END USER LICENSE AGREEMENT
NOTICE: ANY ACCESS TO AND USE OF THIS WEBSITE AND ANY ONLINE APPLICATIONS, SOFTWARE OR CONTENT AVAILABLE THROUGH THIS WEBSITE IS SUBJECT TO AND WILL CONSTITUTE YOUR ACCEPTANCE OF THIS END USER LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THIS END USER LICENSE AGREEMENT, YOU ARE NOT PERMITTED TO ACCESS OR USE THIS WEBSITE OR ANY ONLINE APPLICATIONS, SOFTWARE OR CONTENT AVAILABLE THROUGH THIS WEBSITE.
This End User License Agreement (the "Agreement") by and between you ("You") and Wolters Kluwer ("WK") governs Your access to and use of (i) the medical, nursing, drug information and other related content, including without limitation, any concepts, data, recommendations, instructions, alternatives, methods, techniques, procedures or other information supplied by WK (the "Content"), (ii) the online application software and platforms (including this website) through which such Content is made available to You, and (iii) any related services, software, or other solutions provided by WK (collectively (i), (ii) and (iii), the "Online Service(s)"). By clicking to accept this Agreement, You acknowledge that You have read, understood and agree to be bound by this Agreement, and You agree to comply with all applicable laws and regulations in Your use of the Online Service(s) licensed hereunder, including U.S. export and re-export control laws and regulations. The Online Service(s), including all Content incorporated therein, are protected by law, including, but not limited to, United States copyright law and international treaties.
1. License and Access to the Online Service(s).
1.1. User Type. Full access to the Online Service(s) is available only to (i) individuals for whom access has been purchased or otherwise procured by an organization or institution (the "Subscriber") in an applicable institutional subscription agreement and any associated order forms (the "Subscription Agreement" and each such individual, an "Institutional User"), or (ii) individuals who purchase or otherwise obtain access directly from WK or one of its affiliates or distributors on their own behalf (each, an "Individual User").
1.2. Institutional and Individual User License. For Online Service(s) licensed a subscription term basis, WK grants You the non-transferable, nonexclusive, limited license to access and use the applicable Online Service(s) during the applicable subscription term for the Permitted Use (as defined below), subject to the terms and conditions of this Agreement. For Online Service(s) licensed on a perpetual basis, WK grants You the non-transferable, nonexclusive, limited, perpetual (except as set forth herein) license to access and use the applicable Online Service(s) for the Permitted Use, subject to the terms and conditions of this Agreement.
1.3. Trial User License. WK may, in its sole discretion, grant individuals access to certain Online Service(s) for a limited preview or trial period in order for such individuals to preview and evaluate certain Online Service(s) before the purchase and/or adoption of the applicable Online Service(s) ("Trial Access" and each such individual a "Trial User"). If You received Trial Access to any Online Service(s), then WK grants You the non-transferable, nonexclusive, limited license to access and use the applicable Online Service(s) during the specified trial period on a single‐user computer for the sole purpose of evaluating the applicable Online Service(s), subject to the terms and conditions of this Agreement. If You are granted Trial Access and decide not to licensee access to the Online Service(s) at the end of such period designated by WK for Your Trial Access, Your authorization to access and to use the applicable Online Service(s) automatically terminates and You must immediately destroy any downloaded or printed materials and discontinue use of any hyperlinks to the applicable Online Service(s).
1.4. Access. You agree not to give or make available Your username, password, access code or other authentication method (including without limitation, Your email address or Internet Protocol address, if applicable) used to access Your account to any unauthorized individuals. You remain responsible for all access to the Online Service(s) via Your username, password, access code, or other authentication method, even if not authorized by You. If You believe that Your username, password, access code, or other authentication method used to access Your account has been lost or stolen or that an unauthorized person has or may attempt to use the Online Service(s), You must immediately notify WK at firstname.lastname@example.org or via telephone at 800-468-1128 during normal business hours (Monday through Friday, 8:30 a.m. - 7:00 p.m. EST). Access code(s), password(s) or other authentication are valid only in the country in which issued.
1.5. Third Party Material. Additional terms and conditions may apply to Your use of any Content and software supplied or licensed to WK by third parties and made available as part of the Online Service(s) ("Third Party Material"). Such additional terms and conditions, if any, shall be made available to You. In the event of changes in the terms applicable to such material, WK reserves the right to terminate access to such material, remove such material from the Online Service(s), modify the Third Party Material accessible hereunder, or add additional terms and conditions applicable to such material, in each case effective immediately upon notice being made reasonably available to You. In the event of any conflict between the terms hereof and the terms governing the Third Party Material, the terms governing the Third Party Material shall control.
1.6. Updates and Discontinuation. WK may update, modify or replace the Online Service(s), including any Content available therein, from time to time. WK reserves the right to discontinue offering access to an Online Service, or a portion thereof, through any or all platform(s) at any time for any reason. WK will use commercially reasonable efforts to provide at least thirty (30) days' notice of any such discontinuation.
1.7. Termination of Access. If You fail to comply in any way with this Agreement, this Agreement and Your authorization to access and to use the Online Service(s) will automatically terminate. If You are an Institutional User, Your access to the Online Service(s) is subject to Your applicable Subscriber's compliance with its applicable Subscription Agreement and any termination of such Subscription Agreement will automatically terminate this Agreement and Your authorization to access and to use the Online Service(s). Upon any termination or, if applicable, expiration, of this Agreement, You must immediately destroy any downloaded or printed Content and discontinue use of the Online Service(s).
2. Proprietary Rights and Use of the Online Service(s).
2.1. Proprietary Rights. No provision of this Agreement conveys any ownership interest to You in or to any of the Online Service(s) or any Content therein, including site design, text, graphics, interfaces, and the selection and arrangements thereof, in whole or in part, and, except for the express licenses herein, all intellectual property rights, including copyright, patent, trademark and trade secret, are retained by WK, its affiliates, licensors, and collaborators, all rights reserved. The trademarks, service marks, trade names, and logos, including, but not limited to, page headers, custom graphics, button icons, and scripts (collectively, the "Trademarks") used and displayed on the Online Service(s) are registered and unregistered trademarks, service marks and/or trade dress of WK, its affiliates, licensors, and collaborators, and You many not copy, imitate or use the Trademarks, in whole or in part, for any purpose. No license or other right to use any Trademark used or displayed on the Online Service(s) is granted to You.
2.2. Additional Terms. Your access to and/or use of any current or future Online Service(s) may be subject to and require Your acceptance of additional terms and conditions, including (i) terms and conditions governing access to and use of the applicable platform(s), and (ii) terms and conditions governing use of any Third Party Material that may be incorporated into the Online Service(s), as made available by WK from time to time, in electronic or print form.
2.3. Enforcement of Rights. You hereby grant to WK, its affiliates, licensors, and collaborators the right to enforce or assert on their own behalf the provisions of this Agreement.
2.4. Permitted Use. As used herein, "Permitted Use" means the limited purposes for which You may use the Online Service(s), as follows:
2.4.1. If You work for a medical service provider, You may use the Online Service(s) in the course of Your professional and related administrative work.
2.4.2. If You (i) work for an academic institution as an instructor, (ii) are accessing the Online Service(s) in connection with Your work for such academic institution and (iii) have adopted the Online Service(s) for use in the course of Your instruction (including by requiring or recommending that Your students purchase or otherwise receive access to the Online Service(s)), then You may:
- Use the Online Service(s) to develop, research, prepare or present coursework to students in Your academic institution;
- Print or download any Content from the Online Service(s) (where WK has made such Content available for printing or downloading) to a storage device under Your exclusive control solely for Your own personal, non-commercial, informational, instructional or scholarly use ("Downloaded Content") provided that You keep intact all copyright and other proprietary notices;
- Share any Downloaded Content with other instructors within Your academic institution for the purposes of discussion with such instructors to prepare and present coursework to students in Your academic institution, provided that such instructors expressly agree not to further share or distribute the Downloaded Content;
- Quote and excerpt from such Downloaded Content (appropriately cited and credited) by electronic cutting and pasting or other means in work product created by You in the regular course of providing instruction to students at Your academic institution; and
- Share any Downloaded Content with students within Your academic institution in Your regular course of providing instruction to such students, provided that such students expressly agree not to further share or distribute the Downloaded Content.
2.4.3. If You are a student enrolled in an academic institution or a student under self-instruction, You may use the Online Service(s) as a reference and/or educational tool and may print or download Content from the Online Service(s) (where WK has made such Content available for printing or downloading) solely for Your own personal, non-commercial, informational or scholarly use, provided that You keep intact all copyright and other proprietary notices.
2.4.4. If You are employed by a library and are accessing the Online Service(s) in order to make such Online Service(s) available to such library's patrons, You may access and make available such Online Service(s) solely on the same number of computers as Your library has licensed for such use.
2.4.5. If You are otherwise employed in the corporate market and have been granted access to the Online Service(s) by Your employer or are otherwise accessing the Online Service(s) on behalf of Your employer, You may use the Online Service(s) solely for Your employer's internal business purposes.
2.4.6. If none of the above applies, You may access and use the Online Service(s) solely for Your own personal, non-commercial use.
2.5. Restrictions on Use. You shall not (a) use, or permit the use of, the Online Service(s) except in accordance with the terms of this Agreement; (b) download or print in whole or in substantial part the Online Service(s); (c) modify, translate, reverse engineer, decompile, disassemble, create derivative works of, or otherwise attempt to derive or alter any source code of the Online Service(s) or any underlying software; (d) copy or permit the copying of the Online Service(s), other than copying in accordance with the Permitted Use; (e) use the Online Service(s) to provide service bureau, time sharing, or similar services to third parties; (f) distribute, sublicense, sell, assign, transfer, rent, lease, pledge, or encumber the Online Service(s); (g) permit access to the Online Service(s) to any other person; or (h) alter, remove, or otherwise hinder the delivery of any copyright, disclaimer, or other proprietary notice appearing in the Online Service(s). Redistribution of the Online Service(s) for any purpose is strictly prohibited. Any use or attempted use of the Platform, the Online Service(s) or the Content therein other than as specifically authorized herein, without the express prior written permission of the WK is strictly prohibited and will, among other things, terminate this Agreement and all licenses granted herein. Such unauthorized use or attempted use may also violate applicable laws, including without limitation, copyright and trademark laws. Except for the express licenses granted herein, nothing in this Agreement shall be construed as conferring any license to any intellectual property rights, whether by estoppel, implication or otherwise. Upon any termination of Your right to access any particular Online Service(s), You must destroy, as applicable, all copies of any Content from the Online Service(s) for which access was terminated.
3. Additional Obligations.
3.1. Compliance with Laws. You shall comply with all applicable federal, state or provincial, and local laws, rules, and regulations in conjunction with Your access to and use of the Online Service(s) pursuant to this Agreement.
3.2. No Competitive Online Service(s). Under no circumstances shall You use the Online Service(s) or information contained therein or results derived therefrom to develop any product(s) or service(s) which could be competitive with the Online Service(s) or any other product(s) or service(s) provided by WK.
3.3. Security. Any access or attempt to access for any reason areas of the WK computer system or other information thereon is strictly prohibited. You agree that You will not use any robot, spider, other automatic device, or manual process to "screen scrape," monitor, "mine," or copy the Web pages on the Online Service(s) in whole or in part. You will not spam or send unsolicited e-mail to any other user of the Online Service(s) for any reason. You agree that You will not use any device, software, or routine to interfere or attempt to interfere with the proper working of the Online Service(s). You agree that You will not take any action that imposes an unreasonable or disproportionately large load on WK's infrastructure.
4. Links and Content Uploads.
4.1. User Hyperlinks. You are granted a limited, nonexclusive right to create a "hypertext" link to the Online Service(s) for noncommercial purposes, provided that such link is to the home page of the Online Service(s) (or to any other pages of the Online Service(s) as may be expressly permitted by WK) and does not portray WK or any of its products or services in a false, misleading, derogatory, or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is, in the WK's sole opinion, offensive, harassing or otherwise objectionable. This limited right may be revoked at any time for any reason whatsoever. You may not use framing techniques to enclose the Online Service(s) or any WK trademark, logo or trade name or other proprietary information including the images found at the Online Service(s), the content of any text or the layout/design of any page or any form contained on a page.
4.2. External Hyperlinks. The Online Service(s) may also provide links to third party web pages and such links to third party websites on the Online Service(s) are provided solely as a convenience to You. If You use these links, You will leave the Online Service(s). WK has not reviewed these third party websites and does not control and is not responsible for any of these third party websites, their content or their policies, including, without limitation, privacy policies or lack thereof. WK does not endorse or make any representations about third party websites or any information, software or other products or materials found there, or any results that may be obtained from using them. If You decide to access any of the third party websites linked to the Online Service(s), You do so entirely at Your own risk. You acknowledge and agree that WK shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with, the use of or reliance on any such third party websites.
4.3. Ownership of Content Uploads. Certain of the Online Service(s) may provide functionality that allows You to upload content that may include information, text, images, audio, video, and any other content ("Your Content") for the public posting, viewing and sharing of Your Content with others. You retain ownership to Your Content that You submit for inclusion into the Online Service(s). However, by submitting Your Content, You hereby grant WK and its affiliates the worldwide, royalty-free, non-exclusive, sub-licensable and transferable right and license to quote, re-post, publish, use, adapt, translate, archive, store, reproduce, modify, create derivative works from, syndicate, license, print, sublicense, distribute, transmit, broadcast, and otherwise communicate, and publicly display and perform Your Content, or any portion thereof, in any manner or form and in any medium or forum, whether now known or hereafter devised, without notice, payment or attribution of any kind to You or any third party. You grant WK and its affiliates all licenses, consents and clearances to enable WK to use Your Content for such purposes. You waive and agree not to assert any moral or similar rights You may have in Your Content. If the Online Service on which You contribute Your Content permits other users to access and use Your Content as part of the Online Service, then You also grant all other users of the Online Service the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute Your Content on or through the Online Service without further notice, attribution or compensation to You. You may not upload or post any content on the Online Service(s) that infringes the copyright, trademark or other intellectual property rights of a third party nor may You upload any content that violates the law, this Agreement and/or any third party's right of privacy or right of publicity. By posting any of Your Content on the Online Service(s), You represent and warrant that You have the lawful right to distribute and reproduce Your Content. You are solely responsible for creating backup copies of and replacing any of Your Content You post or store on or through the Online Service(s) at Your sole cost and expense.
4.4. Content Upload Restrictions. You are solely responsible for any of Your Content that You submit, post or transmit via the Online Service(s). You may not post or submit any of Your Content that:
- promotes information that You know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
- contains nudity, sexually explicit content, drug use, violence or other offensive subject matter;
- is patently offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or person;
- solicits personal information from anyone under 18 years old or exploits images or the likeness of individuals under 18 years old;
- makes use of offensive language or images;
- includes a photograph of another person that You have posted without that person's consent;
- promotes an illegal or unauthorized copy of another person's copyrighted work;
- promotes any criminal activity or enterprise or provides instructional information about illegal activities;
- involves commercial activities and/or sales without our prior written consent such a contests, sweepstakes, barter, advertising or pyramid schemes or provides a link to any commercial websites (including without limitation, a link to an adult website); or
- solicits passwords or personal identifying information for commercial or unlawful purposes from other users.
This list of prohibitions provides examples and is not complete or exclusive.
4.5. Monitoring of Content Uploads. WK shall have the right, but not the obligation, to reject, refuse to post, or otherwise monitor all Your Content, and may remove or require You to remove any or all Your Content that WK, in its sole discretion, deems to be a violation of this Agreement, or is offensive, inappropriate, illegal or harm or threaten the safety of any person. In addition, WK has the right to remove Your Content if WK has reason to believe that displaying such content may infringe the rights of a third party or subject WK to expense or liability. You acknowledge and agree that WK shall not assume or have any liability for any action or inaction by WK with respect to any Your Content.
4.6. Use of Your Content and Other Information. By entering into this Agreement, You agree that WK may store the information You provided as part of the registration process and use aggregate statistical information about Your usage of the Online Service(s) for any purpose, including commercial use and use in improving and marketing its products and services. In addition, You further agree that WK may share such aggregate statistical information about Your usage of the Online Service(s) with its affiliates, licensors, collaborators, service providers, and other third parties, in WK's sole discretion.
4.7. Commentary. The Online Service(s) may contain areas where You are encouraged to communicate with WK, including, providing commentary, testimonials, and/or additional information concerning the Online Service(s). By communicating with WK on or about the Online Service(s), You grant WK a perpetual, non-exclusive, royalty-free worldwide license to publish Your communications on the Online Service(s), use such commentary in any promotion of the Online Service(s) and to attribute the communications to the name and/or entity associated with such communication. You further represent and warrant that You own all rights to the communication and that such communication does not infringe upon or otherwise violate the rights of any third party. WK has the right, but not the obligation (except as otherwise required by law), not to post or, in the alternative, to remove any communication from the Online Service(s) and/or to remove any user or prevent further communication by any user, at WK's sole discretion, which is defamatory, offensive, or otherwise objectionable, which infringes the rights of any third parties or which fails to comply with this Agreement. Any user who infringes the rights of third parties may be denied access to the Online Service(s) to post information of any kind. You acknowledge and agree that WK may preserve communications and disclose communications if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to any claims that any communication violates the rights of third parties; or (d) protect the rights, property, or personal safety of WK, its users and/or the public.
5. No Warranty; Disclaimer.
5.1. THE ONLINE SERVICE(S) HEREUNDER, INCLUDING ANY CONTENT THEREIN, OR ANY SERVICES PROVIDED IN CONNECTION THEREWITH ARE FURNISHED BY WK AND ACCEPTED BY YOU "AS IS" AND WITHOUT ANY WARRANTY WHATSOEVER. WK MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ONLINE SERVICE(S) HEREUNDER, INCLUDING ANY CONTENT THEREIN, OR ANY SERVICES PROVIDED IN CONNECTION THEREWITH, AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WK DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE ONLINE SERVICE(S), THE CONTENT, OR THE RESULTS DERIVED THEREFROM, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES REGARDING ACCURACY, QUALITY, CORRECTNESS, COMPLETENESS, COMPREHENSIVENESS, CURRENCY, SUITABILITY, SYSTEM AVAILABILITY, COMPATIBILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE). NO WK EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT. IN ADDITION, YOU ACKNOWLEDGE THAT ACCESS TO THE ONLINE SERVICE(S), AND THE CONTENT THEREIN MAY BE SUBJECT TO LIMITATIONS, DELAYS, LATENCY ISSUES AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND THAT WK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
5.2. THE ONLINE SERVICE(S) (INCLUDING THE CONTENT THEREIN) ARE NO SUBSTITUTE FOR INDIVIDUAL PATIENT ASSESSMENT BASED UPON A HEALTHCARE PROFESSIONAL'S EXAMINATION OF EACH PATIENT AND CONSIDERATION OF, AMONG OTHER THINGS, AGE, WEIGHT, GENDER, CURRENT OR PRIOR MEDICAL CONDITIONS, MEDICATION HISTORY, LABORATORY DATA AND OTHER FACTORS UNIQUE TO THE PATIENT. WHILE THE ONLINE SERVICE(S) MAY DESCRIBE VARIOUS BASIC PRINCIPLES OF DIAGNOSIS AND THERAPY, THE ONLINE SERVICE(S) SHOULD BE USED AS GENERAL MEDICAL REFERENCE MATERIALS TO ASSIST THE HEALTHCARE PROFESSIONAL REACH DIAGNOSTIC AND TREATMENT DECISIONS, BEARING IN MIND THAT INDIVIDUAL AND UNIQUE CIRCUMSTANCES MAY LEAD THE YOU TO REACH DECISIONS NOT REPRESENTED IN THE ONLINE SERVICE(S). YOU SHOULD EXERCISE YOUR OWN INDEPENDENT PROFESSIONAL AND CLINICAL JUDGMENT, TAKING INTO ACCOUNT SPECIFIC INFORMATION ABOUT PARTICULAR INDIVIDUAL PATIENTS THAT CANNOT BE ASCERTAINED OR TAKEN INTO ACCOUNT AS A PART OF NECESSARILY GENERIC OR SUMMARY ONLINE SERVICE(S). NO REFERENCED OR SUGGESTED TEST, PROCEDURE OR RESPONSIVE ACTION SHOULD BE DIRECTED OR UNDERTAKEN UNLESS, IN YOUR PROFESSIONAL JUDGMENT, ITS USE IS MEDICALLY APPROPRIATE FOR THE INDIVIDUAL PATIENT IN THE PARTICULAR CIRCUMSTANCES. YOU ARE SOLELY RESPONSIBLE FOR THE USE OF ANY CONTENT CONTAINED IN THE ONLINE SERVICE(S), AND YOU ARE RESPONSIBLE FOR INDEPENDENTLY REACHING ANY MEDICAL JUDGMENT AND FOR ANY RESULTING DIAGNOSIS AND TREATMENTS, NOTWITHSTANDING ANY USE OF THE ONLINE SERVICE(S) OR THE CONTENT CONTAINED THEREIN BY YOU.
5.3. GIVEN CONTINUOUS, RAPID ADVANCES IN MEDICAL SCIENCE AND HEALTH INFORMATION, INDEPENDENT PROFESSIONAL VERIFICATION OF MEDICAL DIAGNOSES, INDICATIONS, APPROPRIATE PHARMACEUTICAL SELECTIONS AND DOSAGES, AND TREATMENT OPTIONS SHOULD BE MADE AND YOU SHOULD CONSULT A VARIETY OF SOURCES. WHEN PRESCRIBING MEDICATION. YOU ARE ADVISED TO CONSULT THE PRODUCT INFORMATION SHEET (THE MANUFACTURER'S "PACKAGE INSERT") ACCOMPANYING EACH DRUG TO VERIFY, AMONG OTHER THINGS, CONDITIONS OF USE, WARNINGS AND SIDE EFFECTS AND IDENTIFY ANY CHANGES IN DOSAGE SCHEDULE OR CONTRADICTIONS, PARTICULARLY IF THE MEDICATION TO BE ADMINISTERED IS NEW, INFREQUENTLY USED OR HAS A NARROW THERAPEUTIC RANGE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NO RESPONSIBILITY IS ASSUMED BY WK FOR ANY INJURY AND/OR DAMAGE TO PERSONS OR PROPERTY, AS A MATTER OF PRODUCTS LIABILITY, NEGLIGENCE LAW OR OTHERWISE, OR FROM ANY REFERENCE TO OR USE BY YOU OF ANY OF THE ONLINE SERVICE(S).
6. Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WK, ITS AFFILIATES, LICENSORS, OR COLLABORATORS, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY WHOSE CLAIM IS RELATED TO THIS AGREEMENT, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR (A) LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES OR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SIMILAR DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER WK OR THE APPLICABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY CLAIMS, DAMAGES OR COSTS OF ANY NATURE IN EXCESS OF THE LESSER OF $500 OR THE AMOUNT OF FEES PAID BY YOU (OR YOUR APPLICABLE SUBSCRIBER) FOR YOUR ACCESS TO THE ONLINE SERVICE(S). THIS LIMITATION OF LIABILITY AND THE DISCLAIMERS SET FORTH IN THIS AGREEMENT ARE INDEPENDENT OF ANY REMEDIES SET FORTH HEREIN. YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY AND THE DISCLAIMERS SET FORTH IN THIS AGREEMENT ARE AN ESSENTIAL ELEMENT TO MAKING THE ONLINE SERVICE(S) AVAILABLE UNDER THE TERMS OF THIS AGREEMENT, AND THEREFORE THIS LIMITATION OF LIABILITY AND THE DISCLAIMERS SET FORTH IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF SUCH REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. YOU ACKNOWLEDGE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION, WK AND ITS LICENSORS WOULD NOT PROVIDE THE PLATFORM OR THE ONLINE SERVICE(S) AND THE CONTENT ACCESSIBLE THEREIN.SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
7. Indemnification. You agree to defend, indemnify and hold harmless WK, its affiliates, licensors, and collaborators, and any of their respective officers, directors, employees, subcontractors, agents, successors, assigns, affiliates or subsidiaries, from and against any and all claims, causes of action, lawsuits, liabilities, proceedings, losses, damages, costs and expenses (including reasonable legal and accounting fees) arising out of, connected with or resulting in any way from (i) Your use of the Online Service(s); (ii) Your violation of this Agreement or any applicable law; (iii) Your negligence or willful misconduct; (iv) incomplete or inaccurate information or data provided by You; (v) unauthorized use of any Content; or (vi) any of Your Content uploaded or posted to the Online Service(s). WK reserves the right, at its discretion, to assume or participate, at Your expense, in the investigation, settlement and defense of any action or claim to which it is entitled to indemnification. No claim shall be settled without WK's prior written consent unless such settlement includes a complete release of WK, its affiliates, licensors, and collaborators from all liability and does not contain or contemplate any payment by, or injunctive or other equitable relief binding upon, WK, its affiliates, licensors, and collaborators. You acknowledge and agree that there can be no adequate remedy at law to compensate WK, its affiliates, licensors, and collaborators for the breach of the intellectual property protection provisions of this Agreement; that any such breach would result in irreparable harm to WK, its affiliates, licensors, and collaborators that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, WK, its affiliates, licensors, and collaborators shall be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages or of posting a bond), in addition to whatever remedies may be available at law.
8. Digital Millennium Copyright Act ("DMCA") Notice. Some materials accessible in the Online Service(s) may be from third parties not within WK's control. WK is under no obligation to, and does not, scan the Online Service(s) for the inclusion of illegal or impermissible content. However, WK respects the copyright interests of others and, as a policy, does not knowingly permit content herein that infringe another party's copyright. If You believe any content infringes a copyright, You should provide us with written notice that at a minimum contains:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party 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 notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
All DMCA notices should be sent to WK's designated agent as follows:
If You believe that any such material violates any intellectual property rights other than a copyright, please send to WK at email@example.com a comprehensive detailed message setting forth the following information: (1) Your name and the name of Your company, if any; (2) Your contact information, including Your e-mail address; (3) the nature and substance of Your complaint, the specific rights at issue, and Your basis for making the complaint, including the content or posting that is objectionable; and (4) the following statement: "The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message." WK may, in appropriate circumstances and at its discretion, terminate the account or access of users who infringe the intellectual property rights of others.
9. Government Restricted Rights. The Online Service(s) are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the government is subject to restrictions as set forth in applicable laws and regulations. Use of the Online Service(s) by the government constitutes acknowledgment of WK's, its affiliates', licensors', and collaborators' proprietary rights in them.
10. General Provisions.
10.1. Amendments. Except as otherwise expressly provided herein, this Agreement may not be modified, amended, or in any way altered except by agreement of both You and WK.
10.2. Assignment. You shall not assign this Agreement in whole or in part, without the prior written consent of WK. WK may freely assign this Agreement to any affiliate or successor of WK or in connection with any sale transaction or change of control transaction involving any of the Online Service(s) and may delegate its duties, in whole or in part, in each case without Your consent. An assignee of either party authorized hereunder shall be bound by the terms of this Agreement and shall have all of the rights and obligations of the assigning party set forth in this Agreement. If any assignee refuses to be bound by all of the terms and obligations of this Agreement or if any assignment is made in breach of the terms of this Agreement, then such assignment shall be null and void and of no force or effect.
10.3. Entire Agreement. This Agreement and any other document expressly referenced herein, constitutes the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and supersedes all prior proposals, understandings, and agreements, whether oral or written, between the parties with respect to the subject matter hereof. You acknowledge that there were no representations or promises made by WK on which You have relied in entering into this Agreement that are not expressly stated herein. If You are an Institutional User, and there is a conflict between the terms of this Agreement and the applicable Subscriber's Subscription Agreement, the applicable Subscription Agreement will govern.
10.4. Location. The Online Service(s) are controlled and operated from within the United States. Without limiting any provisions of this Agreement, WK makes no representation that the Online Service(s) are appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Online Service(s) from other locations do so of their own volition and are responsible for compliance with applicable laws.
10.5. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the United States and the State of New York, without giving effect to the conflicts of law provisions thereof and excluding the United Nations Convention for Contracts for the International Sales of Goods. You irrevocably and unconditionally (i) consent to submit to the exclusive jurisdiction of the state and federal courts of New York County, New York for any litigation or disputed arising out of or related to this Agreement, (ii) agree not to commence any litigation arising out of or related to this Agreement except in the state or federal courts of New York County, New York, and (iii) agree not to plead or claim that such litigation brought therein has been brought in an inconvenient forum. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF.
10.6. Severability. If any provision of this Agreement or its application to particular circumstances is determined by a court of competent jurisdiction to be invalid or unenforceable, that provision (or its application to those circumstances) shall be deemed stricken and the remainder of this Agreement (and the application of that provision to other circumstances) shall continue in full force and effect insofar as it remains a workable instrument to accomplish the intent and purposes of the parties; the parties shall replace the severed provision with the provision that will come closest to reflecting the intention of the parties underlying the severed provision but that will be valid, legal, and enforceable.
10.7. Waivers. No purported waiver by any party of any default by any other party of any term or provision contained herein (whether by omission, delay or otherwise) shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving party. No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained herein.