We offer a tracking and notification service for use with Operating Room procedures. In order to access and use our Website and the Services, a user must first become a registered Member of the website.
The terms "us" or "we" or "our" refers to Under the Mountain Software, the owner of this Website and provider of the Services. A "Visitor" is someone that merely browses our Website. A "Member" is someone who has registered through our Website to use our Services. The term "User" is a collective identifier that refers to either a Visitor or a Member.
All text, information, graphics, design, and data offered through our Website or Services, whether produced by our Members or by us, are collectively known as our "Content". We distinguish content posted by our Members as "Member Content".
This Agreement is between you and Under the Mountain Software
THIS AGREEMENT CONTAINS WARRANTY DISCLAIMERS AND OTHER PROVISIONS THAT LIMITS OUR LIABILITY TO YOU. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AND IN THEIR ENTIRETY, AS USING, ACCESSING AND/OR BROWSING OUR WEBSITE CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO BE BOUND TO EACH AND EVERY TERM AND CONDITION SET FORTH HEREIN, PLEASE EXIT OUR WEBSITE IMMEDIATELY AND DO NOT USE, ACCESS AND/OR BROWSE IT FURTHER.
Except as otherwise noted, this Agreement constitutes the entire and only Agreement between you and Under the Mountain Software, and supersedes all other Agreements, representations, warranties and understandings with respect to our Website, Services, and the subject matter contained herein. However, in order for you to use our Website and/or Services, you must first register as a member, and you may also be required to agree to additional terms and conditions and/or execute written contracts regarding the Services. Those additional terms and conditions will be incorporated into this Agreement, and in the event of conflict with this Agreement shall control, unless otherwise stated.
We may amend this Agreement at any time without specific notice to you. The latest Agreement will be posted on our Website, and you should review this Agreement prior to using our Website. After any revisions to this Agreement are posted, you agree to be bound to any changes to this Agreement. Therefore, it is important for you to visit this page periodically to review the Agreement. Please read this Agreement carefully and save it. If you do not accept this Agreement, do not access and use our Website. If you have already accessed our Website and do not accept this Agreement, you should immediately discontinue use of our Website and Services.
In exchange for your membership registration and payment of the associated membership fee, Under the Mountain Software grants you a non-exclusive, non-transferable, revocable license to access and use our Website and Services strictly in accordance with this Agreement for the term of your membership. Your use of our Website and Services are solely for internal business purposes, unless otherwise provided in this Agreement. Your access to specific areas of the Website may depend upon your membership level, and increased access may be available for increased cost. You understand that expiration or termination of this agreement or your membership will immediately terminate your license, and we may then terminate your access to use the Website and the Services. We may also terminate your access to the Website and the Services in the event of your breach of this Agreement, and in such event we shall further be entitled to commence any action in law or equity to enforce the provisions of this Agreement and seek all other available remedies, including but not limited to money damages. You shall not rent, lease, loan, sell, sublicense, assign, disseminate, or otherwise transfer access to the website to any third party. No print out or electronic version of any part of our Website or Services may be used by you in any litigation or arbitration matter whatsoever under any circumstances.
You agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our Website, Content, Services, and any software provided therein, including but not limited to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended, including without limitation, amendments by the Health Information Technology for Economic and Clinical Health Act (HITECH).
This Agreement in no way creates any agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between you and Under the Mountain Software No party to this Agreement shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
Our Website may contain our service marks or trademarks as well as those of our affiliates or other companies, in the form of words, graphics, and logos. Your use of our Website or Services does not constitute any right or license for you to use our service marks or trademarks, without the prior written permission of Under the Mountain Software
We own all copyrights, patents, trade secrets, trademarks and other intellectual property rights in and to the Website, the Services, and Our Content, as found within our Website and Services, and such intellectual property is protected under United States and foreign law. The copying, redistribution, use or publication by you of any such Content is strictly prohibited. The license granted to you, and your use of our Website and Services, does not grant you any ownership rights to our Content, our Website or the Services.
We will respond quickly to claims of copyright infringement as found on the Website, according to the terms of the Digital Millennium Copyright Act of 1998 (DMCA) as found under United States law (17 USC. § 512). If you believe any of your copyrights are infringed by the Website, please provide us with a written notice via mail, or email that contains the following information:
When you complete the registration process, you will receive a password that will allow you to access our Services. You agree to maintain the confidentiality of your password and are fully responsible for all liability and damages resulting from your failure to maintain that confidentiality and all activities that occur through the use of your password. Without limiting the foregoing, you will be responsible for all uses of your password, whether such use is authorized or unauthorized.
You agree to immediately notify us of any unauthorized use of your password or any other breach of security. You agree that neither we nor our website can or will be liable for any loss or damage arising from your failure to comply with password security as discussed herein.
Any opinions expressed on our Website are not necessarily the opinions of Under the Mountain Software
The Content may be changed without notice and is not guaranteed to be complete, correct, timely, current or up-to-date. Similar to any printed materials, the Content may become out-of-date.
We undertake no obligation to update any Content on our Website. Members are responsible for their own Content, where applicable, and may update their Content at any time without notice and at their sole discretion.
We do not represent or otherwise warrant that our Website will be error-free, free from viruses or other harmful components, or that we will correct any errors. We do not represent or otherwise warrant that the information available on or through our Website will be correct, accurate, timely or otherwise reliable.
We may make changes to the features, functionality or content of our Website or Services at any time. We reserve the right in our sole discretion to edit or remove any documents, information or other content appearing on our Website or Services.
You hereby acknowledge that nothing contained in our Website shall constitute financial, investment, legal and/or other professional advice and that no professional relationship of any kind is created between you and Under the Mountain Software or our Members. You hereby agree that you shall not make any financial, investment, legal and/or other decision based in whole or in part on anything contained in our Website or Services, even if it is Member content.
Under the Mountain Software is not responsible or liable in any manner for any Content posted on our Website or in connection with our Services, whether posted or caused by Members of our Website, or by Under the Mountain Software Although we provide rules for Member conduct and postings, we do not control and are not responsible for what Members post, transmit or share on our Website or Services, and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on our Website or Services. Under the Mountain Software is not responsible for the conduct, whether online or offline, of any user of our Website or Services.
We do not warrant that the Website will be available at any particular time or location. Our Website or Services may be temporarily unavailable from time to time for maintenance or other reasons. Under the Mountain Software assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, Member communications.
We do not warrant that the errors or defects in the Website will be corrected. Under the Mountain Software is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or any combination thereof, including injury or damage to Member's or to any other person's computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the our Website or Services, including without limitation any software provide through our Website or Services.
Under no circumstances will Under the Mountain Software be responsible for any loss or damage, including any loss or damage or personal injury or death, resulting from anyone's use of our Website or Services, or any interactions between Users of our Website or Services, whether online or offline.
We do not warrant that using the Website will meet your requirements. Under the Mountain Software reserves the right to change any and all Content, software and other items used or contained in our Website or Services, at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by our Website, by third parties or by any of the equipment or programming associated with or utilized by our Services.
THE SERVICES, INFORMATION, CONTENT AND DOCUMENTS FROM OR THROUGH OUR WEBSITE ARE PROVIDED "AS-IS," "AS AVAILABLE," WITH "ALL FAULTS", AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). OUR WEBSITE AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. Under the Mountain Software, INCLUDING ALL OUR AFFILIATES, HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF OUR WEBSITE OR SERVICES. Under the Mountain Software CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF OUR WEBSITE OR SERVICES, INCLUDING, BUT NOT LIMITED TO, RELATED SOFTWARE. UNDER THE MOUNTAIN SOFTWARE DOES NOT REPRESENT OR WARRANT THAT OUR CONTENT, OUR SERVICES, OR ANY SOFTWARE FOUND WITHIN ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT ANY SUCH ITEMS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH CONTENT OR SOFTWARE AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND REMOVE VIRUSES. ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES SOMEHOW ATTRIBUTED TO OUR CONTENT, SERVICES, AND RELATED SOFTWARE IS DISCLAIMED. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT AND RELATED SOFTWARE FROM OR THROUGH OUR WEBSITE OR SERVICES AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT. WE, AS WELL AS ALL OF OUR AFFILIATES, ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION AND LIMITATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND UNDER THE MOUNTAIN SOFTWARE OUR WEBSITE AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH OUR WEBSITE OR SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
Under the Mountain Software, as well as all our Affiliates, shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions from our Website or Services, (b) any product liability issues to the extent that we are not involved with the manufacturer of the product(s) giving rise to liability, (c) the unavailability or interruption of our Website or Services, (d) your use of our Website our Content, (e) the content contained on our Website or Services, or (f) any delay or failure in performance of our Website and Services beyond our control.
IN NO EVENT WILL UNDER THE MOUNTAIN SOFTWARE OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF OUR WEBSITE, CONTENT, SERVICES, OR ANY RELATED SOFTWARE, ACCESSED THROUGH OR DOWNLOADED FROM OUR WEBSITE OR SERVICES, EVEN IF Under the Mountain Software IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, UNDER THE MOUNTAIN SOFTWARE'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR WEBSITE AND/OR SERVICES ACCESS DURING THE PREVIOUS MONTH OF YOUR MEMBERSHIP PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
Members may post their own content to our Website through our Services (Member Content). Members and Visitors understand that by using our Website or Service, they may be exposed to content that is offensive, indecent, or objectionable. We have no control over Member Content and do not in any way guarantee the quality, accuracy or integrity of such content. Under the Mountain Software is not responsible for the monitoring or filtering of any Member content. Should any Member Content be found illegal, Under the Mountain Software will submit all necessary information to the proper authorities.
If any Member Content is reported to Under the Mountain Software as being offensive or inappropriate, we may ask the Member to retract or otherwise modify the questionable content within 24 hours of being notified by Under the Mountain Software Should the Member fail to meet such a request, Under the Mountain Software has full authority to either restrict the Member's ability to post Member Content OR to immediately terminate the membership of the Member, without further notification to the Member.
Without limiting the foregoing, we have sole discretion to remove any Member Content that violates this Agreement or is otherwise objectionable in our sole discretion.
Members are responsible for complying with all applicable federal and state laws for their content, including copyright and trademark laws and HIPAA.
You warrant that you will not use our Services to infringe the intellectual property rights of others in any way. In accordance with the DMCA and other applicable law, we have adopted a policy of terminating Members who we deem, in our sole discretion, to be infringers of other's intellectual property rights.
As a Member, you agree not to use our Services to do any of the following:
All remarks, suggestions, ideas, graphics, or other information communicated by you to us (collectively, "Submission") is considered assigned to us and is as such considered our property. We will not be required to treat any Submission as confidential, and will not be liable for any ideas (including without limitation, product, service or advertising ideas) and will not incur any liability as a result of any similarities that may appear in our future products, services or operations.
Without limitation, we will have exclusive ownership of all present and future existing rights to the Submission of every kind and nature everywhere. We will be entitled to use the Submission for any commercial or other purpose whatsoever, without compensation to you or any other person sending the Submission. You acknowledge that you are responsible for whatever material you submit, and you, not us, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.
We reserve the right to investigate complaints or reported violations of this Agreement and to take any action we deem appropriate, including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to your profile, email addresses, usage history, posted materials, IP addresses and traffic information.
You may not provide links to Our Website to any user that is not an individually registered Member of Our Website or is an employee of your company and your company is a member of Our Website.
Our Website may, from time to time, contain links to third party websites. These links are provided solely as a convenience to you. By linking to these websites, we do not create or have an affiliation with, or sponsor such third party websites. Inclusion of links for any website on our Website does not mean that we endorse, guarantee, warrant, or recommend the services, information, content and/or data of such third party websites. Under the Mountain Software has no control over the legal documents and privacy practices of third party websites; as such, you access any such third party websites at your own risk.
You represent and warrant that if you are purchasing something from us that (i) any credit information you supply is true and complete, (ii) charges incurred by you will be honored by your bank or credit card company, (iii) you will pay the charges incurred by you at the posted prices, including any applicable taxes, and (iv) if your initial payment method is dishonored, you will still pay the charges incurred, including any surcharge we may incur due to such dishonored payment.
Any fees paid for a Membership to Our Website must be paid in advance according to the terms on our website or in a separate sales agreement with you. Membership Fees are non-refundable, even if we terminate your membership before expiration of the term as described in this Agreement.
You agree to indemnify, defend and hold us and our partners, agents, officers, directors, employees, subcontractors, successors, assigns, third party suppliers of information and documents, attorneys, advertisers, product and service providers, and affiliates harmless from any liability, loss, claim and expense, including reasonable attorney's fees, related to your violation of this Agreement, your use of our Website or Services, or use of our Website or Services by a third party using your password.
Any legal controversy or legal claim arising out of or relating to this Agreement and/or our Service, excluding legal action taken by us to collect or recover damages for, or obtain any injunction relating to, website operations, intellectual property, and our Service, shall be settled solely by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party.
The arbitration shall be conducted in Kent County, Michigan and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or us may seek any interim or preliminary relief from a court of competent jurisdiction in Kent County, Michigan necessary to protect the rights or property of you and us pending the completion of arbitration. Each party shall bear one-half of the arbitrator's fees and related costs, but each party shall be responsible for payment of its own attorney's fees, unless attorney's fees are otherwise recoverable under this Agreement or applicable law.
This Agreement shall be treated as though it were executed and performed in Kent Count, Michigan, and shall be governed by and construed in accordance with the laws of the State of Michigan without regard to conflict of law principles. In addition, you agree to submit to the personal jurisdiction and venue of such courts. Any cause of action by you with respect to our Website or Service must be instituted within one (1) year after the cause of action arose or be forever waived and barred. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that any Content is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Our rights under this Agreement shall survive any termination of this Agreement.
Any communications, notices or inquiries to Under the Mountain Software should be made to the following: