THE JOURNAL OF BONE AND JOINT SURGERY
Last modified September 2017
THIS AGREEMENT GOVERNS YOUR USE OF ALL JBJS DIGITAL PRODUCTS AND SERVICES, INCLUDING JBJS.ORG, JBJS MOBILE APPLICATIONS, CLINICALCLASSROOM.JBJS.ORG AND, UNLESS OTHER TERMS AND CONDITIONS EXPRESSLY APPLY, ANY OTHER ELECTRONIC SERVICE OF JBJS THAT MAY BE MADE AVAILABLE FROM TIME-TO-TIME (EACH A “SERVICE”). ANY USE OF THE SERVICES SHALL CONSTITUTE ACCEPTANCE OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICE JBJS IS NOT LIABLE FOR THE USE OF THIS SERVICE BY, OR FOR ANY CONTENT OR ADVERTISEMENTS VIEWED BY, MINOR CHILDREN IN VIOLATION OF THIS AGREEMENT.
- No Endorsement. Many of the texts, images, articles, photographs, illustrations, audio, graphics, graphs, video clips, and other materials available through the Service (the “Content”) are prepared by third parties and are being provided solely for your educational and informational benefit. Your reliance on the Service or the Content is at your own risk.
- Access to the Service.
- Subject to your acceptance of and compliance with this Agreement, JBJS grants you a non-exclusive, non-transferable, revocable license to use the Services and Content for your personal non-commercial use. You agree not to use the Services or Content for other purposes.
- JBJS will make reasonable efforts to keep the Services available 24 hours a day, 7 days a week. However, owing to technical failures, routine maintenance, or other unforeseen circumstances, availability may be limited, and JBJS will not be responsible for the non-availability of the Services. JBJS reserves the right to modify, suspend, discontinue, or restrict access to, all or any part of the Services at any time. JBJS may also impose limits on certain features or restrict or prohibit your access to parts or all of the Service at any time, all without notice or liability.
- You expressly agree that the Content is intended to be viewed and accessed only by end users and that you will not make it available to any other website or web publisher.
- Your use of the Services is conditioned upon your compliance with this Agreement and any use of the Services in violation of this Agreement may constitute infringement of JBJS’s copyrights in and to the Services and Content (as applicable). JBJS reserves the right to terminate your access to the Services without notice if you violate this Agreement or for any reason at JBJS’s discretion.
- Use of the Service by Minors. Individuals under the age of 21 may not use the Services. By using the Service, you represent that you are 21 years of age or older.
- Ownership of Intellectual Property.
- Copyright. Unless otherwise specified in writing, all Content and other materials that are part of the Service are owned, controlled, or licensed by JBJS and its licensors, are protected by copyright law and other applicable laws, and may be used only in accordance with such laws. You agree not to copy, redistribute, publish or otherwise exploit Content, except as expressly permitted herein or permitted by law, without the express prior written permission of JBJS.
- Trademarks. The Journal of Bone and Joint Surgery, JBJS, the JBJS logo design, and JBJS Clinical Classroom (the “JBJS Trademarks”) are trademarks of JBJS and may not be used except as permitted by JBJS or as allowed by law. You agree that all goodwill that arises in connection with your use of JBJS Trademarks inures solely to JBJS, and you agree not to challenge JBJS’s ownership or control of any JBJS Trademarks or use or adopt any trademarks that might be confusingly similar to such JBJS Trademarks.
- Ownership; Information. You do not acquire any ownership rights by using the Service, or by copying or downloading material from the Service. However, you retain ownership of any information or content initially owned by you that you upload or incorporate into the Service.
- Feedback. You hereby grant to JBJS a limited, non-exclusive, worldwide, perpetual, irrevocable, royal-free, sublicensable (through multiple tiers), and transferable right and license to use all comments, feedback, forum statements, suggestions, ideas, emails, and other submissions disclosed or submitted to JBJS in connection with your use of the Service (collectively, “Submissions”) in any manner JBJS may desire, including, but not limited to, to make, have made, use, sell, offer to sell, import, reproduce, modify, create derivative versions of, distribute, publicly display and publicly perform such Submissions, in any and all forms and media now known or hereafter devised, without compensation to you and without identifying you as the creator. We shall have the right in our sole discretion to edit, refuse to post, or remove any Submission and are under no obligation to display or otherwise use your Submission. You authorize JBJS to publish your name and location (city, state and/or country) in connection with any use of your Submission and, in identifying yourself and location, you represent that you have done so accurately. You agree that the provisions in this Section 4 will survive any termination of your account(s), the Service, or this Agreement.
- Proprietary Notices. You agree to include, and to not remove or alter, JBJS’s trademark, copyright or other proprietary rights notices, as provided by JBJS on or in connection with the Service, when using or sharing Content or otherwise using the Service, and you agree to comply with any usage guidelines that may be provided by JBJS from time to time.
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- If you accessed or downloaded the App from the Apple Store, you agree to use the App only: (1) on an Apple-branded product or device that runs iOS (Apple’s proprietary operating system software); and (2) as permitted by the “Usage Rules” set forth in the Apple Store Terms of Service as of the effective date of this Agreement. If You accessed or downloaded the App from any app store or distribution platform (like the Apple Store, Google Play or the Amazon Appstore) (each, an “App Provider”), then you acknowledge and agree that:
- This Agreement is between you and JBJS, and not with App Provider, and that, as between JBJS and the App Provider, JBJS is solely responsible for the App.
- The App Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
- In the event of any failure of the App to conform to any applicable warranty, you may notify App Provider and App Provider will refund to you any purchase price you paid for the App (if applicable) and, to the maximum extent permitted by applicable law, App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the App to conform to any warranty will be the sole responsibility of JBJS.
- App Provider is not responsible for addressing any claims you or any third party may have relating to the App or your possession and use of the App, including, but not limited to: (1) product liability claims; (2) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
- In the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, JBJS will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim solely to the extent required by this Agreement.
- App Provider and its subsidiaries are third-party beneficiaries of this Agreement as related to your license of the App, and, upon your acceptance of this Agreement, App Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App against you as a third party beneficiary thereof.
- You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App you represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
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- Usage Rules. As a condition of your use of and access to the Service, you agree to comply with any application-, tool-, or content-specific rules published within the Service as well as the following usage rules, which JBJS may modify or supplement in its discretion from time to time (with notice to you of material changes, per Section 1). You agree that you will not, in regard to the Service (as determined by JBJS in its discretion):
- Copy, adapt, reverse engineer, decompile, reverse assemble, modify or attempt to discover any software (source code or object code) that the Service creates to generate web pages or any software or other products or processes accessible through the Service;
- use or launch, develop or distribute any automated system, including, without limitation, any spider, robot (or “bot”), cheat utility, scraper or offline reader that accesses the Service, or use or launch any unauthorized script or other software;
- distribute any virus, time bomb, trap door, or other harmful or disruptive computer code, mechanism or program;
- cover or obscure any notice, legend, warning, banner or advertisement contained on the Service;
- interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service;
- violate any applicable law, including without limitation any applicable export laws;
- harvest or otherwise collect information about others, including email addresses, without their permission for posting or viewing Submissions;
- infringe or violate the rights of any other party, including without limitation any intellectual property rights or rights of privacy or publicity;
- engage in conduct that is obscene, offensive, pornographic, fraudulent, deceptive, defamatory, threatening, harassing, abusive, slanderous, hateful, or causes embarrassment to any other person;
- further any chain letters or pyramid schemes, transmit unsolicited messages, or engage in “spam”
- deliberately mislead anyone as to your identity, impersonate another, falsely identify the source of any Submissions, or allow another person or entity to use your identity in order to access the Service or post or view Submissions;
- engage in conduct that conflicts with the spirit or intent of the Service, including without limitation, by restricting any other user from using or enjoying the Service, or exposing JBJS or another to any liability or detriment of any kind; or
- use automated queries, including screen and database scraping, spiders, robots, crawlers, information harvesting,, and any other automated activity with the purpose of obtaining Content, information or data from the Service, unless you receive the express written permission of JBJS.
- Child Online Protection Act Notification. Pursuant to 47 U.S.C. § 230(d) as amended, JBJS hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying providers of such protection is available on the websites StaySafeOnline (http://staysafeonline.org/stay-safe-online/), GetNetWise (http://kids.getnetwise.org/), and OnGuardOnline (http://www.onguardonline.com/). Please note that JBJS is not affiliated with the above listed sites, nor is the above intended as an endorsement of any of the products or services listed on such sites.
- Disclaimers; Limitations; Waivers of Liability.
- THE SERVICES ARE INTENDED FOR EDUCATIONAL, RESEARCH, SELF-STUDY, AND REFERENCE PURPOSES ONLY AND ARE NOT INTENDED TO SUBSTITUTE FOR THE EXERCISE OF PROFESSIONAL JUDGMENT. MEDICAL SCIENCE AND CLINICAL PRACTICE IS EVER-CHANGING. USERS, WHENEVER POSSIBLE, ARE ADVISED TO CONFIRM THE INFORMATION AVAILABLE FROM THE SERVICES THROUGH INDEPENDENT SOURCES. THE INFORMATION AVAILABLE THROUGH THE SERVICES SHOULD NOT BE SUBSTITUTED FOR THE ADVICE OR JUDGEMENT OF A QUALIFIED HEALTH CARE PROFESSIONAL. DO NOT DISREGARD OR AVOID PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING IT BECAUSE OF MATERIALS MADE AVAILABLE THROUGH THE SERVICES.
- YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT THIS DISCLAIMER IS PROHIBITED UNDER APPLICABLE LAWS, AND WITH ANY LEGALLY REQUIRED WARRANTY PERIOD LIMITED TO THE SHORTER OF 30 DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). WITHOUT LIMITING THE FOREGOING, NEITHER JBJS NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “JBJS PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, UNCORRUPTED, TIMELY, OR ERROR-FREE.
- THE JBJS PARTIES FURTHER MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE OR THE CONTENT WILL BE ACCURATE, RELIABLE, COMPLETE, CURRENT, OR TIMELY. THE SERVICE MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. JBJS IS NOT RESPONSIBLE FOR TECHNICAL MALFUNCTIONS OR OTHER PROBLEMS OF TELEPHONE NETWORKS OR SERVICES, COMPUTER SYSTEMS, MOBILE PHONE EQUIPMENT, SOFTWARE, OR EMAIL, INCLUDING TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY SITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO A USER’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 WEB AND/OR IN CONNECTION WITH THE SERVICES.
- THE JBJS PARTIES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION, THE USE OR MISUSE OF SUBMISSIONS OR CONTENT IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE, WHETHER OR NOT THE JBJS PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE FOREGOING EXCLUSION OF LIABILITY IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, AND A DETERMINATION IS MADE THAT JBJS IS LIABLE, UNDER NO CIRCUMSTANCES WILL THE JBJS PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID JBJS IN THE 90 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT THE CLAIM.
- TO THE FULLEST EXTENT PERMITTED BY LAW, THESE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE).
- Release. You forever release, discharge, and covenant not to sue the JBJS Parties from any and all liability, claims, actions, and expenses that may arise, whether caused by the negligence of the JBJS Parties or otherwise, in connection with your use of the Service or your interaction with any party through or as a result of the Service. In other words, you cannot sue the JBJS Parties if anything happens to you or your property from using the Service or interacting with any party through the Service. You agree that the provisions in this Section 11.6 will survive any termination of your account(s), the Service, or this Agreement.
- Indemnification. You agree to defend, indemnify and hold harmless the JBJS Parties from and against all liability, claims, actions and expenses, including attorneys’ fees and costs, arising out of your use of the Service or your breach or alleged breach of any term, condition, obligation, representation or warranty in this Agreement. You agree that the provisions in this paragraph will survive any termination of your account(s) the Service, or this Agreement.
- Copyright Policy; Objectionable Content: If you believe your rights have been violated by, or you otherwise object to, any posting, content or information on the Service, please contact us promptly so we can evaluate the claim and take appropriate action. If your complaint includes a claim of copyright infringement, the following policy will apply:
- It is JBJS’s policy to respond promptly to claims of copyright infringement, and to remove, or disable access to, infringing material. If you believe that any of the content or materials appearing on this Service contain infringements, please send a notice to our designated agent at the address stated below. Your notice should contain the following: a physical or electronic signature of a person (i.e., claimant) authorized to act on behalf of the copyright owner; identification of the copyrighted work claimed to be infringed; identification of the content or material claimed to be infringing; a reference or link to the infringing material or activity, or the subject of the infringing activity, including information to enable us to locate that material or reference; the address, telephone number or email address of the claimant; a statement that the claimant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notice is accurate and, under penalty of perjury, that the claimant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. JBJS will also terminate a user’s account if a user is deemed to be a repeat infringer, namely, one who has been notified of bona fide infringing activity more than twice. Our designated agent, to whom you should direct your infringement claim (or other complaints), is:
- Designated Agent: Paul Sandford
The Journal of Bone and Joint Surgery, Inc.
20 Pickering Street, 3F
Needham, MA 02492
- Governing Law/Waiver of Injunctive Relief.
- This Agreement and all aspects of the Service will be governed by and construed in accordance with the internal laws of the U.S. and the Commonwealth of Massachusetts, governing contracts entered into and to be fully performed in Massachusetts (thus, without regard to conflict of laws provisions) regardless of your location. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state or federal courts located in Boston, Massachusetts, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in Boston, Massachusetts.
- You acknowledge that the rights granted and obligations made hereunder to JBJS are of a unique and irreplaceable nature, the loss of which will irreparably harm JBJS and which cannot be replaced by monetary damages alone, so that JBJS will be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for monetary damages (if any).
- To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and JBJS agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. You will send your notice to JBJS, 20 Pickering Street, Needham, MA 02492, Attention: Executive Publisher.
- Mandatory Arbitration. If you and JBJS are unable to resolve a Dispute through informal negotiations within 30 days, either you or JBJS may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS, which is available at the JAMS website www.jamsadr.com. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
- Notwithstanding the above, you and JBJS agree that arbitration will be limited to the Dispute between JBJS and you individually. To the full extent permitted by law, (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
- You and JBJS agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or JBJS’s intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief or to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
- The failure of JBJS to require or enforce strict performance by you of any provision of this Agreement or to exercise any right under any provision of this Agreement will not be construed as a waiver or relinquishment of JBJS’s right to assert or rely upon any such provision or right in that or any other instance.
- You and JBJS agree that if any portion of this Agreement, except any portion of Section 14.4, is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision will, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of this Agreement, which will continue to be in full force and effect. If Section 14.4 is found to be illegal or unenforceable then neither you nor JBJS will elect to arbitrate any Dispute falling within that portion of Section 14.4 found to be illegal or unenforceable and such Dispute will be decided by a court of competent jurisdiction within Boston, Massachusetts, and you and JBJS agree to submit to the personal jurisdiction of that court.
- Term and Termination. This Agreement will remain in effect as long as your account is up-to-date and you remain in compliance with the terms hereof, unless it has been voluntarily suspended or terminated by you or JBJS. You may terminate this Agreement by destroying all Service-related materials obtained from the Service, JBJS or any other web site or source. The privileges granted to you under this Agreement will terminate immediately and automatically without notice from JBJS if, in our sole discretion, you fail to comply with any term or provision of this Agreement or for any reason in JBJS’s sole discretion. Following the termination of this Agreement, your account(s), or the Service, JBJS shall retain all rights to the Submissions pursuant to this Agreement.
- Questions? If you have any questions about this Agreement, its terms, your account or your rights hereunder, or if you have any complaints or claims, please contact: Executive Publisher, JBJS, 20 Pickering Street, Needham, MA 02594, (781) 449-9780.