1. Introduction. Welcome to vCases®, a Michigan corporation with registered offices at 330 East Liberty, Ann Arbor, MI 48104 (“vCases” or the “Company”). Company provides online access to vCases, an innovative and realistic computer program designed to improve medical clinical skills and competency (the “Software”). The Software allows the user to “work up” virtual patients, engage in critical thinking, obtain help when needed, and then compare the path taken by that user with that of an expert. A description of the software, including its features and operation is posted to https://vcases.com (the “Site”). The Software is not an expert system, does not generate medical opinions, does not provide medical advice, does not diagnose or treat disease, is not used to prevent disease, and is not used in connection with the request for or delivery of health care.
2. Entire Agreement. The legal contract between Company and the subscriber that sets up an account with the Company (“User”) is comprised of these Terms of Service (“TOS”), and amendments to the TOS, and the URLS and policies referenced in these TOS (collectively, the “Agreement”). User accepts the Agreement by using the vCases software. The Agreement may be updated and modified by Company from time to time. Those modifications are incorporated as part of the Agreement. Users will be notified of significant modifications when they log on or access their account. If User does not wish to accept the modifications to the Agreement, its sole remedy is to conclude its subscription at the end of the then-current term, or thirty (30) days, whichever is less.
3. User Account: Representations and Warranties; Indemnification.
A. Account. To access the Software User must create an account. User represents and warrants that (i) User will be the only persons using the Software and engaging in transactions through the account; User will keep passwords secure; User will notify Company of any suspected breach of security or unauthorized use of its account; (ii) all information provided in connection with User‘s account is accurate; (iii) User has the right to transact business in the US, and to enter into this Agreement for the use of the Site and the Software; (iv) User will not upload to the Site any personally identifiable information or protected health information, or any third party content; and (v) User shall not assign or transfer the account to a third party, and shall not enable access to the account or the Site by persons who are not authorized account holders.
C. Indemnification. User acknowledges that its account with Company and its access to the Software and Site is based upon the truth of the promises, statements, and representations made in this Agreement, including the terms of this Section 3. User hereby indemnifies, holds harmless, and agrees to defend Company against all damages, losses, judgments, penalties, expenses, costs, and fees (including reasonable attorneys’ fees) incurred by, or awarded or assessed against Company in connection with any third party (including domestic or foreign governments or agencies) assertion inconsistent with the promises, statements, representations, and warranties. “Company” includes Company officers, directors, employees, contractors, agents, affiliates, related business entities, successors, and assigns. This obligation survives termination of this Agreement. User agrees to use its best efforts to assist Company in the investigation and resolution of any third party claim or assertion inconsistent with User’s representations and warranties. User agrees to provide such assistance at no charge and promptly upon receipt of notice from Company of such claim or assertion.
D. Access; Uptime, Security. Although Company has designed the Site to enable uptime of over 98%, Company relies upon third parties for power, data storage, server access, software maintenance, system troubleshooting, system security, and other technology services. The Site/Software will occasionally be unavailable for testing, upgrading, and maintenance.
4. AS IS Warranty; Exclusive Remedy.
A. AS-IS Warranty. USER AGREES THAT THE TRIAL PERIOD IS ADEQUATE TO TEST THE SOFTWARE. ACCORDINGLY, COMPANY PROVIDES THE SOFTWARE “AS IS,” WITH NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Company does not warrant that the functions contained in the Software will meet User’s specific requirements, the requirements of User’s particular profession, will be error-free, or operate without interruption. Company will use commercially reasonable efforts to correct bugs and maintain the Software.
B. Sole and Exclusive Remedies. The remedies provided in this Section are the sole and exclusive remedies provided to User under this Agreement and are in lieu of all other remedies by contract, by law, and at equity.
5. Intellectual Property Rights.
A. Company Intellectual Property. Company retains all intellectual property rights in the Software, including copyrights, trade secrets, trademarks, patents, and “know-how.” User is granted a limited license to access the Software through the Site and is not granted any right to download the Software, create derivative works, or otherwise exploit Company’s rights in the Software.
B. Third Parties. The Site and the Software may refer to third parties (by name, trademark, links, and the like). Company makes no representation or warranty regarding such third party products or services and makes no assertion of a business relationship, affiliation, endorsement, or sponsorship by such third parties unless expressly stated on the Site.
6. Term; Fees and Payments.
A. Subscription Basis. Software access is provided on a subscription basis. User shall pay the applicable Software subscription fees as agreed in separate subscription contract. Company may adjust fees from time to time, with advance notice to User.
B. Renewal. The term of Software use selected by User shall automatically renew unless either party gives written notice to the other at least ten (10) days prior to end of the then-current term of an intent not to renew, or unless terminated as set forth below. If User uses a credit card for payment of its Software subscription fee, it hereby authorizes Company to charge such card for each term of use.
C. Limitation of Liability for Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO USER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, BUSINESS INTERRUPTION LOSSES, OR LOSS OF DATA, RESULTING FROM THIS AGREEMENT, ACTIVITY AT THE SITE, OR THE OPERATION OF THE SOFTWARE, REGARDLESS OF THE THEORY OF LIABILITY, INCLUDING EXPRESS CONTRACT, IMPLIED CONTRACT, NEGLIGENCE, WARRANTY, OR MISREPRESENTATION, AND WHETHER OR NOT COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DIRECT DAMAGES ARE LIMITED TO THE AMOUNT OF THE SOFTWARE SUBSRIPTION FEES PAID IN THE PREVIOUS SIX (6) MONTHS. “Company” includes Company officers, directors, employees, contractors, agents, affiliates, related business entities, successors, and assigns.
7. Integrity of the Site. User shall not take any action to interfere with the operation of the Software or the Site, to attempt to copy its underlying technology, to upload other computer programs. User agrees not to use any automated software (crawlers, robots, bots, spiders, extractors, etc.) at the Site; circumvent, disable or otherwise interfere with security-related features or digital rights management functions at the Site; or hack, reverse engineer, or disable any technology at the Site.
8. Termination of Services; Termination of Agreement.
A. Suspension of Access to Site. In the event of a material breach that is uncured, response to legal process, concern for the integrity of the Site, reasonable suspicion of improper conduct at the Site, or other good faith belief, Company may suspend or terminate an account, or limit services to which an account holder has access, and shall use reasonable efforts to provide prior notice to an account holder.
B. Material Breach. Either party may terminate this Agreement if there is a material breach by the other that is not cured within thirty (30) days after receipt of written notice of such breach. Without limitation, failure to pay fees when due, and/or use of the Software inconsistent with this Agreement, are material breaches. Termination shall not affect the obligation of User to pay any fees owing as of the date of termination.
C. User Termination Without Breach. At any time, User may terminate its account and cease using the Software, with or without prior notice to Company.
D. Survival. The following Sections survive termination: 3, 5, 6, 8, 11 and 12.
9. The Site and Software are Located in and Delivered from Ann Arbor, Michigan, USA. This Agreement is entered into, performed in, and based in Ann Arbor (Washtenaw County), Michigan, USA. The Site does not give rise to personal jurisdiction over Company, either specific or general, in jurisdictions other than Michigan. This Agreement shall be governed by the internal substantive laws of the State of Michigan, without respect to its conflict of laws principles.
10. Dispute Resolution. The parties shall attempt to resolve any disputes through good faith business negotiations. All disputes or claims arising out of or relating to this Agreement (including the breach thereof) shall be settled by arbitration, to be conducted by a single arbitrator in Ann Arbor, Michigan, by and in accordance with the then effective commercial rules of the American Arbitration Association. The costs of the arbitration and the reasonable attorneys’ fees of the prevailing party shall be included in any award rendered by the arbitrator. Judgment upon the award may be entered in any court having jurisdiction thereof. Neither party shall disclose the existence, Data or result of any arbitration proceeding without the prior written consent of the other party. Any other action brought by either party related to this Agreement shall be initiated and maintained solely in Washtenaw County, Michigan, or in the U.S. District Court for the Eastern District of Michigan. The parties expressly submit to the exclusive personal jurisdiction and venue of these courts and waive any objection on grounds of forum non conveniens.
11. No Implied Waiver. No waiver by Company shall be implied. Any waiver of any term of this Agreement must be in writing and signed by an officer of Company.
12. Severability. If any portion of this Agreement is found to be unenforceable, such portion will be modified to reflect the parties’ intent set forth in such portion and only to the extent necessary to make it enforceable. The remaining provisions of this Agreement will remain in full force and effect.
13. International Considerations. Company makes no representations that the Site or Software is appropriate or available for use in locations other than the United States. Those who access or use the Site or use the Software from outside the U.S. do so at their own volition and are responsible for compliance with applicable laws.
14. Assignment. Company may assign, subcontract, delegate, and transfer its rights and obligations under this Agreement to a third party. User may not assign or transfer its account.
15. Notices. Company may provide User with notices by email, first class mail, text, postings to the Site, or other forms of electronic notice. Notice is deemed given upon the earlier of (a) actual receipt, (b) twenty-four (24) hours after an email is sent, (c) three (3) days after first class mail is deposited with the U.S. Postal Service, or (d) ten (10) days after a notice is posted to the Site. Such communications may include amendments to the then-current Agreement, updated policies (such as privacy policies), new product offerings, and other business correspondence and notifications.
16. Force Majeure. It shall not be a material breach of this Agreement, and neither party shall be liable to the other, if prevented from performing its duties or responsibilities under this Agreement by reason of any fire or other casualty, acts of God, earthquake, floods, explosions, interrupted power supply, sabotage, war, riots, acts of terrorism; inability to procure or a general shortage of labor, equipment, facilities, materials or supplies in the open market; strikes, court orders, laws, regulations, or orders of government or military authorities; or any other cause not within the control of such party whose performance is delayed.
17. Authority. If a User signs on behalf of a legal entity, he/she represents that they possess actual authority to bind the legal entity.