This limited use license agreement states the terms and conditions under which New Medicine, Inc. ("NMI") licenses __________________________, located at
to use New Medicine’s Oncology KnowledgeBASE ("nmOK") web site (http://www.oncologyknowledgebase.com; ISSN 1520-9539) as a Subscriber and its Authorized Users (collectively, "Subscriber").
Authorized Users include Subscriber employees located at the licensee’s facilities.
1. Subscription Period
Subscriber is granted a nonexclusive; nontransferable, limited license to access and use for research purposes the materials and online services of the Oncology KnowledgeBASE ("nmOK ") web site. This license includes:
- The right to electronically display nm|OK to no more than one person at a time
- The right to print or download limited portions of the nm|OK which are the results of discrete searches, primarily for one person's exclusive use.
An Authorized User may use nmOK during the subscription period for personal, academic, business, educational, research, and professional practice purposes only.
2. Copyright and Limited Use License
By accepting this license, Subscriber agrees not to do any of the following acts without the express written consent of NMI:
- permit a password to be used by any person other than an Authorized User
- sublicense an Authorized User’s right to access
- transfer or give access to nmOK to any other person (see Section 3)
- remove the copyright notice or other notices contained in nmOK
- publish or otherwise use nmOK for other than the purposes stated in this agreement or in any manner that infringes on the copyrights or proprietary interests in nmOK
- take any other action which would violate the purposes and conditions for which this license is granted
Under no circumstance are passwords to be given to individuals outside the Subscriber’s company or organization, i.e. consultants, etc.
nmOK belongs to NMI or to third party suppliers of the nmOK, and Subscriber is not acquiring any proprietary interest in the nmOK.
3. Authorized Access via Password
Passwords are assigned to specific individuals and are not under any circumstance to be given to any one else, within the company or outside. However, an Authorized User may use the password to access the site from other locations such as home or when traveling.
If an Authorized User no longer has use for the password for any reason, it can be transferred to another company executive at the same geographical location for the time remaining in the subscription period at no cost. However, NMI must be informed of the need for a transfer and reassign the new Authorized User a unique password. The new Authorized User is not to access nmOK using the previous Authorized User’s password.
Distinct geographical locations of the Subscriber are treated as new clients. However, a discount is offered for access from multiple locations of the same company that are billed centrally and run concurrently. By special arrangement, access may be issued to a central IP address.
For security reasons NMI retains the right to change passwords on a regular or emergency basis. The Subscriber will be notified in the event the password requires modification.
In the event of termination by the Subscriber, no pro-rated fees are refundable for the remaining period of the subscription. NMI may terminate this Agreement immediately for violations of Section 13 or Section 2. Notice of termination by NMI will be delivered as described in Section 14 of this Agreement.
5. Limited Warranty and Limitation of Liability
NMI represents and warrants that it has the right and authority to make nmOK available pursuant to this agreement. NMI reserves the right to add or remove nmOK features without notice.
NMOK is licensed on an "as is" and "as available" basis. There are no other warranties, express or implied, including, but not limited to: Implied Warranties of Merchantability, Fitness for a particular purpose, warranties of design or noninfringement, and all such Warranties are expressly and specifically disclaimed. NMI does not warrant that subscriber’s or any authorized user’s use of NmOK will be uninterrupted or error free, or that the results obtained will be useful or will satisfy subscriber’s or any authorized user’s requirements. NMI assumes no responsibility or liability arising from any error or omission from NmOK.
NMI shall not be liable for any damage or loss of any kind arising from or resulting from subscriber’s possession or use of nmOK (including data loss or corruption), regardless of whether that liability is based in Tort, Contract or Otherwise. If the foregoing Limitation is held to be unenforceable, or in any other case, NMI’S maximum liability to Subscriber shall not exceed the amount of the license fees that were paid for this license. NMI shall in no event be liable for any indirect or consequential damages or lost profits or revenues, even if NMI has been advised of that damage. The remedies available to Subscriber against NMI under this agreement are exclusive. Because some states do not allow the limitation or exclusion of implied warranties or liability for incidental or consequential damages, the limitations or exclusions described above may not apply to subscriber.
NMI intends to take prudent measures to screen files for infection by viruses, worms, Trojan horses or other code manifesting contaminating or destructive properties before making such files available for downloading. NMI cannot and does not guarantee or warrant that such files will be free of such properties. nmOK is provided on an "as is, as available" basis. Further, NMI does not warrant that the functions or services performed by nmOK will be uninterrupted or error free, but will take reasonable steps to correct defects in nmOK.
nmOK is intended to provide current and accurate information in the field of oncology and are designed to help provide such information for personal, academic, educational, research and professional purposes only. nmOK is distributed with the understanding that NMI does not render any medical or other professional service. Persons using nmOK in dealing with a specific medical matter or condition should also review other sources of information.
6. Governing Law
This agreement is to be governed by and interpreted in accordance with the laws of the State of California. If any provision of the agreement in any way contravenes the laws of the state or jurisdiction in which this agreement is to be performed and that provision is declared by final adjudication to be illegal or contrary to public policy, it shall not affect the validity of any other terms or provisions of this agreement.
NMI may suspend or discontinue providing access to nmOK to any Authorized User without notice and pursue any other remedy legally available to it if the Subscriber fails to comply with any of its obligations under this agreement.
The failure of NMI or any third party supplier of nmOK to enforce any provision of this agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
9. Whole Agreement
This agreement constitutes the entire agreement between Subscriber and NMI. Any modification of this agreement must be made in writing and signed by NMI.
10. Subscription Period
A unique password is assigned to the primary Authorized User of the nmOK database to be used exclusively by that person. The current annual fee for the primary database user is $3,490.
Additional users are furnished with their own passwords and are subject to all provisions of this agreement. Additional passwords may then be assigned to other individuals in that same geographical location for an additional $340 per Concurrent Authorized User per year. All access must run concurrently.
The Subscriber’s password is activated at the time of subscription and will automatically expire one year from that date.
11. Payment Terms
The subscription fee is payable annually in advance and is nonrefundable.
All fees payable under this agreement are exclusive of any state or local sales, use, or similar taxes. If any such taxes are applicable, they shall be charged to Subscriber’s account.
12. Service Changes
NMI reserves the right to adjust the renewal subscription fee for any renewal period upon 30 day written notice to Subscriber. Any price increase shall become effective at the end of the current subscription period.
NMI will alert the Subscriber as to the pending expiration of the subscription period. In order to renew the subscription to nmOK, the Subscriber must submit payment before the expiration date. NMI will discontinue Subscriber’s access to the database in the case of nonpayment. If the subscription is allowed to lapse,
Due to the cumulative nature of the materials in the Oncology KnowledgeBASE
13. Subscriber Obligations
Subscriber may not resell, assign, or transfer a subscription, use of service, or any content. Subscriber agrees to pay all subscription fees.
The Subscriber is responsible for:
- selecting, providing, and maintaining all necessary telecommunication and computer equipment, services, and background software, and resolving any equipment or software incompatibilities that may arise between its computer systems for software that may be necessary to access nmOK;
- controlling the security of any Designated Passwords by reasonable means so that unauthorized parties are not able to access nmOK;
- establishing policies that create an environment in which Authorized Users make appropriate use of nmOK; and
- Notifying NMI immediately when they become aware of any unauthorized access to or other misuse of nmOK or designated passwords.
NMI may deliver notices regarding access to nmOK by electronic mail, on the Internet, by telephone, or by written communication to the Subscriber’s Account Manager address. Subscribers may give notice to NMI by email or by letter sent by fax to (949) 830-0887 or by mail to New Medicine, Inc., P.O. Box 909, Lake Forest, CA 92609.
15. General Provisions
Any provisions in any memorandum received by NMI in connection with the Service which are inconsistent with, or add to, the provisions of this Agreement is void. Neither party’s course of conduct or trade practice will modify the terms of this Agreement. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, all other terms and conditions shall remain in full force and effect.
THE CONTENTS OF THIS DOCUMENT ARE AGREED TO AND ACCEPTED BY:
New Medicine, Inc.