PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY USING THE WEBSITES WWW.BIODIGITAL.COM AND WWW.BIODIGITALHUMAN.COM AND OTHER FEATURES, CONTENT, OR APPLICATIONS (COLLECTIVELY, THE "SITES") OFFERED BY BIODIGITAL, INC. ("BD"), YOU SIGNIFY YOUR ASSENT TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU DO NOT HAVE ANY RIGHT TO USE THE SITES OR SERVICES. BD'S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY BD, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
The purpose of the Sites, owned and operated by BD, a Delaware corporation, is to provide an interactive platform to simulate the human body (the "Services"). The Sites are not intended to be used for diagnostic, clinical or decision making purposes. This Agreement applies to all users of the Sites and Services including users who contribute content, information and other materials or services on the Sites. The Sites are accessed by you ("User" or "you") under the following terms and conditions:
ACCESS TO THE SERVICES.
Subject to the terms and conditions of this Agreement, BD may offer to provide the Services, as described more fully on the Sites, and which are selected by you, solely for your own use, and not for the use or benefit of any third party. Services shall include, but not be limited to, any services BD performs for you, as well as the offering of any materials displayed or performed on the Sites or the Services (including, but not limited to text, graphics, photographs, images, illustrations, audio clips and video clips, also known as the "Content"). BD may change, suspend or discontinue the Services including any Content for any reason, at any time, including the availability of any feature, database, or content. BD may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. BD reserves the right, at its discretion, to modify this Agreement or Content at any time by posting a notice on the Sites, or by sending you a notice via e-mail or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Services following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
You certify to BD that if you are an individual (i.e., not a corporation) you are at least 18 years of age. You also certify that you are legally permitted to use the Services and access the Sites, and take full responsibility for the selection and use of the Services and access of the Sites. This Agreement is void where prohibited by law, and the right to access the Sites and use the Services is revoked in such jurisdictions.
BD will use reasonable efforts to ensure that the Sites and Services are available twenty-four hours a day, seven days a week. However, there will be occasions when the Sites and/or Services will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. Every reasonable step will be taken by BD to minimize such disruption where it is within BD's reasonable control. YOU AGREE THAT NEITHER BD NOR THE SITES WILL BE LIABLE IN ANY EVENT TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION, MODIFICATION, DISCONTINUANCE OR LACK OF AVAILABILITY OF THE SITES, THE SERVICES, YOUR USER CONTENT (AS DEFINED HEREIN) OR OTHER CONTENT.
You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Sites or otherwise use the Services, including, without limitation, modems, hardware, software, and long distance or local telephone service. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Services.
You are responsible for all of your activity in connection with the Services and accessing the Sites. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any BD user. You shall not use any part of the Sites or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity. You will not run Maillist, Listserv, any form of auto-responder, or spam on the Sites or through the Services.
NO MEDICAL ADVICE.
WE ARE NOT A HEALTH CARE PROVIDER AND WE DO NOT PROVIDE MEDICAL ADVICE. YOU SHOULD NOT RELY ON THE INFORMATION PROVIDED ON THE SITES OR SERVICES AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, TREATMENT. THE SERVICES ARE NOT INTENDED TO BE USED BY CLINICIANS IN MAKING TREATMENT DECISIONS. YOU ARE ENCOURAGED TO SEEK PROFESSIONAL MEDICAL DIAGNOSIS AND TREATMENT FOR ANY MEDICAL CONDITION, AND TO DISCUSS INFORMATION FROM THE SITES AND SERVICES WITH YOUR HEALTHCARE PROVIDER. INFORMATION PROVIDED ON THE SITES AND SERVICES IS PROVIDED FOR INFORMATIONAL PURPOSES AND IS IN NO WAY INTENDED TO SUBSTITUTE CONSULTING A MEDICAL PROFESSIONAL. NOTHING STATED OR POSTED ON THE SITES OR AVAILABLE THROUGH ANY SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE, THE PROVISION OF MEDICAL CARE, OR A TOOL RELIED ON BY CLINICIANS. IF YOU RELY ON ANY OF THE INFORMATION PROVIDED BY THE SITES OR SERVICES, YOU DO SO SOLELY AT YOUR OWN RISK.
This Agreement does not create, between you and BD, a business associate relationship, as defined in the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and regulations promulgated thereunder by the U.S. Department of Health and Human Services. Therefore, you must not disclose to BD any information which may constitute Protected Health Information as defined in the Privacy Rule associated with HIPAA. You represent and warrant that you will not disclose any such information in your possession to BD through your use of the Sites and Services.
CONTENT OF THE SITES AND SERVICES.
You may, to the extent the Sites expressly authorize you to do so, download or copy software accessible from the Sites or the Content, and other items displayed on the Sites or Services for download, for personal use only, provided that you maintain all copyright and other notices contained in such Content; otherwise, you shall not store any significant portion of any Content in any form. Copying or storing of any Content for other than personal, noncommercial use is expressly prohibited without prior written permission from BD, or from the copyright holder identified in such Content's copyright notice. All trademarks, service marks, and trade names which appear on the Sites or through the Services (other than those appearing in any Content posted by a User) are proprietary to BD and/or third parties. You shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Services.
The Sites are protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided in this Section of this Agreement), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part. In the event you enter into an additional agreement with BD for the custom development of software or other materials, your ownership, if any, of such custom software or materials does not affect BD's ownership rights in the underlying Content offered by BD on the Site and Services. You acknowledge and agree that if you use any of the Services to contribute Content to the Sites or Services ("User Content"), you hereby do and shall grant BD a non-exclusive, worldwide, royalty-free, transferable, sublicensable right to use, modify, reproduce, distribute, prepare derivative works of, display, publish, perform and otherwise fully exploit such User Content (including all related intellectual property rights) in any media format and through any media channel and to allow others to do so. To the extent allowed by law, the foregoing includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "Moral Rights." To the extent you retain any such Moral Rights under applicable law, you hereby ratify and consent to any action that may be taken with respect to such moral rights by BD and agree not to assert any Moral Rights with respect thereto. You also hereby do and shall grant each user of the Sites and the Services a nonexclusive license to access and use your User Content as permitted through the functionality of the Sites and the Services and under this Agreement. You warrant, represent and agree that you have the right to grant BD and the Sites the rights set forth above. You represent, warrant and agree that you will not contribute any User Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party, (b) reveals any trade secret, unless you own the trade secret or have the owner's permission to post it, (c) infringes any intellectual property right of another or the privacy or publicity or any other rights of another, (d) is libelous, defamatory, obscene, pornographic, abusive, indecent, threatening, harassing, hateful, offensive or otherwise violates any law or right of any third party, (e) contains a virus, trojan horse, worm, time bomb or other computer programming routine or engine that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information, or (f) remains posted after you have been notified that such User Content violates any of sections (a) to (e) of this sentence.
BD reserves the right to remove any User Content from the Sites and the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content or if BD is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You understand that BD shall have the right to reformat, excerpt or translate any User Content submitted by you, that all information publicly or privately transmitted through the Sites and the Services is the sole responsibility of the person from whom such information originated and that BD will not be liable for any errors or omissions in content, and that BD cannot guarantee the identity of any other Users with whom you may interact in the course of using the Sites and the Services or the authenticity of data provided by other Users. You are responsible for all User Content posted or developed under your username, including User Content contributed by a third party whom you have authorized to post User Content under your username. If you believe User Content residing on the Sites or the Services infringes a copyright, please see our Copyright Policy below.
The images on the Sites may be used royalty free for non-commercial, private educational use only. This includes presentations, lectures and patient education material. Any commercial or public domain use of the images included in books, websites, videos, DVD’s and any other use of the images in the public domain (e.g. advertising) will be subject to formal permission and an additional license. Please contact BD for additional information.
Any comments, suggestions, or feedback relating to the Sites or the Services (collectively "Feedback") submitted to BD shall become the property of BD or its designee. BD will not be required to treat any Feedback as confidential, and will not be liable for any ideas (including without limitation, product or advertising ideas) and will not incur any liability as a result of any similarities that may appear in our future Sites, Services, or operations. Without limitation, BD will have exclusive ownership of all present and future existing rights to the Feedback of every kind and nature everywhere and will be entitled to use the Feedback for any commercial or other purpose whatsoever, without compensation to you or any other person sending the Feedback. You acknowledge that you are responsible for whatever material you submit, and you, not BD, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.
BD may provide certain basic features of the BD Human Site and Services at no charge (the "Free Account"). Free Accounts include the following features: exploration of anatomy and conditions, downloading images and creation and sharing of public bookmarks. BD reserves the right to remove, add or modify features, as well as terminate Free Accounts at any time. Without limiting the generality of the foregoing, BD may delete any or all User Content on a Free Account which is inactive for ninety (90) days or more without providing additional notice. You may choose to purchase a Premium Account which includes enhanced features. The Premium Account includes the following features: exploration of anatomy and conditions, downloading images, creation and sharing of public and private bookmarks, and testing with peer comparison. BD reserves the right to remove, add or modify Premium Account features at any time.In the event you purchase a Premium Account, the fees for your Premium Account will be billed from the date you convert to a Premium Account and on each monthly or yearly renewal thereafter, depending on which account you select, unless and until you cancel your Premium Account. BD will automatically bill your credit card each month or year on the calendar day corresponding to the commencement of your Premium Account. In the event your Premium Account began on a day not existing in a given month or year, BD will bill your credit card on the last day of such month or year. For example, if your Premium Account began on January 31st, February 28th is the next time your credit card would be billed. You acknowledge that the amount billed each month or year may vary if you purchase promotional offers, change your account, or the amount of applicable sales tax varies, and you authorize us to charge your credit card for such varying amounts. BD may also periodically authorize your credit card in anticipation of account or related charges to ensure your card's validity.
BD may change the fees and charges in effect, or add new fees and charges from time to time, but we will give you advance notice of these changes by e-mail and the option to cancel your subscription if you do not accept the new fees. If you want to change your credit card information, you may do so by accessing your "Account" page. If your credit card reaches its expiration date, your continued use of our paid services constitutes your authorization for us to continue billing you and you remain responsible for updating your credit card information. It is your responsibility to keep your contact and payment information current.
BD will automatically charge your credit card monthly or yearly, depending upon which Premium Account you select. If any fee is not paid in a timely manner, or BD is unable to process your transaction using the credit card information provided, BD reserves the right to revoke access to your Premium Account and User Content. If you do not bring your BD balance current within ten (10) days after BD notifies you that your account is in arrears, BD reserves the right to use our discretion to remove User Content associated with your Premium account, and to convert your Premium Account to a Free Account.
Your Premium Account will continue in effect unless and until you cancel it or we terminate it. You must cancel your Premium Account before it renews each month or year in order to avoid billing of the next month's or year's fees to your credit card. Premium Accounts are prepaid and are non-refundable. BD DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL MONTHS OR YEARS. You may cancel your Premium Account at any time, and cancellation will be effective immediately. If you wish to cancel your Premium Account you may do so via your "Account" page. Should you elect to cancel your Premium Account, please note that you will not be issued a refund for the most recently (or any previously) charged monthly fees.
BD has no special relationship with or fiduciary duty to you. You acknowledge that BD has no control over, and no duty to take any action regarding: which users gain access to the Sites or Services; what Content you access via the Sites or Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release BD from all liability for your having acquired or not acquired Content through the Sites. The Sites or Services may contain, or direct you to sites containing, information that some people may find offensive or inappropriate. BD makes no representations concerning any content contained in or accessed through the Sites or Services, and BD will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Sites. THE SERVICES, CONTENT, SITES AND ANY SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT ALLOWED BY LAW, BD DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, RELIABILITY, AVAILABILITY, COMPLETENESS, LEGALITY OR OPERABILITY OF THE MATERIAL OR SERVICES PROVIDED ON THE SITES AND THROUGH THE SERVICES. BY USING THE SITES AND THE SERVICES, YOU ACKNOWLEDGE THAT BD IS NOT RESPONSIBLE OR LIABLE FOR ANY HARM RESULTING FROM (1) USE OF THE SITES OR SERVICES; (2) DOWNLOADING INFORMATION CONTAINED ON THE SITES OR SERVICES; (3) UNAUTHORIZED DISCLOSURE OF IMAGES, INFORMATION OR DATA THAT RESULTS FROM THE UPLOAD, DOWNLOAD OR STORAGE OF CONTENT POSTED BY USERS; (4) THE TEMPORARY OR PERMANENT INABILITY TO ACCESS OR RETRIEVE ANY USER CONTENT FROM THE SITES OR SERVICES, INCLUDING, WITHOUT LIMITATION, HARM CAUSED BY VIRUSES, WORMS, TROJAN HORSES, OR ANY SIMILAR CONTAMINATION OR DESTRUCTIVE PROGRAM; (5) CONTENT POSTED IN ANY FORUM OR COMMUNITY AREA OF THE SITES OR SERVICES; AND (6) UNAUTHORIZED DISCLOSURE OF IMAGES, INFORMATION OR DATA THAT RESULTS FROM THE UPLOAD, DOWNLOAD OR STORAGE OF POSTED CONTENT.
THIRD PARTY WEBSITES.
Users of the Sites may gain access from the Sites to third party sites on the Internet through hypertext or other computer links on the Sites. Third party sites are not within the supervision or control of BD or the Sites. Unless explicitly otherwise provided, neither BD nor the Sites make any representation or warranty whatsoever about any third party site that is linked to the Sites, or endorse the products or services offered on such site. BD and the Sites disclaim: (a) all responsibility and liability for content on third party websites and (b) any representations or warranties as to (i) the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and (ii) the functionality of third party sites if you export User Content onto them. You hereby irrevocably waive any claim against the Sites or BD with respect to such sites and third party content.
REGISTRATION AND SECURITY.
As a condition to using Services, you may be required to supply BD with certain registration information. You shall provide BD with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your access to and/or use of the Sites or Services. You may not (i) select or use as your username a name of another person with the intent to impersonate that person; or (ii) use as your username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as your username a name that is otherwise offensive, vulgar or obscene. You shall never use another User's account or registration information, for BD or any third party services you access through BD, without permission. BD reserves the right to refuse registration of, or cancel a username in its discretion. You shall be responsible for maintaining the confidentiality of your BD password.
You hereby irrevocably authorize BD to disclose your personally identifiable information at the request of any state, deral or other governmental agency or in response to any judicial process (including, without limitation, a subpoena).
You will indemnify and hold BD, its directors, officers, employees, agents, and representatives harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of your access to the Sites or use of the Services, your violation of this Agreement, or your infringement, or the infringement by any third party using your registration information, of any intellectual property or other right of any person or entity.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL BD, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, MEMBERS, AGENTS AND REPRESENTATIVES BE LIABLE WITH RESPECT TO THE SITES OR THE SERVICES FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (B) DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, USER CONTENT OR OTHER INTANGIBLES; (C) DAMAGES FOR UNAUTHORIZED USE, NON-PERFORMANCE OF THE SITES, ERRORS OR OMISSIONS; OR (D) DAMAGES RELATED TO DOWNLOADING OR POSTING CONTENT. BD'S AND THE SITES' COLLECTIVE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO USER.
Either party may terminate the Services at any time by notifying the other party by any means. BD may also terminate or suspend any and all Services and access to your account and the Sites immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Any fees paid hereunder are non-refundable. Upon any such termination, your right to use the Services, access the Sites, your account and any Content will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and BD agree that any cause of action arising out of or related to the Sites or Services must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in New York, New York. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in New York, New York. Use of the Sites and Services is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this section.
© 2014 BIODIGITAL, INC. All rights reserved.
Last Updated: September 2013
BD has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (http://lcweb.loc.gov/copyright/legislation/dmca.pdf) and other applicable laws. The address of BD's Designated Agent to Receive Notification of Claimed Infringement ("Designated Agent") is listed at the end of this policy. It is BD's policy to (1) block access to or remove Content that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or Users; and (2) remove and discontinue service to repeat offenders. If you believe that Content residing on or accessible through BD's Sites or Services infringes a copyright, please send a notice of copyright infringement by facsimile or regular mail (not e-mail) to BIODIGITAL, INC., Attn: Legal (Copyright Agent), 594 Broadway, Suite 606, New York, NY 10012, 212-226-0326, containing the following information:
Once proper infringement notification is received by the Designated Agent, it is BD's policy to remove or disable access to the infringing Content and to notify the Content provider or User that it has removed or disabled access to the Content; that repeat offenders will have the infringing Content removed from the Service and that BD will terminate such content provider's or User's access to the Sites and the Service.
In the event that BD notifies User that BD has received proper infringement notification about User's Content, User may elect to send BD a counter notice.
Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
The process for counter-notifications is governed by Section 512(g) of the Digital Millennium Copyright Act: http://www.copyright.gov/legislation/dmca.pdf
To file a counter notification with BD, User must provide the following items to us in writing:
Send the written communication to the following address:BIODIGITAL, INC.
After we receive User's counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes User's personal information. By submitting a counter-notification, User consents to having User's information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on BD. If we receive such notification we will not display, distribute or otherwise exploit the material. If we do not receive such notification, we may elect to do so.