LICENSE AGREEMENT FOR International Anesthesia Research Society SOFTWARE APPLICATION
PLEASE READ THIS SOFTWARE APPLICATION LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE “OpenAnesthesia Self-Study” Software Application, THE “OpenAnesthesia Self-Study+” Software Application OR ANY OTHER IARS SOFTWARE APPLICATION (COLLECTIVELY, the “IARS APPLICATION”). BY USING THE IARS APPLICATION, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. TO AGREE TO THESE TERMS, CLICK “AGREE.” IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “AGREE,” DO NOT USE THE iARS APPLICATION, AND IF PRESENTED WITH THE OPTION TO “AGREE” OR “DISAGREE” TO THE TERMS, CLICK “DISAGREE.”
Except as expressly specified in this Agreement, you may not (a) copy or modify the IARS Application, including, but not limited to, adding new features or otherwise making adaptations that alter the functioning of the IARS Application; (b) transfer, sell, rent, lease, distribute, sublicense or otherwise assign any rights to, or any portion of, the IARS Application to any third party; or (c) make the functionality of the IARS Application available to multiple users through any means, including but not limited to distribution of the IARS Application or by uploading the IARS Application to a network or file-sharing service or through any hosting, application services provider or any other type of service. The IARS Application contains trade secrets, and in order to protect those secrets you agree not to disassemble, decompile or reverse engineer the IARS Application, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law. You must comply with any technical restrictions in the IARS Application that allow you to use the IARS Application only in certain ways.
IARS retains all right, title and interest in and to the IARS Application, including its accompanying documentation, and any backup copies, regardless of the form or media in or on which the original or other copies may subsequently exist. You agree to take any action reasonably requested by IARS to evidence, maintain, enforce or defend any of the foregoing rights. You shall not take any action to jeopardize, limit or interfere in any manner with IARS’ ownership of and rights with respect to the IARS Application, or any derivative work. Unauthorized copying or use of the IARS Application or any part thereof or failure to comply with the above restrictions will result in automatic termination of this license and will make available to IARS other legal remedies. This license is not a sale of the original or any backup copy.
IARS MAKES NO WARRANTY WITH RESPECT TO THE IARS APPLICATION. THE IARS APPLICATION IS DELIVERED “AS IS” AND WITH ALL FAULTS. IARS DOES NOT WARRANT THAT THE IARS APPLICATION, OR ANY OF ITS SUPPORTING FILES, WILL BE FREE FROM ERRORS OR THAT ERRORS WILL BE CORRECTED.
YOU ACKNOWLEDGE THAT IARS DOES NOT HAVE CONTROL OVER YOUR USE OF THE IARS APPLICATION, AND IARS DOES NOT WARRANT THE PERFORMANCE OR RESULTS THAT MAY BE OBTAINED THROUGH YOUR USE OF THE IARS APPLICATION. MEDICINE IS AN EVER-CHANGING SCIENCE AND WHILE EFFORTS HAVE BEEN MADE TO ASSURE THE ACCURACY OF THE CONTENTS ON THE IARS APPLICATION, THE IARS APPLICATION IS PURELY EDUCATIONAL AND NOT INTENDED TO OFFER ADVICE REGARDING PATIENT MANAGEMENT. YOU ASSUME ALL RISKS AND RESPONSIBILITY FOR YOUR USE OF THE IARS APPLICATION.
IARS MAKES AND YOU RECEIVE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR ALLEGEDLY EXTENDED IN ANY COMMUNICATION WITH YOU. IARS SPECIFICALLY DISCLAIMS (1) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT; (2) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (3) WARRANTIES OR CONDITIONS THAT ACCESS TO OR OPERATION OF THE IARS APPLICATION WILL BE ERROR FREE OR UNINTERRUPTED.
THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU AS SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN ADDITION, YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE IARS APPLICATION AND CONTENT THEREIN REMAINS WITH YOU. NEITHER IARS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE IARS APPLICATION WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE IARS APPLICATION OR CONTENT THEREIN, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT IARS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL IARS’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED ONE HUNDRED U.S. DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN IARS AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
TERM AND TERMINATION
The license to the IARS Application granted herein remains in effect, unless earlier terminated by you or IARS in accordance with this provision. You may terminate the license at any time by destroying all copies of the IARS Application in your possession or control. Without limiting any other terms of this Agreement, the license will automatically terminate without notice from IARS if you breach any terms of this Agreement. Upon any termination of this Agreement, you must cease all use of the IARS Application and promptly delete and destroy all copies, full or partial, of the IARS Application.
EFFECT OF TERMINATION
Termination of this Agreement by IARS shall not act as a waiver of any breach of this Agreement and shall not release you from any liability for breach of your obligations under this Agreement. IARS shall not be liable to you for damages of any kind as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by IARS shall be without prejudice to any other right or remedy of IARS under this Agreement or applicable law.
You may not use, export, re-export, import or transfer the IARS Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the IARS Application, and any other applicable Laws. In particular, but without limitation, the IARS Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the IARS Application, you represent and warrant that you are not located in any such country or on any such list. You also may not use the IARS Application for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
By accepting this Agreement you agree to defend, indemnify and hold harmless IARS, its officers, employees, agents, subsidiaries and affiliates from any direct, indirect, incidental, special, consequential or exemplary damages arising out of, relating to, or resulting from your breach of this Agreement, use of the IARS Application or any act or omission by you.
This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law or otherwise, by you without the prior written consent of IARS. Subject to the preceding sentence, the rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and assigns. Any attempted assignment other than in accordance with this section shall be null and void.
If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
RELATIONSHIP OF THE PARTIES
Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party nor their agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
IARS shall not be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, novelty of product manufacture or other unanticipated product development problems, and acts of civil and military authorities.
This Agreement shall be governed by the laws of the State of California, including its Uniform Commercial Code without reference to conflicts of laws principles. If you have any questions regarding this Agreement, please contact in writing: IARS, 44 Montgomery Street, San Francisco, CA 94194.