Effective April 24, 2015
The International Anesthesia Research Society (“IARS”, or “we”) provides its users with services (the “Services”) through its website and software applications (including any updates, new versions or new releases thereof) entitled “OpenAnesthesia Self-Study,” “OpenAnesthesia Self-Study+” and other application names as released by IARS from time to time (collectively, the “IARS Application”).
2. Eligibility and Access
The Services and IARS Content are intended solely for persons who are 13 or older. Any access to or use of the Services and IARS Content by anyone under 13 is expressly prohibited. By accessing or using the Services and IARS Content you represent and warrant that you are 18 or older or, if you are younger than 18, that you are at least 13 or older and have a parent’s or guardian’s permission to access or use the Services and IARS Content.
Certain types of content are made available through the Services and you may have access to additional content to the extent you purchase a membership in connection with use of our Services. “IARS Content” means IARS proprietary content, including but not limited to, IARS trademarks and logos made available through the Services, excluding Third Party Materials (as defined below).
5. Residency Program Director Data Sharing
6. Third Party Materials and Agreements
You may be able to access, review, display or use third party services, resources, content or information (“Third Party Materials”) via the Services. You acknowledge sole responsibility for, and assume all risk arising from, your access to, use of or reliance upon any such Third Party Materials, and IARS disclaims any liability that you may incur arising from your access to, use of or reliance upon such Third Party Materials via an IARS Application. You further assume all responsibility for any data charges that you may incur for use of the IARS Application and/or access to any Third Party Materials. Your ability to access or link to Third Party Materials or third party services does not imply any endorsement by IARS of Third Party Materials or any such third party services. You acknowledge and agree that IARS: (a) is not responsible for the availability or accuracy of such Third Party Materials or the products or services on or available from such Third Party Materials; (b) has no liability to you or any third party for any harm, injuries or losses suffered as a result of your access to, reliance on or use of such Third Party Materials; (c) does not undertake or assume any duty to monitor the IARS Application for inappropriate or unlawful content; and (d) does not make any promises to remove Third Party Materials from being accessed through the Services. Notwithstanding the foregoing, IARS reserves the right to block or remove Third Party Materials at any time in IARS’ sole discretion.
IARS claims no ownership interest in any Third Party Materials and expressly disclaims any liability concerning those materials.
8. IARS Application License
Proprietary Rights. The copy of the IARS Application is licensed, not sold, to you. You agree that IARS and its licensors own all right, title and interest in and to the IARS Application, including all intellectual property rights therein, and that IARS retains ownership of all copies of the IARS Application even after installation on your mobile device. The IARS Application is protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark and other proprietary rights notices or markings appearing on the IARS Application as delivered to you.
Export Control. 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.
9. Copyrighted Materials: No Infringing Use
You may not use the Services to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party.
10. General Prohibitions
You agree not to do any of the following while using the Services or IARS Content:
- Use, display, mirror, frame or utilize framing techniques to enclose the Services, or any individual element or materials within the Services, IARS’ name, any IARS trademark, logo or other proprietary information, the content of any text or the layout and design of any page or form contained on a page, without IARS’ express written consent;
- Attempt to probe, scan or test the vulnerability of any IARS system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by IARS or any of IARS’ providers or any other third party (including another user) to protect the Services or IARS Content;
- Access or search the Services or IARS Content through the use of any engine, software, tool, agent, device or mechanism other than the software provided by IARS or other generally available third party web browsers;
- Use any meta tags or other hidden text or metadata utilizing a IARS trademark, logo URL or product name without IARS’ express written consent;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or IARS Content to send altered, deceptive or false information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or IARS Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network connected to the Services;
- Use the Services to do anything misleading, malicious or discriminatory;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Following termination of your account, we may retain an archived copy of your records as required by law or for legitimate business purposes.
In connection with the purchase of a membership in connection with use of our Services, to the extent a user notifies IARS within 30 days of purchasing such membership that such user is experiencing difficulty with the functionality of the IARS Application and IARS is unable to resolve such issue, such determination to be made in IARS’ reasonable discretion, then IARS will provide such user with a partial refund of such user’s membership fee. The percentage of such user’s membership fee that is refunded shall equal the percentage obtained by dividing (i) the total number of questions in the IARS question bank that were unanswered by such user at the time IARS was notified of the functionality issue by (ii) the total number of questions in the IARS question bank at the time IARS was notified of the functionality issue.
THE SERVICES, IARS CONTENT, AND THIRD PARTY MATERIALS ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, IARS EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. IARS MAKES NO WARRANTY THAT THE SERVICES, IARS CONTENT, OR THIRD PARTY MATERIALS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM IARS OR THROUGH THE SERVICES OR IARS CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. Medicine is an ever-changing science and while efforts have been made to assure the accuracy of the IARS Content, the IARS APPLICATION IS PURELY EDUCATIONAL AND IS NOT INTENDED to offer advice regarding patient management.
15. Limitation of Liability
IN NO EVENT WILL IARS’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT THEREIN 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.
16. Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of IARS used herein are trademarks or registered trademarks of IARS. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
17. Dispute Resolution
Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND IARS AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICES. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to IARS, to you via any other method available to IARS, including via e-mail. The Notice to IARS should be addressed to: 44 Montgomery Street, Suite 1605, San Francisco, CA 94104 (the “Arbitration Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (the “Demand”). If you and IARS do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or IARS may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (the “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If you are required to pay a filing fee to commence an arbitration against IARS, then IARS will promptly reimburse you for your confirmed payment of the filing fee upon IARS’ receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000, in which case you are solely responsible for the payment of the filing fee.
Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and IARS agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (b) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
No Class Actions. YOU AND IARS AGREE THAT YOU AND IARS MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
Improperly Filed Claims. All claims you bring against IARS must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should either you or IARS file a claim contrary to this Dispute Resolution section, the other party may recover reasonable attorneys’ fees and costs up to $5,000, unless such claim is withdrawn within thirty (30) days of receipt of notice that the claim was improperly filed.
18. Entire Agreement
22. Relationship of the Parties
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services (“Feedback”). You may submit Feedback by emailing us at [email protected] You acknowledge and agree that all Feedback will be the sole and exclusive property of IARS and you hereby irrevocably assign to IARS and agree to irrevocably assign to IARS all of your right, title, and interest in and to all Feedback, including without limitation, all worldwide patent rights, copyright rights, trade secret rights and other proprietary or intellectual property rights therein. At IARS’ request and expense, you will execute documents and take such further acts as IARS may reasonably request to assist IARS to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.