WEBSITE TERMS AND CONDITIONS OF USE
The website located at www.datascopewms.com (“Site”) is a copyrighted work belonging to Datascope North America, Inc. (“DATASCOPE”, “Company”, “us”, “our”, and “we”). Certain features of the Site may be subject to additional guidelines, terms, or rules, which will be posted on the Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 15) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. Disclaimer: All information in this Site is provided on an “as is” and “as available” basis and is for general information only, with no guarantee of completeness, accuracy, timeliness or of the results obtained from the use of this information, and without warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. We make no warranty that the Site will meet your requirements, will be available on an uninterrupted, timely, secure, or error-free basis, or will be accurate, reliable, free of viruses or other harmful code, complete, legal, or safe. In no event will DATASCOPE, its related subsidiaries or affiliates, or the principals, partners, agents or employees thereof be liable to you or anyone else for any decision made or action taken in reliance on the information in this Site or for any consequential, special or similar damages, loss of profits, business interruption, or loss of data, even if advised on the possibility of such damages. If applicable law requires any warranties with respect to the Site, all such warranties are limited in duration to ninety (90) days from the date of first use. In the event your jurisdiction does not allow the exclusion of implied warranties and other representations, these exclusions may not necessarily apply to you.
2. Scope and Acceptance of these Terms: These Terms will apply to your access and use of this Site and the Content in addition to any further or different disclaimers, legal notices, agreements or Terms and Conditions that may apply to your use of or access to any particular Content.
These Terms form a legally binding agreement between you and DATASCOPE. By accessing or using this Site and/or the Content, you accept and agree to abide by these Terms. Should you not agree with these Terms, you must immediately leave this Site and not attempt to access or use this Site or the Content as your access and/or use of this Site or the Content will automatically bind you to these Terms.
3. Modifications: DATASCOPE reserves the right, in DATASCOPE’s sole discretion, to amend and/or replace any of, or the whole of, these Terms with or without notice to you. Such amendments shall supersede and replace any previous Terms and shall be made available on this Site. Each time you access this Site and/or use the Content, you will be consenting, by such access and/or use, to these Terms, as amended and/or replaced from time to time. If you are not satisfied with the amended Terms, you should refrain from using this Site. You agree that DATASCOPE will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.
4. Links to Other Sites: This Site may contain links to other independent third-party sites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. DATASCOPE is not responsible for and does not endorse or accept any responsibility for the availability, contents, products, services or use of any Third-Party Site, any Site accessed from a Third-Party Site, or any changes or updates to such sites. DATASCOPE makes no guarantees about the content or quality of the products or services provided by such sites. DATASCOPE is not responsible for webcasting or any other form of transmission received from any Third-Party Site. DATASCOPE is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by DATASCOPE of the Third-Party Site. You acknowledge that you bear all risks associated with access to and use of content provided on a Third-Party Site and agree that DATASCOPE is not responsible for any loss or damage of any sort you may incur from dealing with a third party. You should contact the site administrator for the applicable Third-Party Site if you have any concerns regarding such links or the content located on any such Third-Party Site.
4.1 Other Users. Each Site user is solely responsible for any and all of its own user content. Because we do not control user content, you acknowledge and agree that we are not responsible for any user content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any user content. Your interactions with other Site users are solely between you and such users. You agree that DATASCOPE will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site user, we are under no obligation to become involved.
4.2 Release. You hereby release and forever discharge DATASCOPE (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, other Site users or any Third-Party Site links). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
5. Security: In order to ensure the security and reliable operation of this Site and the Content to all users of this Site, DATASCOPE hereby reserves the right to take whatever action DATASCOPE may deem necessary to preserve the security, integrity, and reliability of DATASCOPE’s servers, network and back-office applications.
You may not utilize this Site in any manner that could damage, disable, overburden, impair or compromise the security of any DATASCOPE server or the networks connected to any DATASCOPE server or tamper with this Website in any manner whatsoever or interfere with any other person’s use and enjoyment of this Website. You may not attempt to gain unauthorized access to this Site, other accounts, computer systems or networks connected to any DATASCOPE server through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through this Site. Any person or entity which does so, or attempts to do so, shall be held criminally liable and shall also be liable, on an indemnity basis, for any direct and indirect damages or loss that DATASCOPE suffers or sustains.
In addition to the above, any user who: intentionally accesses or intercepts any data without authority or permission to do so; intentionally and without authority to do so, interferes with data in a way which causes such data to be modified, destroyed or otherwise rendered ineffective; utilizes any device or computer program in order to unlawfully overcome security measures designed to protect this Website and the Content or access thereto; commits any act described above with the intent to interfere with access to this Website so as to constitute a denial, including a partial denial of access to and/or use of this Website to legitimate users; performs or threatens to perform any of the above acts for the purpose of obtaining any unlawful proprietary advantage by undertaking to cease or desist from such action, or by undertaking to restore any damage caused as a result of those actions; performs any of the acts described above for the purpose of obtaining any unlawful advantage by causing fake data to be produced with the intent that it be considered or acted upon as if it were authentic; or aids or abets someone to commit any of the foregoing acts, shall, notwithstanding criminal prosecution, be liable for all direct and indirect resulting liability, loss or damages suffered and/or incurred by DATASCOPE and DATASCOPE’S affiliates, agents and/or channel partners on an indemnity basis.
5.1. Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
(a) You agree not to use the Site to collect, upload, transmit, display, or distribute any user content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(b) In addition, you agree not to: (i) upload, transmit, or distribute to or through the Site any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Site to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site (or to other computer systems or networks connected to or used together with the Site), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Site; or (vi) use software or automated agents or scripts to produce multiple accounts on the Site, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
5.2 Enforcement. We reserve the right (but have no obligation) to review any user content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your user content, termination your account in accordance with Section 18, and/or reporting you to law enforcement authorities.
6. Intellectual Property Rights: As used in these Terms, “Intellectual Property Rights” means patents of any type, design rights, utility models or other similar invention rights, copyrights, trademarks, service marks, logos, designations, insignias, brand and trade names, business names, domain names, trade secrets or confidentiality rights and any other intangible property rights, including applications for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected or registered or capable of registration, now existing or hereafter filed, issued or acquired.
All Intellectual Property Rights to this Site and the Content are the property of, or are licensed to, DATASCOPE and as such are protected from infringement by local and international legislation and treaties. Irrespective of the existence of copyright, you acknowledge that DATASCOPE is the proprietor of all the Content (except where a third party is indicated as the proprietor), whether it constitutes confidential information or not, and that you have no right, title or interest in any such Content.
6.1 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Site, whether in whole or in part, or any content displayed on the Site; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to these Terms. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copied thereof.
7. Unsubscribe: Should you wish to unsubscribe from any mailing lists or registrations, you may follow the “unsubscribe” instructions as provided in email communications, and/or contact the webmaster of the appropriate site at email@example.com
8. Cookies and Log Files: Cookies may be used on some pages of our website. “Cookies” are small text files placed on your hard drive that allow us to provide a more customizable website experience. If you are concerned about cookies, most browsers permit you to decline cookies. In most cases, it is possible to disable cookies and still fully navigate our website, however some other website functionality may be affected. In order to properly maintain our Site, we may anonymously log information on our operational systems, and identify categories of visitors by items such as domains and browser types.
10. Your Account: Certain features or services offered on or through this Site may require you to open an account (including setting up a username and password). You are entirely responsible for maintaining the confidentiality of the information you hold for your account, including your password, and for any and all activity that occurs under your account as a result of your failing to keep this information secure and confidential. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You agree to notify DATASCOPE immediately of any unauthorized use of your account or password, or any other breach of security. You may be held liable for losses incurred by DATASCOPE or any other user of or visitor to the Site due to someone else using your username, password, or account as a result of your failing to keep your account information secure and confidential.
You may not use anyone else’s username, password, or account at any time without the express permission and consent of the holder of that username, password, or account. DATASCOPE cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations. DATASCOPE may suspend or terminate your account in accordance with the terms herein.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY U.S. DOLLARS ($50.00 USD). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OUR RELATING TO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
12. Indemnity: You agree that no joint venture, partnership, employment, or agency relationship exists between you and DATASCOPE as a result of this agreement or use of DATASCOPE’s Site. You agree to indemnify and hold DATASCOPE (and its parents, subsidiaries, affiliates, officers and employees) harmless from any claim, demand, or damage, including costs and reasonable attorneys' fees, asserted by any third party due to or arising out of (a) your use of the Site, (b) your violation of these Terms, (c) your violation of applicable laws or regulations or (d) your user content. DATASCOPE reserves the right, at your expense, to assume the exclusive defense and control of any matters for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of DATASCOPE. DATASCOPE will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
14. Governing Law and Venue: Claims for enforcement, breach or violation of duties or rights under this agreement shall be adjudicated under the laws of the State of North Carolina, without reference to conflict of laws principles. All other claims, including without limitation claims under or for violation of state consumer protection laws, unfair competition laws, and in tort, shall be adjudicated under the law of your state of residence. You hereby irrevocably consent to the exclusive jurisdiction and venue of courts in Mecklenburg County, North Carolina, U.S.A. in all disputes arising out of or relating to the use of DATASCOPE’s Site.
15. Arbitration: Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: 4455-G Morris Park Drive, Charlotte, North Carolina 28227. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
(m) Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Mecklenburg County, North Carolina, for such purpose.
16. General Provisions: DATASCOPE’s performance of this agreement is subject to existing laws and legal process, and nothing contained in these Terms is in derogation of DATASCOPE’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of DATASCOPE’s Site or information provided to or gathered by DATASCOPE with respect to such use. Your relationship to DATASCOPE is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without DATASCOPE’S prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. DATASCOPE may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding on assignees.
17. Severability: These Terms constitute the entire agreement between you and us regarding the use of our Site. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
18. Term and Termination: Subject to this Section, these Terms will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site (including your account) at any time for any reason at our sole discretion, including for any use of the Site in violation of these Terms. Upon termination of your rights under these Terms, your account and right to access and use the Site will terminate immediately. You understand that any termination of your account may involve deletion of your user content associated with your account from our live database. DATASCOPE will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your account or deletion of your user content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: 1, 4, 5, 11, 12, 14, 15, 16, 18, 19.
19. Copyright / Trademark Information. Copyright © 2017, 2018 Datascope North America, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.