOR LICENSEES AND ITS AFFILIATES USE OF THE ATLAS. LICENSEE SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS MIM SOFTWARE AND ITS AFFILIATES, STOCKHOLDERS, DIRECTORS, OFFICERS AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITIES, COSTS, FEES, OBLIGATIONS AND/OR DAMAGES (INCLUDING ATTORNEYS FEES) ARISING OUT OF OR RELATING TO (i) LICENSEES OR ITS AFFILIATES USE OF THE ATLAS, (ii) ANY CLAIM BY A THIRD PARTY THAT LICENSEES OR ITS AFFILIATES UNAUTHORIZED USE, POSSESSION, MODIFICATION OR ALTERATION OF THE ATLAS INFRINGES ANY PROPRIETARY RIGHT OF ANY THIRD PARTY, (iii) A BREACH BY LICENSEE OR ITS AFFILIATE OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT, (iv) ANY ACTS OR OMISSIONS BY LICENSEE OR ITS AFFILIATE IN CONNECTION WITH THIS AGREEMENT OR THE MODIFICATION OR DISTRIBUTION OF THE ATLAS, (v) LICENSEES OR ITS AFFILIATES GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (vi) ANY CLAIM THAT ANY PATIENTS CONDITION OR DISEASE WAS NOT DIAGNOSED OR WAS MISDIAGNOSED AS THE RESULT OF AN IMAGE OR IMAGES PRODUCED BY THE ATLAS OR MIM SOFTWARE OR OTHER SOFTWARE, OR (vii) ANY PRODUCT LIABILITY, PERSONAL INJURY, DEATH OR DAMAGE OR DESTRUCTION OF PROPERTY OR PREMISES RESULTING FROM LICENSEE OR ITS AFFILIATES USE OF THE ATLAS. MIM SOFTWARE AGREES THAT IT WILL NOTIFY LICENSEE PROMPTLY (BUT NO LATER THAN TEN (10) DAYS AFTER RECEIPT BY MIM SOFTWARE OF NOTICE OF SUCH CLAIM IN WRITING OF EACH SUCH CLAIM OR SUIT) AND WILL GIVE LICENSEE ALL INFORMATION KNOWN TO MIM SOFTWARE RELATING THERETO. MIM SOFTWARE WILL COOPERATE WITH LICENSEE IN THE SETTLEMENT AND/OR DEFENSE. LICENSEE SHALL REIMBURSE MIM SOFTWARE FOR ALL REASONABLE OUT-OF-POCKET EXPENSES INCURRED BY MIM SOFTWARE IN PROVIDING ANY COOPERATION REQUESTED BY LICENSEE, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES. MIM SOFTWARES FAILURE TO NOTIFY LICENSEE IN A TIMELY MANNER AS SET FORTH ABOVE WILL RESULT IN THE FORFEITURE BY MIM SOFTWARE OF ITS RIGHTS TO INDEMNIFICATION UNDER THIS SECTION.
ARTICLE 7. TERM AND TERMINATION
7.1 Term. Unless sooner terminated as set forth below, this Agreement commences on the Effective Date and remains in full force and effect for a period of one (1) year. Thereafter, this Agreement continues from year-to-year, unless terminated sooner by the parties.
7.2 Termination for Breach. Upon written notice, either party may terminate this Agreement if the other party materially breaches a provision of the Agreement and the breaching party fails to cure the breach within thirty (30) days upon receipt of written notice of such breach.
7.3 Effect of Termination. Upon any termination of this Agreement all of Licensees rights under this Agreement shall terminate and Licensee shall (i) immediately cease use of the Atlas; (ii) and return, at its cost, all copies of the Atlas together with any and all custom modifications and merged portions in any form, unless it provides assurances reasonably satisfactory to MIM Software that the Atlas and all copies thereof have been destroyed. MIM Software has the right to supervise the return or destruction of all such materials.
ARTICLE 8. GENERAL
8.1 Survival of Provisions. Articles 4.1, 4.2, 5.1, 5.2, 5.3 and 6.1 survive any termination of this Agreement.
8.2 Language. The parties hereto confirm that it is their wish that this Agreement, as well as other documents relating hereto, including Notices, have been and shall be drawn up in the English language only.
8.3 Entire Agreement. This Agreement constitutes the whole and entire agreement of the parties on the subject matter hereof, superseding all prior written or oral, or contemporaneous oral, representations, proposals, correspondence, memoranda or other communications, all of which are expressly excluded.
8.4 Assignment. MIM Software may assign its rights and duties under this Agreement to any party at any time without notice to Licensee and/or without the approval of Licensee.
8.5 Relationship of the Parties. This Agreement creates no partnership, joint venture, franchise or agency between the parties. The relationship created hereby is strictly that of licensor and licensee. Neither party has the right to assume or create, either directly or indirectly, any liability or obligation of any kind, express or implied, in the name of or on behalf of the other party, and neither party will represent that it has such authority.
8.6 Waivers; Amendments. This Agreement may only be waived or amended, if such waiver or amendment is in writing, specifically references this Agreement and is executed by the party to be bound. The waiver by either party of a breach of any provision of this Agreement does not operate as a waiver of any other breach. A partys failure or delay to exercise any right hereunder does not operate as a waiver of such right or provision of this Agreement.
8.7 Force Majeure. MIM Software is not responsible for any failure to perform its obligations hereunder caused by strikes, lockouts, riots, epidemics, war, governmental regulations, fire, communication line failures, power failures, acts of God or other causes beyond its reasonable control, and the occurrence of any such event will toll the time period provided in this Agreement for performance by MIM Software.
8.8 Severability. The illegality, invalidity or unenforceability of any part of this Agreement does not affect the legality, validity or enforceability of the remainder of this Agreement. If any part of this Agreement is found to be illegal, invalid or unenforceable, this Agreement will be given such meaning as would make this Agreement legal, valid and enforceable in order to give effect to the intent of the parties.
8.9 Headings. The Article titles and headings in this Agreement are only for the convenience of the parties and have no legal or contractual effect.
8.10 Notices. Any question or comments regarding the Atlas should be directed by email to info@mimsoftware.com, by telephone at 1-866-421-2536 or via U.S. Mail to MIM Software at MIM Software Inc., 25800 Science Park Drive, Suite 180, Cleveland, Ohio 44122.
8.11 Dispute Resolution. The parties hereto shall endeavor in good faith to resolve all claims, controversies and disputes, arising from, or in connection with, this Agreement through informal discussions and negotiations either between themselves or between their respective legal representatives. Any such claim, controversy, or dispute, which is not resolved in such manner, shall be submitted to binding arbitration pursuant to the provisions of the Federal Arbitration Act. Such arbitration shall be conducted before a single arbitrator pursuant to the commercial rules of the American Arbitration Association. The arbitration shall take place in Cleveland, Ohio. Any award rendered by the arbitrator shall be conclusive and binding upon the parties, provided, however, that any such award shall be accompanied by a written opinion of the arbitrator giving the reasons for the award. The decision of the arbitrator in accordance herewith shall be final and binding and shall be entered and enforced, at the request of either party, by any court of competent jurisdiction. Each party shall pay its own expenses of arbitration, and the expenses of the arbitrator shall be shared equally by the parties, provided, however, that if, in the opinion of the arbitrator, any claim under this Agreement or any defense or objection thereto, was unreasonable, the arbitrator may assess, as part of his or her award, all or any part of the arbitration expenses of the other party (including reasonable attorneys fees) and of the arbiter against the party raising such unreasonable claim, defense, or objection. The parties agree to maintain the claim, controversy, or dispute, as well as the arbitration, in confidence. Notwithstanding the terms of this paragraph, each party reserves the right to bring judicial action against the other for claims of infringement of its intellectual property rights.
8.12 Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Ohio, United States of America, without regard to its choice of laws or principles. Any legal proceedings relating to the subject matter of this Agreement will be maintained in the courts of the State of Ohio, United States of America and the parties consent and agree that such jurisdiction and venue for such proceedings lies exclusively with such court.
8.13 Authority to Execute This Agreement. By clicking the "I Agree" button or by signing the Agreement below, you represent and warrant that that you have the authority to execute this Agreement on behalf of the Licensee and to carry out all obligations imposed hereunder.