UpToDate, LLC ("UTD") with an office at 525 Junction Road, Suite 5000, Madison, WI 53717 provides the Service (defined below) to Customer (defined below) on a subscription basis. By signing a Purchase Agreement (defined below) for Customer's subscription for the Service, or by using the Service, Customer hereby acknowledges and accepts these Terms and Conditions of Use and agrees that these Terms and Conditions of Use are incorporated by reference into the applicable Purchase Agreement and, together with such Purchase Agreement, govern the provision and use of the Service and are binding on UTD and Customer. In the event of a conflict between the Purchase Agreement and these Terms and Conditions of Use, these Terms and Conditions of Use shall control. UTD and Customer herein may each be referred to as a "Party" or together the "Parties".
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Definitions.
1.1 "Affiliate" means any other entity which, whether now or in the future, directly or indirectly, is controlled by a Party or is under common control with a Party, where control means the ability to direct the affairs of an entity through ownership of voting interest, contract rights or otherwise.
1.2 "Agreement" means these Terms and Conditions of Use together with the Purchase Agreement entered into by and between Customer and UTD in which these Terms and Conditions of Use are incorporated by reference, together with any exhibits, statements of work, or subsequent addenda or amendments hereto or thereto that are attached to or that reference the Purchase Agreement or these Terms and Conditions of Use.
1.3 "Applications" means the specific product applications and related Content made available by UTD from time to time for subscription by Customer for use through the Service, as set forth in the Purchase Agreement or subsequent Purchase Agreement Addenda. Applications include enhancements and updates to the Applications released during the subscription term.
1.4 "Content" means (a) clinical or business rules composed of criteria, parameters, operators and logic, used to generate alerts and notifications through the Service; (b) clinical decision support guidance available through the Service in the form of alerts, suggested actions, narratives, lists, tables, charts, and links; (c) training modules and competencies; (d) policies & procedures; (e) graphics, text, logos, trademarks, trade names, product names, user interface, and the overall look and feel of the Applications, and (f) third party software and third party drug mapping and healthcare terminology data.
1.5 "Customer" means the subscriber for use of the Service, as identified in the applicable Purchase Agreements.
1.6 "Documentation" means applicable user manuals available online through the Service to Users as updated by UTD from time to time.
1.7 "Effective Date" means the date of Customer signature on the Purchase Agreement.
1.8 "Licensed Sites" means Customer's facility locations in the Territory, only, that are identified on the applicable Purchase Agreement.
1.9 "Purchase Agreement" means any (a) contract document (whether identified as a purchase agreement, order form, or renewal agreement) in which these Terms and Conditions of Use are incorporated by reference, identifying purchase terms specific to Customer for the Service, including but not limited to the Applications selected, the subscription term and the fees and (b) addenda to Purchase Agreements.
1.10 "Service" means an online service hosted by UTD. The Service shall consist of one or more product Applications selected and subscribed to by Customer as identified in a Purchase Agreement and as contemplated by Section 2.3 below.
1.11 "Subscription Term Start Date" means the date designated as such on a Purchase Agreement, or if not specified, the Effective Date
1.12 "Territory" means the geographical location within which the Services and Applications may be used by Users for and on behalf of the Licensed Sites, as set forth in a Purchase Agreement.
1.13 "Third Party Providers" means third party licensors or service providers that may provide certain portions of the Service.
1.14 "Users" means Customer's (a) employees, and/or (b) clinicians, consultants, contractors or agents performing services to or on behalf of the Customer. Users must work for a Licensed Site, access the Services from within the Territory via a Licensed Site, and be authorized by Customer to use the Service, including having been supplied user identifications and passwords by Customer.
2. Grant of Rights.
2.1 Rights to Use and Limitations. Subject to the terms and conditions contained herein, during the term of this Agreement, the Customer shall have a non-exclusive, revocable, non-transferable, non-sublicenseable, limited right to use the Service at the Licensed Sites for the subscription term, as applicable, solely for its internal business purposes and for no other purposes. All rights to use the Service, Applications and Content are expressly stated herein, and UTD reserves all other rights. There is no implied right to use the Service, Applications or Content. Any breach of this Agreement by any User shall constitute a breach by the Customer. Customer and its Users shall not (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or use the Service to provide services for third parties; (ii) include the Content in other software or databases, or hyperlink, index, or otherwise utilize the Content or Service by automated software means, including: search engines, robots, spiders, crawlers, data mining tools, or any other software that aggregates access to, the Service or Content; (iii) combine the Service or Content with other content in knowledge banks or through similar technologies; (iv), modify, translate, reverse engineer, disassemble, decompile, create derivative works of, copy, distribute, publish, publicly display, transmit or download for storage the Service, any Applications, or any Content obtained through the Service; (v) share, distribute, publish, or disclose any Content derived or obtained from the Service except within Customer's Licensed Sites to the extent necessary to use the Service; (vi) use the Service or any Content in any manner that violates any applicable law; (vii) subscribe for or use the Service with the intent to build a competitive product.
2.2 User Accounts. Users authorized by Customer may only use the Service. Customer shall register each User with UTD. UTD has the right to suspend any User's account in its sole discretion if it reasonably suspects the User information is false or not current or for use of the Service in violation of this Agreement. User accounts cannot be "shared" or used by more than one individual.
2.3 Applications. Customer and its Affiliates may subscribe for additional Applications under this Agreement subject to the payment of the applicable fees and executing a Purchase Agreement for such Applications. Each Affiliate named in a Purchase Agreement agrees to be bound by the terms and conditions of this Agreement. Customer and named Affiliates shall be jointly and severally liable for the acts of Affiliates. UTD reserves the right to make changes to any Application at any time that it deems necessary or useful and such changes may include the addition or removal of features.
3. Responsibilities.
3.1 Fees. In consideration for the right to use the Service, Customer agrees to pay UTD the fees set forth in the Purchase Agreement(s). All fees quoted and payments made herein shall be in US Dollars. Payment terms are net 30 days from the date of the invoice. The initial invoice will be sent to Customer promptly upon full execution of the Agreement. Thereafter, UTD will invoice Customer pursuant to the payment terms set forth in the Purchase Agreement(s). Any amounts owed by Customer that are not paid when due shall be subject to late fees at a rate of the lesser of: (a) 1.5% per month, (b) the highest rate permissible under applicable law. Customer's obligation to pay fees and all other obligations herein are absolute and unconditional and are not subject to any abatement, set-off, defense or counterclaim for any reason.
3.2 Taxes. Customer shall be responsible for all taxes, duties, fees and other governmental charges, including sales taxes, use taxes, withholding, excise, value-added and any other similar taxes imposed by any federal, provincial/state or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon UTD's net income. When UTD has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Customer. If Customer is tax exempt, a valid tax exemption certificate must be provided to UTD prior to or upon execution of the Agreement. If Customer loses tax exempt status, it shall pay any taxes due as part of any applicable renewal or payment. Customer shall promptly notify UTD if its tax status changes.
3.3 Customer Duties. The Customer agrees to and acknowledges the following regarding its use of the Service: (i) Customer is fully responsible for all activities that occur under its account, whether or not such activity is by Customer's Users and/or Affiliates; (ii) Customer is responsible for maintaining the confidentiality of its Users' passwords and usernames; and (iii) Customer shall immediately notify UTD of any unauthorized use of its account or any other breach of security that is known or suspected by Customer.
3.4 Minimum Software and Hardware Specifications. The Customer shall provide and maintain, at its sole cost and expense, all computers and other equipment and services (including communication lines and Internet access service) used by Customer to access the Service. UTD shall provide to Customer during implementation a description of the minimum hardware and software requirements that will be necessary for customer to use the Service on the Subscription Term Start Date, but Customer understands and agrees that the minimum requirements will likely change over time. UTD may provide updated minimum hardware and software requirements to Customer periodically during the term of the Agreement.
3.5. Professional Services. Customer may request UTD to provide training, consulting, and/or implementation services (collectively known as "Professional Services") in support of Customer's subscription to use the Service for an additional fee. UTD provides Professional Services at its discretion at the then current rates charged for such Professional Services plus reasonable travel and other out of pocket expenses. Prior to delivery of any Professional Services by UTD, Customer shall execute a Purchase Agreement or statement of work ("Statement of Work" or "SOW") and governed by the terms of this Agreement. If any Statement of Work is terminated in accordance with the termination rights in each SOW, UTD shall be entitled to all fees for the Professional Services performed prior to termination. Termination of a Statement of Work shall not affect the validity and enforceability of this Agreement.
4. Termination.
4.1 Term. The term of this Agreement shall begin on the Subscription Term Start Date and shall continue for the subscription term as set forth in the applicable Purchase Agreement, unless sooner terminated in accordance with the provisions of this Agreement.
4.2 Termination by Customer. If UTD is in material breach of this Agreement and fails to remedy said breach within thirty (30) days of written notification from Customer of UTD's breach, Customer may terminate this Agreement for material breach with respect to the affected Application(s) or, if Customer does not have a subscription for any other Applications, the entire Agreement.
4.3 Termination by UTD. This Agreement may be terminated by UTD prior to its expiration thereof if any of the following events occur: (i) Customer is in material breach of any term, condition, obligation or provision of this Agreement, which breach is not cured within thirty (30) days of written notice of such breach, (ii) Customer develops, distributes, or licenses software or Content for sale to third parties that materially competes with the Service, or (iii) in the event UTD plans to or is no longer supporting an Application generally for its customers, six (6) months after giving Customer written notice of the end of support for that Application, UTD may terminate the Agreement with respect to that Application, or if Customer does not have a subscription for any other Applications, the entire Agreement.
4.4 Termination by Either Party. Either Party may terminate this Agreement if the other party (i) files for bankruptcy relief under chapter 7 or 11 of Title 11 of the United States Code; or (ii) makes a general assignment for the benefit of creditors, and either of those circumstances remains for a period of thirty (30) days.
4.5 Suspension by UTD. In addition to UTD's right to terminate for breach, in the event of a breach of this Agreement by Customer, including but not limited to failure to timely make payments under this Agreement or unauthorized use of the Service, Application or Content, UTD may, in its sole discretion and without limiting its other rights or remedies, suspend Customer's access to the Service.