Terms of Use
Last Updated: Tuesday, August 23, 2022
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1. Terms of Use.
1.1 Agreement. These Terms of Use (or alternatively this “Agreement”) form a contract and constitute an agreement between you, the end user (“You” or “Your”), and Memorial Sloan-Kettering Cancer Center, Memorial Hospital for Cancer and Allied Diseases, and Sloan-Kettering Institute for Cancer Research, each a New York not-for-profit corporation having offices at 1275 York Avenue, New York City, New York 10065 (collectively, “MSK”) in connection with Your access to and use of this website (the “MSK Brand Portal”) to access and use one or more elements of the “MSK Brand,” which includes words, names, symbols, logos, colors, patterns, typographies, images, infographics, designs, devices, and any variations, adaptations, or combinations thereof, whether or not subject to copyright, trademark, service mark, collective mark, collective membership mark, certification mark, trade name, trade dress, or other intellectual property right or specific legal protection, or covered in whole or in part by any registrations of or applications to register any of the foregoing, used to: (i) identify and distinguish products or services as emanating from MSK and not another; (ii) indicate MSK as the source of such products or services; and/or (iii) identify such products or services as being of a particular type or quality. You recognize the respective valid version of these Terms of Use as an integral part of all existing and/or future contractual arrangements between MSK and You in connection with Your use of MSK Brand elements, irrespective of whether the Terms of Use are or are not expressly referenced.
1.2 Revisions and Deviations. MSK may revise these Terms of Use without notice from time to time by updating or revising this posting, with the revised Terms of Use taking effect as of the date of posting. Your continued use of the MSK Brand Portal following the posting of changes to the Terms of Use will mean that You accept and agree to such changes. Any deviations and/or supplements to these Terms of Use require the express written approval of MSK to be valid. Such deviations and/or supplements will not have any prejudicial effect for other agreements between MSK and You.
1.3 MSK Representatives. If You are employed by or otherwise represent MSK (an “MSK Representative”), You may access and use MSK Brand elements for business purposes in the course of and as required by Your employment or representation of MSK and in accordance with all agreements between You and MSK, all applicable MSK policies, and these Terms of Use.
1.4 Third-Party Representatives. If You are or are employed by or otherwise represent a contractual partner of MSK (“Licensee”) or a permitted affiliate, assignee, or sublicensee of Licensee (a “Third-Party Representative”) pursuant to a separate agreement between MSK and Licensee (a “License Agreement”) in connection with access to and use of the MSK Brand element(s) named and described in the License Agreement (“Licensed Marks”), You may access and use the Licensed Marks solely to exercise the rights in the field and territory named and described in the License Agreement (“Licensed Uses”) in accordance with these Terms of Use. In the event of a conflict between the terms of the License Agreement and these Terms of Use, the License Agreement will prevail.
2. License Grant, Sublicensing, and Reserved Rights.
2.1 Grant of Non-Exclusive License. MSK hereby grants You a non-exclusive and non-transferable license to access the MSK Brand element(s) (hereinafter limited to Licensed Marks for Third-Party Representatives) and any associated guidelines for their use (the “Brand Guidelines”) by means of a browser and an Internet connection via the MSK Brand Portal and to use the MSK Brand element(s) (hereinafter limited to Licensed Uses for Third-Party Representatives) solely in accordance with the Brand Guidelines, these Terms of Use, any applicable MSK policy, and all the terms and conditions of any applicable License Agreement.
2.2 No Implied Licenses. Except for such licenses and rights as are specifically granted in or pursuant to these Terms of Use and any applicable License Agreement, You will have no license or rights by implication, estoppel, or otherwise in any MSK Brand elements, the Brand Guidelines, any goodwill derived from or associated with any of the foregoing, or any other intellectual property owned, licensed, or otherwise controlled by or associated with MSK.
2.3 Reserved Rights. Notwithstanding anything to the contrary in these Terms of Use or any applicable License Agreement, the licenses granted by MSK are subject to the following reserved rights:
(a) MSK will own and retain all right, title, and interest in and to (i) the MSK Brand and all elements thereof; (ii) the content of the MSK Brand Portal, including the Brand Guidelines; (iii) any improvements, enhancements, translations, or derivative works of or modifications to any of the foregoing; and (iv) any intellectual property rights related to any of the foregoing. All prosecution and maintenance of intellectual property rights in any of the foregoing will be at MSK’s sole discretion.
(b) The rights and licenses granted by MSK to You relating to the MSK Brand are limited to those specifically set forth in Section 2.1 and any applicable License Agreement. You will not use the content of the MSK Brand Portal, particularly any MSK Brand elements or Brand Guidelines, outside of the scope expressly licensed hereunder.
(c) Except to the extent expressly permitted by MSK or authorized under any applicable License Agreement, You will not, directly or indirectly, do any of the following with respect to the content of the MSK Brand Portal, including any MSK Brand elements or Brand Guidelines: (i) register or apply for registration of the same, or any similar variation thereof, anywhere in the world; (ii) register a domain name that contains the same, or any similar variation thereof; (iii) use the same, a portion of the same, or any similar variation thereof; (iv) oppose any application therefor or petition to cancel an existing registration thereof; (v) modify, translate, or create derivative works based thereon; (vi) remove any proprietary notices or labels therefrom; (vii) grant an encumbrance of any of Licensee’s rights under any applicable License Agreement (including without limitation a security interest); or (viii) fail to comply with applicable laws.
(d) All use of any MSK Brand elements by You will be for the benefit of MSK, and any goodwill accrued to You or a third party you represent arising from Your use of any MSK Brand elements will accrue to MSK, which goodwill You hereby assign to MSK on behalf of You and/or the third party.
(e) MSK reserves the right to use and/or license other third parties to use the content of the MSK Brand Portal, including any MSK Brand elements, for any purpose.
(f) All rights not specifically granted to You relating to the MSK Brand, the MSK Brand Portal, and any content included or referenced therein, or linked therefrom are reserved.
3. Operations Under the License.
3.1 Account Information and Password. To access or use the MSK Brand Portal, You may be required to register an account and/or provide MSK with certain information about You. You agree, represent, and warrant that such information is accurate and complete. The MSK Brand Portal and/or account will be accessible by means of a password. You are responsible for maintaining the confidentiality of the password and are fully responsible for all activities that occur through the authorized or unauthorized use of the password and/or account. You agree to immediately notify MSK if you become aware of any unauthorized use of the password and/or account or any other breach of security.
3.2 Access and Availability. Your right to access and make use of the MSK Brand Portal is governed by this Agreement. You are responsible for the Internet connection between Your computer and the hardware and software required to access the MSK Brand Portal (e.g., PC, network connection, browser). MSK cannot guarantee availability of the MSK Brand Portal at all times or absence of any other disruptions and interruptions to the functioning. You will notify MSK of any disruptions or interruptions without delay and provide information regarding the details of the circumstances of the issue. MSK will remedy any disruption or interruption to the MSK Brand Portal within an appropriate period of time or, at its sole discretion, circumvent the disruption or interruption to the MSK Brand Portal by means of a workaround solution.
3.3 Suspension or Termination. MSK may, in its sole and absolute discretion, take whatever action it deems necessary to preserve the integrity of the MSK Brand Portal. Violation of any of the Terms of Use set forth herein, or your violation of the letter or spirit of this Agreement, may result in actions being taken by MSK, effective immediately or at a time determined by MSK, which may include without limitation: (i) temporarily suspending Your access to the MSK Brand Portal; or (ii) permanently terminating Your access to the MSK Brand Portal. Without limiting the foregoing, MSK retains the right to decline service, at any time, to any user, visitor, or third party who violates the Terms of Use herein. Notwithstanding the foregoing, no exercise, or failure to exercise, or delay in exercising any right, power, or remedy vested in MSK under this provision shall constitute a waiver by MSK of that or any other right, power, or remedy. For MSK Representatives, in the event Your employment by or representation of MSK ends, MSK is entitled to block Your access to the MSK Brand Portal. For Third-Party Representatives, in the event of expiration or termination of any applicable License Agreement, or if Licensee defaults on the payment of any applicable fees under the terms of such License Agreement, MSK is entitled to block Your access to the MSK Brand Portal.
3.4 Confidentiality. The Brand Guidelines and any other proprietary or confidential information provided to You via the MSK Brand Portal is deemed to be “Confidential Information.” You agree to employ all reasonable efforts to maintain the information secret and confidential.
3.5 Compliance with Law. You will in all respects conduct Your activities under these Terms of Use in full compliance with all applicable laws and regulations.
3.6 Other User Obligations. You agree not to (assist or enable any third party to) collect content or otherwise access the MSK Brand Portal using automated means (such as harvesting bots, robots, spiders, or scrapers), without MSK’s express prior written approval and consent. Furthermore, You agree not to (assist or enable any third party to) do anything that could disable, overburden, or impair the proper working or appearance of the MSK Brand Portal, such as a denial-of-service attack or interference with page rendering or other functionality.
3.7 Involvement of Third Parties. MSK is entitled to involve third parties for the purpose of meeting its contractual obligations. MSK will not accept any liability for the services of third parties involved to the extent legally permissible.
4. Indemnification.
4.1 Indemnification by Third-Party Representatives. You will indemnify, defend, and hold harmless MSK and its Affiliates, trustees, directors, officers, medical and professional staff, employees, contractors, agents, and involved third parties and their respective successors, heirs, and assigns (collectively, the “MSK Protected Parties”) against any liability, damage, loss, or expense (including attorneys’ fees and expenses of litigation) incurred by or imposed upon the MSK Protected Parties, or any one of them, in connection with any claims, suits, actions, demands, or judgments arising from or occurring as a result of: (i) access to and use of the MSK Brand Portal and any content included or referenced therein, or linked therefrom, including any use by You; (ii) a breach of these Terms of Use or any applicable License Agreement by You; (iii) any activities carried out pursuant to or the exercise of any rights granted under these Terms of Use or any applicable License Agreement by You; (iv) a violation of any rights of a third party, including but not limited to claims of infringement of third-party intellectual property rights or rights of privacy or publicity or claims of defamation by You; or (v) a violation of any applicable laws or regulations by You.
4.2 Indemnification by MSK Representatives. You will indemnify, defend, and hold harmless the MSK Protected Parties against any liability, damage, loss, or expense (including attorneys’ fees and expenses of litigation) incurred by or imposed upon the MSK Protected Parties, or any one of them, in connection with any claims, suits, actions, demands, or judgments arising from or occurring as a result of: (i) any non-business (personal or commercial) use by You of any MSK Brand elements unrelated to your responsibilities as an MSK Representative without prior written approval from MSK; and (ii) a breach of these Terms of Use by You.
5. Warranty Disclaimer.
The MSK Brand Portal AND any content included, or referenced therein, OR LINKED THEREFROM, ARE PROVIDED ON AN “AS IS” BASIS. the MSK Protected Parties, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, NONE OF THE MSK PROTECTED PARTIES MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, RELIABILITY, CURRENCY, OR COMPLETENESS OF THE MSK BRAND PORTAL OR THE SCOPE OF ANY MSK BRAND ELEMENTS OR BRAND GUIDELINES PROVIDED THROUGH THE USE OF The MSK Brand Portal OR THAT SUCH MSK BRAND ELEMENTS MAY BE EXPLOITED BY LICENSEES OR ANY AFFILIATES OR SUBLICENSEES WITHOUT INFRINGING THIRD-PARTY RIGHTS. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH PROVIDES THAT A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
6. Limitation of Liability.
UNDER NO CIRCUMSTANCES WILL ANY OF THE MSK PROTECTED PARTIES BE LIABLE FOR ANY INDIRECT LOSS, DAMAGE (WHETHER LOST PROFITS, LOST BUSINESS OPPORTUNITY, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER TYPE OF DAMAGE), INJURY, CLAIM, LIABILITY, OR OTHER CAUSE OF ACTION OF ANY KIND RESULTING FROM OR IN ANY WAY ASSOCIATED WITH The MSK Brand Portal, any content included or referenced therein, OR LINKED THEREFROM, OR ANY USE OF ANY OF THE FOREGOING OR ARISING OUT OF THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATION UNDER THESE TERMS OF USE OR ANY APPLICABLE LICENSE AGREEMENT. THIS LIMITATION APPLIES TO THE FULLEST EXTENT PERMITTED BY LAW AND WITHOUT REGARD TO WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF AN MSKCC PROTECTED PARTY (OR PARTIES) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IF FOR ANY REASON THE MSKCC PROTECTED PARTIES ARE FOUND TO BE LIABLE, THEIR AGGREGATE LIABILITY TO YOU OR ANY OTHER PARTY OR PARTIES CLAIMING WITH, UNDER OR THROUGH YOU, SHALL BE LIMITED TO THE AMOUNT YOU PAID, IF ANY, TO MSKCC FOR LICENSING ANY MSK Brand elements. NOTWITHSTANDING THE NUMBER OF CLAIMS AND NOTWITHSTANDING ANY CLAIM THAT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NO CLAIM OR ACTION ARISING FROM OR CONCERNING THE MSK Brand Portal, content included, or referenced therein, OR LINKED THEREFROM, OR OTHERWISE HEREUNDER MAY BE BROUGHT LATER THAN ONE YEAR FROM THE DATE THE CLAIM OR CAUSE OF ACTION AROSE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF DAMAGES OR LIABILITY AND, ALTHOUGH THE EXCLUSIONS, LIMITATIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL ALWAYS BE CONSTRUED TO BE EFFECTIVE TO THE FULLEST EXTENT OF THE LAW, YOU SHOULD CONSULT YOUR OWN LEGAL ADVISOR SHOULD YOU WISH TO DETERMINE THE LAWS AND REGULATIONS THAT APPLY TO YOU.
7. Miscellaneous
7.1 Governing Law. These Terms of Use will be construed, governed, interpreted, and applied in accordance with the laws of the State of New York, without giving effect to any choice/conflict of law principles. The state and federal courts located in New York County, New York, will have exclusive jurisdiction of any claims or actions between or among the parties arising out of or relating to this Agreement, and each party consents to venue and personal jurisdiction of those courts for the purpose of resolving any such disputes.
7.2 Waiver. The failure of MSK to assert a right hereunder or to insist upon compliance with any term or condition herein will not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition by You.
7.3 Severability. Except to the extent a provision is stated to be essential, or otherwise to the contrary, the provisions of these Terms of Use are severable, and in the event that any provisions of these Terms of Use will be determined to be invalid or unenforceable under any controlling body of the law, such invalidity or unenforceability will not in any way affect the validity or enforceability of the remaining provisions hereof.
7.4 Interpretation. The captions are provided for convenience and are not to be used in construing these Terms of Use. Unless the context of these Terms of Use otherwise requires, (a) words using the singular or plural number also include the plural or singular number, respectively; (b) the term “or” will have the inclusive meaning of the term “and/or”; (c) “including” and its cognates will have the non-limiting meaning of “including, without limitation”; (d) the term “will” will have the same meaning and import as the term “shall”; (e) the terms “hereof,” “herein,” “hereby,” and derivative or similar words refer to this entire contractual relationship; and (f) the term “Section” refers to the specified Section of these Terms of Use.