DRS. BERDAHL AND HARDTEN INTRAOCULAR LENS WEB-BASED CALCULATOR LICENSE AGREEMENT
PLEASE READ THIS INTRAOCULAR LENS WEB-BASED CALCULATOR LICENSE AGREEMENT (THIS "AGREEMENT") BY SCROLLING DOWN. THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE") AND DRS. BERDAHL AND HARDTEN. BY CHOOSING "I ACCEPT" ON THIS SCREEN, LICENSEE IS AGREEING TO THE TERMS OF THIS AGREEMENT. IF LICENSEE CANNOT ACCEPT THE TERMS OF THIS AGREEMENT, USE THIS OPPORTUNITY TO DECLINE. LICENSEE'S ACCESS TO AND USE OF THE INTRAOCULAR LENS WEB-BASED CALCULATOR PROVIDED BY DRS. BERDAHL AND HARDTEN TO LICENSEE (THE "CALCULATOR") IS COVERED BY THE TERMS OF THIS AGREEMENT.
Subject to the terms and conditions of this Agreement, Drs. Berdahl and Hardten grant to Licensee a royalty-free, non-transferable, limited, non-exclusive license solely to access and use the Calculator for the limited purpose of performing calculations to help determine the recommended Intraocular lens and/or its suggested axis placement. Licensee agrees to use commercially reasonable efforts to protect the Calculator from unauthorized use, modification, reproduction, distribution and publication. Any rights not expressly granted herein are reserved by Drs. Berdahl and Hardten.
The Calculator is owned by Drs. Berdahl and Hardten and/or its affiliates and is protected by United States copyright laws and international treaty provisions. Drs. Berdahl and Hardten and/or its affiliates owns and retains all right, title and interest in and to the Calculator, including patents, trademarks, copyrights, trade secrets and other intellectual property rights embodied or contained therein. Therefore, Licensee may not use, copy or distribute the Calculator without Drs. Berdahl and Hardten's prior written authorization.
Licensee may not rent, lease, license, or loan the Calculator to any other third party or entity. Use of the Calculator is strictly limited to Licensee under this Agreement. Licensee may not, except to the extent the following restrictions are expressly prohibited by applicable law, (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Calculator or permit others to do so, (ii) copy the Calculator technology or use the Calculator for any commercial purpose, or any public display without the prior written authorization of Drs. Berdahl and Hardten, or (ii) rent, lease, grant a security interest in, or otherwise transfer rights in the Calculator. Licensee may not make corrections to, or otherwise adapt or modify, or create derivative works based upon the Calculator.
- DATA COLLECTION
Through Licensee’s use of the Calculator, Licensee may be inputting patient data subject to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). This data will not be received, retained or used by Drs. Berdahl or Hardten. Any information input into the Calculator other than protected health information (“Anonymous Information”), may be used by Drs. Berdahl and Hardten to optimize or improve the Calculator and other products and services offered by Drs. Berdahl and Hardten; detect, investigate and prevent activities that may violate our policies or be illegal; comply with our legal and regulatory obligations; for use in scientific research by Drs. Berdahl or Hardten, or any affiliated persons or entities and for any other lawful purposes, including sharing or selling such information with third parties. When permitted or required by law, Drs. Berdahl and Hardten may share any information with additional third parties for purposes including response to legal process such as in response to a subpoena.
- NO WARRANTIES
THE CALCULATOR IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY WHATSOEVER. THE DIAGNOSTIC INFORMATION PROVIDED BY THE CALCULATOR IS PROVIDED FOR LICENSEE'S CONVENIENCE, BUT SHOULD NOT BE USED FOR FINAL DIAGNOSIS OR AS A SUBSTITUTE FOR LICENSEE'S MEDICAL EXPERTISE. WHILE EFFORTS HAVE BEEN MADE TO MAKE THE INFORMATION PROVIDED BY THE CALCULATOR HELPFUL AND ACCURATE, DRS. BERDAHL AND HARDTEN DO NOT WARRANT THE ACCURACY OF THE INFORMATION OBTAINED FROM THE CALCULATOR. LICENSEE ASSUMES ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE CALCULATOR TO ACHIEVE LICENSEE'S INTENDED RESULTS AND FOR THE USE OF AND RESULTS OBTAINED FROM THE CALCULATOR. DRS. BERDAHL AND HARDTEN MAKE NO WARRANTY THAT THE CALCULATOR WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, AND LICENSEE AGREES THAT DRS. BERDAHL AND HARDTEN SHALL HAVE NO LIABILITY, CONTINGENT OR OTHERWISE, FOR THE ACCURACY OR TIMELINESS OF THE SERVICE OR PRODUCT, OF THE ACCURACY, TIMELINESS, OR COMPLETENESS OF THE CALCULATOR, OR FOR ANY DECISION MADE OR ACTION TAKEN BY LICENSEE IN RELIANCE UPON THE CALCULATOR, OR FOR ANY INTERRUPTION OR DELAY OF ANY DATA, MATERIAL, OR ANY OTHER ASPECT OF THE CALCULATOR.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DRS. BERDAHL AND HARDTEN DISCLAIM AND EXCLUDE ALL REPRESENTATIONS, WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE CALCULATOR.
LICENSEE HEREBY ACKNOWLEDGES THAT THE CALCULATOR MAY NOT BE AVAILABLE OR MAY BECOME UNAVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, WITHOUT LIMITATION, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE CALCULATOR, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, ACTIONS AND OMISSIONS OF THIRD PARTIES, OR ANY OTHER CAUSE REASONABLY BEYOND THE CONTROL OF DRS. BERDAHL AND HARDTEN. THEREFORE, DRS. BERDAHL AND HARDTEN EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR CALCULATOR AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE.
- LIMITED LIABILITY
LICENSEE ASSUMES THE ENTIRE COST OF ANY DAMAGE RESULTING FROM LICENSEE'S USE OF THE CALCULATOR AND THE INFORMATION CONTAINED IN OR COMPILED BY THE CALCULATOR. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DRS. BERDAHL OR HARDTEN BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF THE USE OF THE CALCULATOR) ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE CALCULATOR, EVEN IF EITHER OR BOTH DRS. BERDAHL AND HARDTEN HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL DRS. BERDAHL AND HARDTEN'S TOTAL LIABILITY TO LICENSEE FOR ALL DAMAGES IN ANY ONE OR MORE CAUSES OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUM OF $500.00.
- TERMINATION OF SERVICE; CHANGES TO AGREEMENT.
Drs. Berdahl and Hardten reserve the right to deny or terminate Licensee’s access to or use of the Calculator, without notice and without limitation, for any reason whatsoever, including, but not limited to, Licensee’s breach of any provision of this Agreement. In the event of any such termination by Drs. Berdahl and Hardten, neither Dr. Berdahl nor Dr. Hardten will have any liability to Licensee. Drs. Berdahl and Hardten reserve the right to revise this Agreement at any time, effective upon posting the revised Agreement on its website without other notice to Licensee except as required by law.
If any part of this Agreement is contrary to, prohibited by, or deemed invalid or unenforceable under applicable laws or regulations, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited, invalid or unenforceable, but the remainder thereof shall not be invalidated thereby and shall be given effect so far as possible.
Licensee shall be deemed to be an independent contractor for all purposes. Neither Licensee nor any agent, representative, associate or employee of Licensee shall be considered an agent, representative or employee of Drs. Berdahl or Hardten for any purpose including, but not limited to, workers’ compensation insurance, unemployment insurance, social security insurance, federal, state and local taxes.
This Agreement is governed by and interpreted in accordance with the laws of the State of South Dakota, excluding its principles of conflict of laws and the United Nations Convention on Contracts for the Sale of Goods. Once Licensee has read this Agreement, and agreed to its terms and indicated such acceptance by clicking below, Licensee will be bound by the terms of the Agreement. Drs. Berdahl and Hardten may terminate this Agreement at any time if Licensee violates its terms. Any waiver by Drs. Berdahl and Hardten of any term of this Agreement will not be considered a continuing waiver of such right. This Agreement constitutes the sole and entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes any and all prior or contemporaneous agreements, representations, understandings, and arrangements, whether written or oral, between the Parties concerning the subject matter hereof.
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