PLEASE READ THE FOLLOWING END USER LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE INDICATING YOUR ACCEPTANCE. WITH YOUR ACCEPTANCE, THIS IS A LEGAL CONTRACT BETWEEN UPTODATE, INC. ("UPTODATE") AND YOU ("YOU").
In this Agreement, the term "you" refers to an individual entering into this AGREEMENT as a condition of using Medi-Span® Price Rx® through a subscription purchased by an entity or other institution ("Institution"), where the individual is employed by or affiliated with the Institution.
BY CLICKING ON THE "I ACCEPT" BUTTON, OR BY DOWNLOADING, ACCESSING OR USING THE CONTENT, YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT AT ALL TIMES.
IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE CONTENT. IN SUCH CASE, CLICK THE "I DECLINE" BUTTON.
1. Content. The Medi-Span Price Rx informational content, data, materials and software, as well as any third-party software, documentation and any information accompanying this AGREEMENT, provided to YOU via the Internet (collectively the "Content") are licensed, not sold, to YOU by UPTODATE for use only under the terms of this AGREEMENT, and UPTODATE reserves all rights not expressly granted to YOU. The terms of this AGREEMENT will govern any upgrade(s) provided by UPTODATE that replace and/or supplement the original Content, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
2. License. In consideration of the subscription fee paid to UPTODATE and subject to the terms and conditions of this AGREEMENT, YOU are granted a limited non-exclusive, non-transferable, revocable license to access servers controlled by UPTODATE ("Servers") only for the purpose of using and accessing the Content in accordance with the applicable subscription terms (as may be further provided in UPTODATE’s separate invoice terms or any additional subscription and license terms entered into by and between UPTODATE and the Institution). This AGREEMENT does not allow the Content to exist locally on more than one computer at a time, and YOU may not make the Content available over a network where it could be used by multiple computers at the same time.
3. Ownership. The Content, including without limitation all copyrights and other intellectual property rights therein, are the sole and exclusive property of UPTODATE (or its parents, subsidiaries, affiliates, or designees) or its suppliers. By indicating that YOU accept these terms, YOU do not become the owner of the Content, but are entitled to use them only according to the terms of this AGREEMENT.
4. License Restrictions. You may NOT do any of the following yourself, or through any third party, and YOU may not permit or enable any third party to do any of the following (except as and only to the extent any of the following restrictions are prohibited by applicable law): (A) copy the Content; (B) modify or create derivative works based on the Content; (C) decompile, disassemble, or reverse engineer the Content in whole or in part; (D) defeat, disable, or circumvent any protection mechanism related to the Content; (E) sell, license, sublicense, assign, lease, rent, distribute, disclose, permit access to, divulge, or otherwise transfer to any third party, whether for profit or without charge, by merger, operation of law, or otherwise, any portion of the Content, or, in particular, without limiting the generality of the foregoing, distribute the Content on any media, make the Content accessible to the public or third parties, whether over networks, electronic bulletin boards, websites, or otherwise, or allow any third party to use the Content; (F) publish or otherwise communicate any review of, or information about, the performance of the Content to any third party without the prior written consent of UPTODATE; (G) export, re-export, download, or otherwise use the Content in violation of any laws or regulations, including U.S. Department of Commerce Export Administration regulations and other applicable laws; or (H) use the Content in connection with life support systems, human implantation, medical devices, or any application where failure or malfunction could lead to possible loss of life or catastrophic property damage. Any attempt to do any of the foregoing is a violation of the rights of UPTODATE and any of its licensors of the Content. To the extent that components of the Content are provided as part of a bundle, they may not be separated from the bundle and distributed as standalone applications.
5. Website. Your subscription may include access to a UPTODATE website or Content may otherwise be accessed via website (collectively, the “Website”). YOU may not use the facilities and/or services of the Website to publish or distribute any information (including software or other content) which is illegal, which violates or infringes upon the rights of any other person, which would be abusive, profane, pornographic, or sexually offensive to an average person, or which contains errors. YOU may not use the Website to publish or distribute any advertising, promotional material, or solicitation for any goods or services. A user who enters material into any place so permitted on a Website is responsible for the content of that material. UPTODATE has no responsibility for the content of any messages or information posted by users, or for the content of information of third parties, even if accessed through the Website. UPTODATE has the right, which it may or may not exercise, in its sole discretion, to review, edit or delete material it deems to be illegal, offensive, or otherwise inappropriate. UPTODATE has the right to use all material entered onto the Website (other than third-party material transmitted through private electronic mail) in any of UPTODATE's print or electronic publications. UPTODATE provides the Website from offices in the United States of America. UPTODATE makes no representation that the Content is appropriate or available for use in other locations. Those who access the Website from other locations do so on their own initiative and are responsible for compliance with applicable local laws.
6. Protection and Security. YOU shall take all reasonable steps to ensure that no unauthorized person shall have access to the Content. YOU shall not sell, license, sublicense, assign, lease, rent, distribute, disclose, permit access to, divulge, or otherwise transfer to any third party the username and password established during registration or provided to YOU. YOU understand that provision of the username and password may be required prior to each use of the Content. Upon learning of any unauthorized possession or use of or access to the Content, YOU will notify UPTODATE, will promptly furnish details of such occurrence, will assist in preventing any recurrence thereof, and will cooperate fully in any litigation or other proceedings undertaken to protect UPTODATE's rights. By entering into this AGREEMENT and to the extent permitted under applicable law, UPTODATE may store the information YOU provide as part of the registration process and collect information regarding queries submitted through the Content and any other uses of the Content by YOU.
7. Subscription Term. YOU have obtained the right to use and access the Content for the subscription period for which your Institution has agreed to pay subscription fees. At the end of this period, your license and your associated rights, such as technical support, will expire automatically, unless your Institution has renewed your subscription on UPTODATE’s then-current terms. UPTODATE may embed technology in the Content causing them to become inaccessible after your subscription period. The AGREEMENT and your license to use the Content will also terminate if YOU fail to comply with any term or condition in this AGREEMENT. Upon the termination of this AGREEMENT, YOU shall cease all use of the Content and destroy/delete all copies, full or partial, of the Content. In addition to any other provision of this AGREEMENT that by its terms survives expiration or termination of this AGREEMENT, Sections 3 - 13 of this AGREEMENT shall survive in full force and effect following expiration or termination of this AGREEMENT.
8. Limited Rights Notice. Any access to the Content provided under contract to the U.S. Government is provided with limited rights. The Content consist of data, as defined in 48 CFR 27.401 or 48 CFR 27.404-2(a), as applicable, and restricted computer software as defined in 48 CFR 27.401. The Content may be reproduced and used by the U.S. Government, provided that they will not be used for or in connection with manufacturing and will not be disclosed outside of the U.S. Government or to any U.S. Government contractor, without the prior express written permission of UPTODATE.
9. Use of Professional Judgment.
(A) The information contained in Medi-Span Price Rx is intended to provide current and historical drug product pricing, analysis of previous price change patterns, and generic and therapeutic comparisons of drug sets as defined by the user. This information is advisory only and is not intended, nor should it be used, to replace sound clinical judgment or independent, informed purchasing decisions. YOU acknowledge that UPTODATE has no way to verify that YOU have the knowledge and training necessary to property and effectively use the Content. Use of data obtained from Medi-Span Price Rx is at the sole risk of the user.
(B) UPTODATE is not engaged in rendering medical, legal, pharmaceutical, purchasing, or other professional services. If expert assistance is required, the services of a competent professional person should be sought.
(C) The Content is intended to serve as a quick access, concise initial reference and NOT as a complete reference source. The Content does NOT include information concerning every health condition, therapeutic agent, laboratory test, or diagnostic procedure available. YOU agree that UPTODATE provides no medical, pharmaceutical, or other professional advice or patient services in connection with this AGREEMENT or as part of or as a result of the provision of the Content. YOU understand that UPTODATE has no ability to verify patients’ understandings of their health conditions or their medications.
(D) The Content is clinically oriented, and intended to be used only by YOU and only if YOU are: (i) a researcher who will not use the information for medical diagnosis or treatment; (ii) a physician, nurse or other healthcare professional with an active license; or (iii) a student pursuing an education in a health care discipline under the supervision of licensed healthcare professionals. As applicable, YOU will rely on Your own discretion, experience and judgment in medical diagnosis and treatment, including without limitation, determining the correctness, completeness, timeliness, and suitability of the Content for individual patients. You understand that the professional duty to a patient in the provision of healthcare services (including the dispensing of drug prescriptions, provision of drug information, substitution of one drug product for another, availability of generic substitutable alternative drug products, and answering questions a patient may have) lies solely with the healthcare professionals providing direct patient care or pharmacy services. You agree that the medical and related content supplied by UPTODATE and its respective licensors and made available within the Content: (1) is not a substitute for verbal medication counseling or physical demonstration of an administration technique for a patient or caregiver by a healthcare professional; (2) may be confusing to certain patients or caregivers when not interpreted by a healthcare professional; and (3) is designed strictly to support the verbal information transfer by healthcare professionals and to serve as a non-comprehensive take home reference source for patients or caregivers.
(E) Standards and practices in medicine change as new data become available, and as applicable YOU should consult a variety of sources and not rely solely on the Content to provide information potentially relevant to patient care decisions or counseling. You must also regularly review manufacturer published product information regarding prescription drugs for potential changes in usage, dosing, contraindications, interactions, and adverse effects.
10. DISCLAIMER OF WARRANTIES.
(A) YOUR USE OF THE CONTENT AND THE SERVERS IS AT YOUR SOLE RISK. UPTODATE MAKES NO GUARANTEES OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF OR RESULTS TO BE OBTAINED FROM ACCESSING AND USING THE CONTENT. THE CONTENT IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND THE SERVERS ARE PROVIDED "AS IS" AND AS AVAILABLE, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. NEITHER UPTODATE, NOR ANY OF ITS AFFILIATES OR LICENSORS SHALL BE LIABLE TO ANY USER OR ANYONE ELSE FOR ANY INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE, IN THE SERVERS OR THE DATA IN THE CONTENT HEREIN OR FOR ANY DAMAGES RESULTING THEREFROM.
(B) UPTODATE DOES NOT DIRECTLY OR INDIRECTLY PRACTICE MEDICINE OR DISPENSE MEDICAL SERVICES AND ASSUMES NO LIABILITY FOR THE CONTENT. YOU ASSUME FULL RESPONSIBILITY FOR THE APPROPRIATE USE OF MEDICAL INFORMATION CONTAINED IN THE CONTENT.
(C) UPTODATE DOES NOT WARRANT THAT THE CONTENT OR THE PERFORMANCE OF THE SERVERS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE CONTENT OR THE SERVERS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE CONTENT OR IN THE PERFORMANCE OF THE SERVERS WILL BE CORRECTED.
(D) UPTODATE DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE CONTENT (INCLUDING THE RELATED DOCUMENTATION) OR THE SERVERS IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. SHOULD THE CONTENT PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
(E) UPTODATE EXPRESSLY DISCLAIMS ANY WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT WITH RESPECT TO THE CONTENT OR THE SERVERS.
(F) THE CONTENT MAY BE PROVIDED WITH THIRD PARTY PLUG-INS OR OTHER THIRD-PARTY SOFTWARE OR CONTENT, OR THE CONTENT MAY BE PROVIDED AS A PLUG-IN FOR, OR OTHERWISE IN ASSOCIATION WITH, THIRD PARTY SOFTWARE. USE OF ANY SUCH THIRD-PARTY SOFTWARE/CONTENT WILL BE GOVERNED BY THE APPLICABLE LICENSE AGREEMENT, IF ANY, WITH SUCH THIRD PARTY. UPTODATE IS NOT RESPONSIBLE FOR ANY THIRD-PARTY SOFTWARE/CONTENT AND WILL HAVE NO LIABILITY OF ANY KIND FOR YOUR USE OF SUCH THIRD-PARTY SOFTWARE/CONTENT AND MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO SUCH THIRD-PARTY SOFTWARE/CONTENT.
(G) NO SALESPERSON OR OTHER REPRESENTATIVE OF ANY PARTY INVOLVED IN THE DISTRIBUTION OF THE CONTENT IS AUTHORIZED TO MAKE ANY WARRANTIES WITH RESPECT TO THE CONTENT OR THE SERVERS BEYOND THOSE CONTAINED IN THIS AGREEMENT. ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES, SHALL NOT BE RELIED UPON BY YOU, AND ARE NOT A PART OF THIS AGREEMENT.
(H) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MIGHT NOT APPLY TO YOU, AND YOU MAY HAVE OTHER LEGAL RIGHTS RELATED TO THIS AGREEMENT THAT MAY VARY FROM JURISDICTION TO JURISDICTION.
11. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL UPTODATE, ITS AFFILIATES OR ITS LICENSORS OR ANY OTHER PARTY INVOLVED IN THE CREATION, PRODUCTION, PROMOTION, OR MARKETING OF THE CONTENT OR THE SERVERS BE LIABLE TO YOU OR ANY OTHER PARTY FOR (I) ANY SPECIAL, INDIRECT, INCIDENTAL, RELIANCE, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES; OR (II) FOR ANY OTHER LIABILITIES ARISING FROM ANY DAMAGES, FINES, COSTS OR EXPENSES, INCLUDING THOSE RELATING TO LOSS, UNAVAILABILITY, CORRUPTION, DISCLOSURE OR MISUSE OF DATA (INCLUDING THAT RELATING TO OR ARISING FROM A PERSONAL DATA BREACH) OR LOSS OF PROFITS, OR FOR INABILITY TO USE THE CONTENT, IN ALL CASES, TO ANY PARTY, EVEN IF UPTODATE, ITS AFFILIATES OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FINES, COSTS, EXPENSES AND OTHER LIABILITIES, OR the same are Reasonably foreseeable. IN NO EVENT SHALL UPTODATE’S, ITS AFFILIATES’ OR ITS LICENSORS’ LIABILITY FOR ANY DAMAGES OR LOSS TO YOU AND/OR ANY OTHER PARTY IN THE AGGREGATE EXCEED THE FEES PAID TO UPTODATE FOR YOUR USE OF THE CONTENT HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
13. GENERAL: If any provision of this AGREEMENT is determined to be invalid or unenforceable under any applicable law, it shall be deemed omitted and the remaining provisions shall continue in full force and effect. This AGREEMENT may be modified only in writing authorized by UPTODATE. UPTODATE's waiver of any right shall not constitute a waiver of that or any other right in the future. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its principles of conflicts of law or the United Nations Convention on Contracts for the International Sale of Goods. Each party submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York, or in any court of the State of New York sitting in Manhattan. Each party waives, to the fullest extent permitted by law, (a) any objection which it may now or later have to the laying of venue or any action or proceeding arising out of or relating to this AGREEMENT brought in the United States District Court for the Southern District of New York, or in any court of the State of New York sitting in Manhattan; and (b) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum. The PARTIES WAIVE TRIAL BY JURY IN CONNECTION WITH ANY CLAIM, ACTION OR SUITE ASSERTED, BROUGHT OR ARISING UNDER THIS AGREEMENT. This AGREEMENT constitutes the entire understanding between the parties with respect to the subject matter hereof, and all prior agreements, representations, statements, and undertakings, oral or written, are hereby expressly superseded and canceled.
Should YOU have any questions regarding this AGREEMENT, YOU may contact UPTODATE at the email address or telephone numbers set forth below.
Telephone: (855) 633-0577