Terms of use

1. DESCRIPTION OF SERVICES.
In consideration of your (the "Customer") payment of the annual license fees set forth above, Image Owl Inc. ("Image Owl") grants Customer a non-exclusive, nontransferable, nonassignable license (the "License") to use the online Image Owl software application known as Catphan® QA (CTS100, CTS110, CTS120, CTS130) (the "Service"). The Service will provide the Customer the following information: test reports with numerical and graphical information, longitudinal trend data, and data storage for the length described for the service level. Image Owl does not warrant that the data produced by the Service will meet Customer's requirements, or that the operation of the Service will be uninterrupted or error-free.

2. SERVICE USE BY CUSTOMER.
Upon payment of all the License Fees, the Customer shall have non-exclusive, use of the Service for the specified site(s) during the period starting on the Contract Start Date and ending on the Contract End Date (the "Term"). Use of the Service by Customer shall be limited to the number of sites covered by the License Fee. The Service is a quality assurance tool and the Customer acknowledges that the Service has not been approved by the Federal Drug Administration, or other regulating bodies, for use in connection with patient treatment. The Service is considered by the FDA to be an accessory to a radiologic quality assurance instrument, and classified as a Class 1 medical device. Customer represents and warrants to Image Owl that the Service will not be used in connection with patient treatment. The sole purpose of the Service is to provide data regarding testing and/or scanner performance over time, measured from Customer's images of the Catphan® phantom (the "Data"). Customer is solely responsible for how the Data should, or will, be used. Image Owl does not make specific recommendations on the content of the Customer’s quality assurance program or scanner limits, as each facility has its own unique set of requirements. We suggest a review of local governing regulations, manufacturer specifications, and the needs of the radiologists and/or physicists before developing your quality assurance program.

3. TERMINATION BY IMAGE OWL.
Image Owl may terminate this License, without notice to the customer, in the event the Customer fails to make complete payment of all License Fees due under this Agreement by their respective due dates.

4. OWNERSHIP RIGHTS IN SERVICE.
Customer acknowledges and agrees that the Service and its associated software is the property of Image Owl and the non-exclusive license granted to the Customer under this Agreement does not convey any ownership rights to the Customer in the Service.

5. USE OF DATA BY IMAGE OWL.
Customer hereby authorizes Image Owl to use the Data compiled from Customer's use of the Service, for its own use and/or for promotion of scientific knowledge. Image Owl agrees that it will not identify the name of the Customer or the location of the imaging equipment that generated the Data to the general public. Image Owl may provide the Data compiled to the Customer, other users of the Service and the manufacturer of the medical imaging equipment for quality assurance purposes, including monitoring the performance of the medical imaging equipment using the Service. The Data compiled by Image Owl may also be used in the advancement of science, which information may be published or circulated to other parties in the scientific field by Image Owl, without charge.

6. ARBITRATION.
Any issue, claim, dispute or controversy that may arise out of, in connection with or relating to this License Agreement shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration proceeding shall take place in Albany County, New York. The award of the arbitrator shall be final as long as the award is rendered in conformity with statutory and decisional law, and may be entered in any court having jurisdiction. The parties authorize the arbitrator to order discovery proceedings, in the arbitrator’s discretion, and on terms and conditions the arbitrator may consider appropriate, including depositions, interrogatories, requests for admission, and orders for the examination of documents, person and things. Such orders shall be binding on the parties. If any party fails to comply with a discovery order authorized by this clause, the arbitrator may assume that the evidence that would have been produced by complying with the order would have been unfavorable to the party that failed to comply with the order.

7. NON-WAIVER.
No amendment of any provision of this Agreement shall be binding on Image Owl unless the same shall be in writing and signed by Image Owl.

8. GOVERNING LAW. This Agreement shall be construed in accordance with, and be governed by, the laws of the State of New York.

IMAGE OWL DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED CONCERNING THE SERVICE AND THE SERVICES, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. CUSTOMER AGREES THAT IMAGE OWL SHALL NOT BE LIABLE FOR ANY INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR INFORMATION OF ANY KIND OR LOST PROFITS, HOWEVER CAUSED, WHETHER CLAIMED UNDER CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT IMAGE OWL IS MADE AWARE OF THE POSSIBILITY THEREOF. CUSTOMER HEREBY WAIVES, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, ANY AND ALL CLAIMS FOR INCIDENTAL, EXEMPLARY AND CONSEQUENTIAL DAMAGES.