The following software and material related thereto is owned by Purcell Associates, Inc. Unauthorized use or reproduction is strictly prohibited.
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THIS SOFTWARE. BY SUBSCRIBING, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS, PLEASE DO NOT SUBSCRIBE AND DO NOT USE THIS SERVICE.
Terms of Service
THESE TERMS OF SERVICE (“AGREEMENT”) are expressly agreed to by YOU (“User”) in return for the non-exclusive limited license to use the copyrighted material known as Streak Retinoscopy: An Optical Simulator (“Software”) owned by Purcell Associates, Inc. (“Purcell Associates”) subject to the following terms and conditions:
1. Service. This is an Agreement for access and use of the Software. Purcell Associates may limit the use of certain features of the Software in its sole discretion. Purcell Associates may suspend, limit, or terminate the User’s use of the Software for any reason and at any time without notice. User further authorizes Purcell Associates to use a third party to process payments, and consents to the disclosure of User’s payment information to such third party. All payment obligations are non-cancelable and all amounts paid are non-refundable. The subscription term shall be monthly or annually, based on the user’s selection. Unless either party gives the other written notice that it does not intend to renew the subscription, this Agreement will be automatically renewed on a monthly or annual basis.
2. Modifications. Purcell Associates modifies the Software from time to time, including by adding or deleting features and functions, in an effort to improve the experience of its users. Nothing in this Agreement shall prohibit Purcell Associates from making such changes to the Software. Purcell Associates reserves the right to provide some or all elements of the Software. Each year, User may or may not renew its agreement with Purcell Associates – if the agreement is not renewed, the User’s use of the Software will terminate.
3. Title. The User agrees that Purcell Associates owns and holds title to the Software and all subsequent copies or derivatives thereof created by the User in violation of this Agreement. Furthermore, title, ownership rights, and intellectual property rights in the Software shall remain with Purcell Associates. The Software is protected by copyright and other intellectual property laws and international treaties.
4. Purcell Associates’ Proprietary Rights. The Software, including all intellectual property rights therein and derivatives and modifications thereto, belong to and is the property of Purcell Associates or its licensors. The User may not make any copies of the Software or those portions of Purcell Associates one or more products. All Software will remain on Purcell Associates’ server and shall not be downloaded onto any other device. Purcell Associates’ logo, trademarks, the Software and any portions thereof are the property of Purcell Associates. The appearance, layout, color scheme, and design of the website are protected trade dress and the User does not receive any right or license to use the foregoing.
5. User’s Proprietary Rights. All of the User’s personal data collected by or supplied to Purcell Associates will at all times be owned by the individual identified by any information relating to an identified or identifiable natural person including name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person (collectively, “Personal Data”). This Agreement does not grant Purcell Associates any ownership rights to the User’s materials, Personal Data, or any related sensitive information including, but not limited to, personal financial account information, Social Security numbers and other similar identifiers. The User hereby grants permission to Purcell Associates to transmit the User’s Personal Data and related information to any third party, as necessary to provide use of the Software to the User.
6. Update Policy. Purcell Associates may, from time to time, revise the performance of its products and in doing so, incur no obligation to furnish such revisions to any the User. At Purcell Associates’ option, Purcell Associates may provide such revisions to User.
7. Termination. If the User terminates or is in breach of their agreement with Purcell Associates, this Agreement and access to the Software will immediately terminate. If any one or more of the provisions of this Agreement is breached by the User, access granted by this Agreement is hereby terminated. In the event of termination, all the provisions of this Agreement which operate to protect the rights of Purcell Associates shall continue in full force.
8. Indemnification. The User agrees to defend, indemnify and hold harmless Purcell Associates, its owners, agents, suppliers, and its resellers from and against liab ilities, costs, damages and expenses (including settlement costs and attorneys’ fees) arising from any claims from anybody that result from or relate to your use, reproduction or distribution of the Software.
9. Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this Agreement, Purcell Associates has the unequivocal right to obtain timely injunctive relief to protect the proprietary rights of Purcell Associates without any requirement to post bond.
10. Governing Law. This Agreement shall be interpreted in accordance with the laws of the State of Ohio. The parties irrevocably and exclusively submit to jurisdiction and venue in Hamilton County Ohio. In the event any part of this Agreement is invalidated by a court or legislative action of competent jurisdiction, the remainder of this Agreement shall remain in effect.
11. Legal Fees. In the event of legal action brought by either party, Purcell Associates shall be entitled to reimbursement of legal fees as set by the court if Purcell Associates is the prevailing party.
12. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any prior agreements. This Agreement may only be changed by Purcell Associates, in writing, and acknowledged by the User.
13. DISCLAIMER. To the maximum extent permitted by applicable law, the use of the Software is provided to the User “as-is” without warranty or condition of any kind. Purcell Associates and its owners, agents, suppliers and resellers hereby disclaim all warranties and conditions of any kind with regard to the Software, and the authorized product material including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement. No statement or information, whether oral or written, obtained from Purcell Associates in any means or fashion shall create any warranty not expressly and explicitly set forth in this Agreement.
14. NO WARRANTIES. Purcell Associates makes no express or implied warranty of any kind with regard to performance or accuracy of data of any kind nor for any consequential damages resulting therefrom whether through loss or inaccuracy of data of any kind nor for any consequential damages resulting therefrom whether through Purcell Associates negligence or other action.
15. LIMITATION OF REMEDIES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL PURCELL ASSOCIATES, ITS OWNERS, ITS AGENTS, OR ITS SUPPLIERS OR RESELLERS, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER OR ANY AND ALL OTHER PERSONAL OR COMMERCIAL DAMAGES OR LOSSES ARISING FROM THE USE OR INABILITY TO USE THE PROGRAMS (WHETHER OR NOT DUE TO ANY DEFECTS THEREIN). IN NO EVENT WILL PURCELL ASSOCIATES BE LIABLE FOR ANY DAMAGES EVEN IF PURCELL ASSOCIATES SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM PURCELL ASSOCIATES’ NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. THE USER UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK AND AN ESSENTIAL PART OF THIS AGREEMENT. THE USER UNDERSTANDS AND AGREES THAT ABSENT THE USER’S AGREEMENT TO THIS LIMITATION OF LIABILITY, PURCELL ASSOCIATES WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO THE USER.
16. Electronic Communications. The User consents to receive electronic communications and agree that all agreements, notices, disclosures and other communications that Purcell Associates provides electronically satisfy any legal requirement that such communications be in writing.
17. Survival. Section 3 “Purcell Associates’ Proprietary Rights” Section 9 “Indemnification,” Section 14 “Limitation of Remedies”
18. User Acknowledgment. The User hereby accepts all the terms and conditions of this Agreement without exception, deletion or alteration. User recognizes that any use of Software without the acceptance of this Agreement will be considered a breach of contract, damages and otherwise unlawful and an unauthorized use of Purcell Associates’ trade secrets and proprietary products.