TERMS OF USE
Last Modified: June 2019
Welcome to Varian Marketplace (“Site”), an online marketplace where you can purchase: 1. Applications (as defined below) that interoperate with applicable Varian Products (as defined below) and 2. Brachytherapy Applicators (as defined below) and accessories, as part of the brachytherapy treatment planning and delivery process. Applications and Applicators shall jointly be understood to be Marketplace products (“Marketplace Products”). By visiting the Site, you agree that your access and use of the Site is governed by the legally binding terms and conditions described in these Varian Marketplace Terms of Use (“Terms”), which you acknowledge represents an agreement between you and Varian Medical Systems, Inc. (“Varian”). If you are agreeing to these Terms on behalf of a corporation, governmental organization, non-profit or other legal entity (“Entity”), you represent that you have the authority to bind that Entity to these Terms, and the terms “you” and “your” will refer to that Entity. If you do not have that authority, or if you do not agree with these Terms, you may not use and you must leave the Site.
IF YOU USE THE SITE OR ANY Marketplace Products MADE AVAILABLE THROUGH THE SITE, YOU WILL BE BOUND BY THESE TERMS.
On the Site, you can access, browse, purchase and/or download Marketplace Products. An “Application” is a product or service purchased and/or downloaded through the Site, together with any provided documentation. Applications include, but are not limited to, software, content, documentation, technology, data and other digital material included or made available through the Applications. Applications also include any updates, upgrades and other changes thereto, and versions thereof that you later use or download from the Site. Each Application is designed to interoperate and work with one or more of hardware, software and/or services of Varian (“Varian Products”). Applications made available through the Site may be available at no cost, for a set price or on a subscription basis.
On the Site, you can purchase and have shipped Brachytherapy Applicators, which are listed in Varian’s Brachytherapy Applicator Catalogue located at varian.com…
In the event a Marketplace Product is provided and licensed by Varian, then your usage of such Marketplace Product will be governed by the agreements you have with Varian for the Varian Products with which such Marketplace Product is designed to interoperate and work (“Varian Product Agreements”). Any support, maintenance, updates or upgrades to a Marketplace Product provided and licensed by Varian shall be provided by Varian only to the extent described in the applicable Varian Product Agreement. Varian’s obligations, if any, with regard to Varian Products are governed solely by the Varian Product Agreements under which they are provided, and nothing on the Site should be construed to alter the Varian Product Agreements.
In order to access the Site or certain password-restricted areas of the Site, such as forums and reviews, and to use certain services and materials offered on and through the Site, you must register with Varian for an account. You are solely responsible for maintaining the confidentiality and security of your account, and for all activities that occur on or through your account. You agree to immediately notify Varian of any security breach of your account. Varian shall not be responsible for any losses arising out of the unauthorized use of your account.
You agree to provide accurate and complete information when you register with, and as you use, the Site (“Registration Data”), and you agree to update your Registration Data to keep it accurate and complete. You agree that Varian may store and use the Registration Data you provide for use in maintaining and billing fees to your account.
Orders for Marketplace Products may be accepted and/or processed by Varian or any of its subsidiaries or affiliates outside of the United States. Your Registration Data and any information you provide when placing an order will be transferred to and maintained in Varian’s records in the United States. If you do not consent to this transfer, do not access or use the Site.
All Applications made available through the Site are licensed, not sold, to you. Most of the Applications are provided and licensed to you by third-party developers (“Developers”), not Varian. These Applications will be referred to as “Developer Application(s)” or “Developer’s Application(s).” All Developer Applications are still Applications for purposes of these Terms.
Notwithstanding anything to the contrary in these Terms, you acknowledge and agree that (a) you will use your own discretion when you obtain a Developer Application through the Site and (b) your use of the Developer Application is governed by terms of use and privacy policy set forth by the Developer for that Application (“Developer Terms”). You must comply with the Developer Terms and you are solely liable for all claims related thereto. The Developer Terms are solely between you and Developer, and Varian is not a party to the Developer Terms. Accordingly, Developer, not Varian, is responsible for the Developer Application, the content therein, and any warranties or claims relating to the Developer Application. You acknowledge and agree that Varian is a third‑party beneficiary of the Developer Terms and Varian has the right to enforce the Developer Terms against you.
Varian does not in any way warrant the accuracy, reliability, security, completeness, usefulness, non-infringement or quality of any Developer Application, including without limitation any content therein, whether or not Varian reviewed such Developer Application, and even if the Developer Application complies with requirements and/or guidelines set forth on the Site. You will not hold Varian responsible or liable for Developer Applications under any circumstances.
Any support, maintenance, updates or upgrades to a Developer’s Application shall be provided by the Developer only to the extent described in the applicable Developer Terms. You agree and acknowledge that Varian has no responsibility to provide support, maintenance, updates or upgrades to Developer Applications. Failure of a Developer to provide support, maintenance, updates or upgrades to the Developer’s Application will not entitle you to any refund of fees from Varian in connection with your purchase of the Developer’s Application through the Site.
In the event an Application is provided and licensed by Varian, then your usage of such Application will be governed by the agreements you have with Varian for the Varian Products with which such Application is designed to interoperate and work (“Varian Product Agreements”). Any support, maintenance, updates or upgrades to an Application provided and licensed by Varian shall be provided by Varian only to the extent described in the applicable Varian Product Agreement. Varian’s obligations, if any, with regard to Varian Products are governed solely by the Varian Product Agreements under which they are provided, and nothing on the Site should be construed to alter the Varian Product Agreements.
No refund or credit will be given once you download an Application you purchased through the Site. If an Application becomes unavailable following a transaction but prior to download, then your sole remedy is a refund. If technical problems prevent or unreasonably delay delivery of an Application you purchased through the Site, your exclusive and sole remedy is either replacement or refund of the price paid, as determined by Varian.
Varian may make changes to any Application offered on the Site, or to the price for any such Application, at any time, without notice. The content and materials on the Site with respect to Applications may be out of date, and Varian makes no commitment to update such content or materials. Varian and Developers reserve all rights in and to the Applications not expressly granted to you.
For Brachytherapy Applicators only, Varian warrants that Brachytherapy Applicators will be free from defects in material and workmanship and in substantial compliance with operational features of Varian’s published specifications for the applicable Brachytherapy Applicator at the time of sale (“Specifications”). This warranty shall begin upon date of shipment from Varian to You and shall expire one (1) year later. Clerical and typographical errors in Specifications are subject to correction. Your sole and exclusive remedy, and Varian’s sole obligation, for any defect in or failure of a Brachytherapy Applicator to perform properly shall be for Varian to replace the defective Brachytherapy Applicator. If, in Varian’s sole opinion, replacement is not commercially reasonable or feasible, Varian shall refund the purchase price paid by You for the defective Brachytherapy Applicator. No returns will be made without your complying with Varian’s return procedures, including any pre-authorization required by Varian for any returns.
ALL OTHER WARRANTY DISCLAIMERS IN THESE TERMS APPLY TO BRACHYTHERAPY APPLICATORS.
Complaints relating to Brachytherapy Applicators may be addressed to the following: https://www.myvarian.com/s/contactus.
You agree that you will pay for all Marketplace Products you purchase through the Site, and that Varian may charge your payment method for any Marketplace Products purchased and for any additional amounts (including any taxes and late fees, as applicable) that may be accrued by or in connection with your account. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING VARIAN WITH A VALID PAYMENT METHOD FOR PAYMENT OF ALL FEES.
You hereby explicitly acknowledge and authorize Varian to, in connection with your purchase of one or more Marketplace Products, provide your Registration Data to Developers of such Marketplace Products, including without limitation, your name, company name (if any), address (including email address) and phone number.
Your total price will include the price of the Marketplace Products plus any applicable tax, such as tax based on the bill-to address and the tax rate in effect at the time you purchase the Application. Prices for Marketplace Products offered through the Site may change at any time. Varian does not provide price protection or refunds in the event of a price reduction or promotional offering.
The Site and Marketplace Products are protected by patent, copyright, trademark and other intellectual property laws and treaties. Additionally, the Site and Marketplace Products contain proprietary and confidential information protected by applicable laws. Except for the rights explicitly granted to you in these Terms, the Developer Terms and the Varian Product Agreements, all right, title and interest in the Site and Marketplace Products, including all patent, copyright, trademark, trade secret and other intellectual property rights therein, are reserved and retained by their respective providers, publishers, licensors and rights holders. You do not acquire any ownership rights in the Site or any Marketplace Products as a result of accessing, downloading, installing or using the Site or Marketplace Products.
Varian, the Varian logo, and other Varian trademarks, service marks, graphics and logos used in connection with the Site are trademarks or registered trademarks of Varian in the United States and other countries. Other trademarks, services marks, graphics and logos used in connection with the Site or any Application are the trademarks of their respective owners. You are granted no right or license in any of the aforesaid trademarks. You agree that you shall not remove, obscure or alter any proprietary notices (including trademarks and copyright notices) that may be affixed to or contained within the Site or any Marketplace Products.
Unless expressly authorized in the Developer Terms or Varian Product Agreements, you may not: (a) create derivative works from or make copies, translations or modifications of the Marketplace Products; (b) alter, obscure or remove any copyright notice on any copy of the Marketplace Products; (c) assign, sell, distribute, lease, rent, sublicense or transfer any rights in the Applications; (d) use the Applications in a manner that disrupts the operation of any associated products or services or otherwise in an unintended manner (for example, by engaging in unlawful activity through the Applications); or (e) reverse engineer, decompile or disassemble any Application in whole or in part.
You may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or Site Content (defined below), or in any way reproduce or circumvent the navigational structure or presentation of the Site or Site Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. Varian reserves the right to bar any such activity. “Site Content” means any information and material that may be generated or encountered through use of the Site, such as user interfaces, visual interfaces, trademarks, logos, data files, device characteristics, written text, software, graphics, photographs, images, sounds, artwork, messages and computer code, including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of content contained on the Site.
Except as expressly provided in these Terms, no part of the Site or Site Content may be copied, reproduced, duplicated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, sold, rented, traded or distributed in any way (including without limitation “mirroring”) for any purpose without Varian’s express prior written consent. You may not use the Site or any Site Content for any purpose that is unlawful or prohibited by these Terms, or to solicit the performance of any illegal activity or other activity, which infringes the rights of Varian or others.
You may not attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Site or to any Varian server, or to any of the Applications offered on or through the Site, by hacking, password “mining” or any other illegitimate means. You may not probe, scan or test the vulnerability of the Site or any network connected to the Site, nor breach the security or authentication measures on the Site or any network connected to the Site. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person’s access or use of the Site.
You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Site, or any other customer of Varian, including any Site account not owned by you. You may not exploit the Site or any product, service or information made available or offered by or through the Site, in any way where the purpose is to reveal any information, including, but not limited to, personal identification or information, other than your own information, as provided for by the Site.
You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or Varian’s systems or networks, or any systems or networks connected to the Site or to Varian. You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to Varian on or through either the Site or any product or service offered through the Site. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.
Varian may, in Varian’s sole discretion, offer a system for you to submit a comment, suggestion, rating, review, recommendation and/or other feedback (“Review”) regarding Applications, the Site or Varian Products. In the event that Varian does offer such a system, you may not take any actions that undermine the integrity of the system. Your Reviews shall be deemed to be non-confidential and Varian shall be free to use such Reviews (including any ideas, concepts, methods, know-how or techniques embodied in the Reviews) on an unrestricted basis and without any obligations to you.
In making a Review, you represent and warrant that (a) you are the sole author of the Review and owner of intellectual property rights thereto; (b) your Review is accurate to the best of your knowledge; (c) your Review does not violate any applicable laws or rights of third-parties, including without limitation, confidentiality, privacy and intellectual property; (d) your Review does not breach any contractual obligations you might have towards a third-party; (e) your Review does not suggest or encourage unlawful activity; (f) your Review does not constitute advertising or any other form of commercial solicitation; (g) you are not impersonating any other person or entity; and (h) your Review is not false, misleading, fraudulent, defamatory, harmful, abusive, insulting, profane, sexually explicit, obscene, trade libelous, unlawfully threatening or harassing, offensive or objectionable.
When your Review consists of a review or evaluation of an Application, you further represent and warrant that (a) you are a user of the Application being reviewed; (b) unless you prominently disclose your affiliation and interest in such Review, (i) you are not (1) the Developer of the Application for which you are submitting the Review, such Developer’s channel partner, or an employee, contractor, agent, officer or director of either the Developer or Developer’s channel partner (collectively, “Developer”) or (2) a competitor of such Developer that offers a competitive product or service, such competitor’s channel partner, or an employee, contractor, agent, officer or director of either the competitor or competitor’s channel partner (collectively, “Competitor”) and (ii) you have no pecuniary interest in such Developer, Competitor or the Application; and (c) the opinions expressed in your Review are your honest opinions, findings, beliefs and experiences with respect to the Application.
Varian reserves the right, in its sole discretion and for any reason at any time, to remove or alter any Review on the Site. Content unrelated to a comment, suggestion, rating, review, recommendation and/or other feedback of an Application, the Site or a Varian Product—for example, discussing Varian’s business or employees, or those of other companies, or unrelated products or services—is prohibited. You hereby grant Varian a non-exclusive, worldwide, perpetual, irrevocable, fully paid-up, royalty-free license, with the right to sublicense through multiple levels of sublicenses, under your intellectual property rights, to make, use, have made, sell, offer to sell, copy, reproduce, distribute, publicly perform, publicly display, digitally transmit, modify, create derivative works of, import, export, and otherwise exploit your Reviews, including without limitation, enhancing, modifying, incorporating and otherwise improving the Site, Applications and Varian Products.
You are responsible for properly configuring and using the Applications, and taking your own steps to maintain appropriate security, protection and backup of your content and information, including data that is inputted into and/or generated from the Applications (collectively, “Your Content”). You will use the Site and the Applications in compliance with all applicable laws.
If you purchase and/or download any Developer Application, such Developer Application may transmit Your Content outside of Varian’s systems during normal use, and the Developer of such Application may be able to obtain access to Your Content in Varian Products through the applicable Varian Product’s application programming interface (API). Such access may result in the disclosure, modification or deletion of Your Content by the Developer or Developer Application. Further, the Developer and its agents and partners may collect and use data pertaining to your configuration and/or use of the Developer Application. Varian is not responsible for any transmission, collection, disclosure, modification, use or deletion of Your Content by or through the Developers and Developer Applications. Any information Varian receives is subject to the Site’s Privacy Statement and applicable Varian Product Agreements. Any information Developers receive will be subject to the applicable Developer Terms.
Your Content and your activities on the Site shall not, in Varian’s sole and reasonable discretion: (a) be false, inaccurate or misleading or reflect negatively on Varian; (b) be fraudulent; (c) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; or (d) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising).
Varian may disclose any information Varian may have about you (including your identity) if Varian determines that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Site, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Varian’s rights or property, or the rights or property of visitors to or users of the Site, including Varian’s customers. Varian reserves the right at all times to disclose any information that Varian deems necessary to comply with any applicable law, regulation, legal process or governmental request. Varian may also disclose your information when Varian determines that applicable law requires or permits such disclosure, including without limitation exchanging information with other companies or organizations for fraud protection purposes.
You acknowledge and agree that Varian may preserve any transmittal or communication by you with Varian through the Site or any service offered on or through the Site, and may also disclose such data if required to do so by law or Varian determines that such preservation or disclosure is reasonably necessary to (a) comply with legal process, (b) enforce these Terms, (c) respond to claims that any such data violates the rights of others, or (d) protect the rights, property or personal safety of Varian, its employees, users of or visitors to the Site, and the public.
You agree that Developers and Varian may collect and use technical data and related information, including without limitation, technical information relating to your device, system, use of Applications, that is gathered periodically to facilitate the provision of updates, support, marketing and other services related to the Applications. Developers and Varian may use this information, as long as it is in a form that does not personally identify you, to improve products and services (including with respect to Varian, the Site and Varian Products).
You agree that Varian may transmit your personal contact information (full name, company name, and email address) to the Developers and third party shipping providers as part of Your purchase or license from the Site. This information sharing is necessary for the Developer to provide support associated with your purchase or license and is required to provide you Applicators.
Varian reserves the right to do any of the following for any reason, at any time, without notice: (a) to modify, suspend or terminate operation of or access to the Site or any portion of the Site; (b) to modify or change the Site or any portion of the Site, and any applicable policies, requirements, guidelines or terms; (c) to interrupt the operation of the Site or any portion of the Site, such as may be necessary to perform routine and non-routine maintenance, error correction, or other changes; (d) to suspend or terminate any user’s right to access the Site; or (e) to block any user name, user handle or other identifier, such as those deemed to be an impersonation or misrepresentation of your identity or a misappropriation of another person’s name or identity. Your continued use of the Site after any changes, revisions, modifications, amendments or updates to these Terms constitutes your acceptance of such changes, revisions, modifications, amendments and updates. We suggest that you periodically review these Terms to determine whether any changes, modifications, amendments or updates affect you.
The Site may contain links to other independent third-party websites (“Linked Sites”). These Linked Sites are provided solely as a convenience to you. Such Linked Sites are not under Varian’s control, and Varian is not responsible for and does not endorse such Linked Sites, including any content, information, materials, products or services made available on or through such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
Certain components or features of the Site may be provided by a third-party and subject to separate agreements or terms of use of such third-party. You must read, accept and agree to be bound by any such separate agreements and terms of use as a condition of using those particular components or features of the Site.
All third-party components, features and content on the Site, including without limitation, Developer Applications and Reviews of Applications (collectively, “Third Party Content”), are the sole responsibility of the authors and providers of such Third Party Content. Varian is not responsible for any Third Party Content, regardless of whether it was reviewed or moderated by Varian. You agree that you bear all risks associated with using or relying on Third Party Content. Varian does not in any way warrant the accuracy, reliability, security, completeness, usefulness, non-infringement or quality of any Third Party Content, regardless of who originated such Third Party Content.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, VARIAN DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE SITE AND THIRD PARTY CONTENT. SUBJECT TO APPLICABLE LAW, IN NO EVENT SHALL VARIAN OR ITS AFFILIATES, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND LICENSORS BE LIABLE UNDER CONTRACT, TORT, OR ANY OTHER LEGAL THEORY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR SPECIAL LOSSES OR DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS, LOST PROFITS, LOSS OF USE, DISCLOSURE, BREACH OR LOSS OF, OR ACCESS OR DAMAGE TO DATA, HOWEVER CAUSED, WHETHER FORESEEABLE OR NOT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
VARIAN DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SITE AND OPERATION OF THE SITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF VARIAN’S CONTROL. VARIAN DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY THIRD PARTY CONTENT WILL OPERATE SECURELY OR WITHOUT INTERRUPTION. THE SITE AND ANY THIRD PARTY CONTENT MADE AVAILABLE BY VARIAN THROUGH THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND THE SITE AND THE THIRD PARTY CONTENT ARE SUBJECT TO CHANGE WITHOUT NOTICE. YOU ACKNOWLEDGE THAT YOU HAVE NOT AGREED TO THESE TERMS IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN. YOU ASSUME TOTAL RESPONSIBILITY AND ALL RISKS FOR YOUR USE OF THE SITE AND ANY THIRD PARTY CONTENT.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
Without limiting the Disclaimers in section 11, or any other disclaimer of warranties and/or limitations of liabilities in these Terms, in no event shall Varian or its affiliates, officers, directors, agents, employees or licensors total liability to you for all damages (other than as may be required by applicable law in cases involving bodily injury) (a) arising out of or related to your use or inability to use the Site, or Third Party Content made available to you through the Site, exceed one hundred ($100.00) and (b) arising from your use or inability to use an Application, or content made available to you through the Application, exceed the amount you paid for the Application. These limitations will apply to you even if the remedies fail of their essential purpose. The existence of one or more claims or parties will not enlarge the limits.
Varian shall have no responsibility whatsoever for and you shall indemnify, defend (at Varian’s request) and hold Varian, its affiliates, and their respective officers, directors, employees, sublicensees, contractors, users, agents, suppliers, successors and assigns, harmless from claims, actions, judgments, settlements, losses, deficiencies, liabilities, damages, expenses and costs, including reasonable attorneys’ fees, arising out of or related to your Registration Data, Your Content, your Reviews, your use of the Site or any Applications, your actual or alleged violation of these Terms, or your violation of any rights of a third party. Varian may at its own expense participate in the defense and settlement of any claim with its own counsel. In no event will you settle any claim without Varian’s prior written consent (not to be unreasonably withheld).
BY USING THE SITE, YOU AGREE (TO THE EXTENT PERMITTED BY APPLICABLE LAW) TO WAIVE ANY CLAIMS YOU MAY HAVE AGAINST VARIAN, AND TO HOLD VARIAN HARMLESS AND INDEMNIFY VARIAN WITH RESPECT TO ANY CLAIMS RELATING TO ANY ACTION TAKEN BY VARIAN AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THESE TERMS OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THESE TERMS HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE VARIAN OR RECOVER ANY DAMAGES WHATSOEVER FROM VARIAN AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SITE, OR TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF VARIAN’S CONCLUSION THAT A VIOLATION OF THESE TERMS HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THESE TERMS.
Your rights under these Terms will automatically terminate without notice from Varian if you fail to comply with any of its provisions. In case of such termination, you must cease all use of the Site and Varian may immediately revoke your access to the Site without notice and without refund of any purchases. Varian's failure to insist upon or enforce your strict compliance with these Terms will not constitute a waiver of any of Varian’s rights. You agree that your violation of these Terms will constitute an unlawful and unfair business practice, and will cause irreparable harm to Varian, for which monetary damages would be inadequate, and you consent to Varian obtaining any injunctive or equitable relief that Varian deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies Varian may have at law or in equity.
You also agree that Varian may, in its sole discretion and without prior notice, suspend or terminate your access to the Site and/or block your future access to the Site if we determine that you have violated requirements, guidelines, policies or other agreements that may be associated with your use of the Site. You further agree that Varian may, in its sole discretion and without prior notice, terminate your access to the Site, for cause, which includes without limitation: (a) a request by law enforcement or other government agency, (b) a request by you (self-initiated account deletions), (c) discontinuance or material modification of the Site or any Third Party Content, or (d) unexpected technical issues or problems.
If Varian does take any legal action against you as a result of your violation of these Terms, Varian will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Varian. You agree that Varian will not be liable to you or to any third party for termination or suspension of your access to the Site as a result of any violation of these Terms.
You may terminate your account and/or stop using the Site at any time. Termination of your account shall not relieve you of any obligations to pay any accrued fees or charges. Upon termination of your account, you lose all access to the Site and any data stored thereon, including without limitation, your Registration Data and your Reviews. Varian will not be responsible to you or any third party for any damages that may result or arise out of termination of your account.
Varian may send you notices with respect to the Site, Applications and Varian Products by sending an email message to the email address in your Registration Data. Any notice to you shall be deemed given twenty‑four (24) hours after the email is sent, unless Varian is notified that the email address is invalid. Alternatively, Varian may give you notice by certified mail, postage prepaid and return receipt requested, to the address in your Registration Data. In such case, notice shall be deemed given three (3) days after the date of mailing.
Any notices to Varian that are required or permitted pursuant these Terms shall be in writing and delivered: (a) in person, (b) by overnight delivery with delivery confirmation or (c) by first class certified mail, return receipt requested, or its international equivalent. All such notices shall be addressed to Varian at Legal Department, Varian Medical Systems, Inc., 3100 Hansen Way, M/S E-250, Palo Alto, CA 94304. Any notice to Varian shall be deemed to have been given when received.
These Terms shall be interpreted in accordance with its provisions and without any strict construction in favor of or against either party. These Terms are governed by and shall be construed in accordance with the laws of the State of California without regard to conflicts of law provisions, and the United Nations Convention for the International Sale of Goods shall not apply.
The parties shall endeavor to settle any dispute arising out of these Terms, except those pertaining to intellectual property issues, by mediation under the Mediation Rules of the American Arbitration Association (“AAA”). The parties will attempt to agree on a mediator. Failing such agreement, the mediator will be appointed by the AAA Vice President in charge of Mediation. Any dispute arising out of or relating to these Terms, including without limitation, the breach or validity thereof, which has not been resolved by mediation as provided herein within thirty (30) days after appointment of a mediator or such time period as the parties may otherwise agree, shall be finally resolved by binding arbitration in accordance with the AAA Commercial Rules, by three (3) independent and impartial arbitrators, all of whom shall be appointed by AAA, provided, however, that if one party fails to participate in the mediation as agreed in this section, the other party can commence arbitration prior to the expiration of the time periods set forth above. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et seq., and judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration shall be Palo Alto, California. The procedural law shall be the law of the place where arbitration is conducted. Arbitration proceedings shall be conducted in English. The arbitration tribunal shall not award punitive damages. The expenses of the arbitration, including the arbitrator’s fees, expert witness fees, and attorney’s fees, may be apportioned between the parties in any manner deemed appropriate by the arbitrator; however, in the absence of any formal ruling by the arbitrator each party shall share equally in the payment of the arbitrator’s fees and bear its own costs, expert witness fees, and attorney’s fees. The arbitration award shall be final and binding, shall be the sole and exclusive remedy regarding any and all claims and counterclaims presented, and may not be reviewed by or appealed to any court except for enforcement.
Any cause of action arising under or relating to these Terms must be brought exclusively in a court in Santa Clara County, California. However, this will not affect your statutory rights if you are a consumer and the competent court determines that applicable consumer law requires application of another law (such as the law of your country of residence).
Nothing in these Terms shall prohibit either party from seeking to prevent any unauthorized copying, disclosure, use, retention, or distribution of its confidential information or intellectual or other property by injunctive relief or otherwise in a court of law, which shall be submitted to the exclusive jurisdiction of the United States District Court for the Northern District of California, San Jose Branch.
Varian may in its discretion terminate the account or access of anyone who infringes the intellectual property rights of others. Varian is registered with the United States Copyright Office as a Service Provider (refer to the Digital Millennium Copyright Act 17 U.S.C. § 512). If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide Varian’s designated agent with the following information:
Varian’s agent designated to receive claims of copyright or other intellectual property infringement may be contacted as follows:
Varian Medical Systems, Inc. Attn: DMCA Agent, Legal Dept. 3100 Hansen Way Palo Alto, CA 94304 DMCA@varian.com
Varian has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe copyrights or other intellectual property rights of Varian and/or others.
These Terms do not create a relationship such as a partnership, franchise, joint venture, agency, master/servant, or employment relationship. You shall not act in a manner, which expresses or implies a relationship other than that of independent contractor. You certify that you are of the legal age of majority in the jurisdiction in which you reside (at least 18 years of age in many countries) and you represent that you are legally permitted to become a registered user of the Site.
You may not use or otherwise export or re-export any Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, Applications may not be exported or re-exported to, or downloaded in, (a) any U.S. embargoed location (including Iran, Cuba, Syria, Sudan, North Korea or Crimea)or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Site and any Application, you represent and warrant that you are not located in any such country or on any such list.
If you are a U.S. Government end user, each Application is being provided to you as a “Commercial Item” as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights granted to you for the Applications are the same as the rights customarily granted to others.
These Terms will bind your successors but may not be assigned, in whole or part, by you without the written approval of an authorized representative of Varian. Any non-conforming assignment shall be null and void. Varian may freely assign, transfer and delegate its rights and obligations under these Terms. You acknowledge and agree that Varian’s affiliates, contractors and service providers may exercise all rights of Varian under these Terms.
If any provision of these Terms is deemed by a court to be illegal, invalid or unenforceable, that provision will be eliminated, limited, or modified and interpreted to the extent necessary, so as to best accomplish the objectives of such provision within the limits of applicable law or court decisions and the remainder of these Terms will remain in full force and effect. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
Varian’s failure to act with respect to a breach by you or others does not waive Varian’s right to act with respect to subsequent or similar breaches. Except as explicitly set forth herein, these Terms do not confer any third party beneficiary rights. These Terms set forth the entire understanding and agreement between the parties with respect to the subject matter hereof.