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1. SERVICES. During the term of this Agreement, Epocrates agrees to provide the Epocrates Service to User and grants User a limited, non-exclusive, non-transferable license to: (a) in the case of Users accessing the PDA Service, download and install the Epocrates Information on User’s personal mobile electronic device and use the Software solely to access the Content and updates thereto made available by Epocrates through the AutoUpdate synchronization process and use the Epocrates Information in compliance with the Territory restrictions described below in "Restrictions"; (b) for Users of the Online Service, use the Epocrates Information on the Epocrates website (the "Website", currently located at www.epocrates.com); and (c) for Users of the PDA Service and the Online Service, use the Epocrates Information, in all cases solely for personal or professional non commercial purposes, fully in accordance with the "Restrictions" set out below.
2. RESTRICTIONS. User may not use, copy, modify, publish, distribute or transfer the Epocrates Information, or any copy thereof, in whole or in part, except as expressly provided in this Agreement. User may not reverse engineer, disassemble, decompile, or translate the Epocrates Information, or otherwise attempt to derive the source code of any Software or the Epocrates Information, or authorize any third party to do any of the foregoing. User is prohibited from developing, selling or distributing applications that are capable of launching, being launched from, or are otherwise integrated with, the Epocrates Information without the express written consent of Epocrates. User may not rent, lease, loan, resell for profit, distribute, sublicense or use in a time-sharing arrangement the Epocrates Information, or any part thereof. The Territory for all applications other than the Epocrates coding reference contained in the PDA Service is worldwide. The Territory for downloading and using the Epocrates coding reference application is limited to the following countries: Argentina, Australia, Belgium, Canada, Cayman Islands, Chile, Colombia, India, Ireland, Israel, Italy, Jamaica, Japan, Mexico, New Zealand, Norway, Panama, Portugal, Singapore, South Africa, Spain, Sweden, Turkey, United Arab Emirates, United Kingdom, United States and its territories, and Venezuela. User represents and warrants that User will comply with these territorial limitations. User shall ensure that anyone permitted by User to access the Epocrates Information is aware of, accepts and will comply with the provisions of this Agreement, and User agrees to the terms of this Agreement on behalf of such individuals.
3. OWNERSHIP. The Epocrates Information is the property of Epocrates or its licensor(s) (and their licensors) and is protected by copyright and other intellectual property laws. The Epocrates Information is licensed, not sold, to User for use only under the terms of this Agreement and only in connection with the Epocrates Service, and Epocrates reserves all rights not expressly granted to User. The Epocrates coding reference application includes Content licensed from the American Medical Association ("AMA") as one of Epocrates’ licensors under the Agreement. The provision of updated Content for the Epocrates Service is dependent upon continuing contractual relationships between Epocrates and its licensors, including the AMA in the case of the Epocrates coding reference application.
4. TERM; TERMINATION. The Agreement will terminate immediately without notice to User if User breaches any material term or condition of this Agreement. Epocrates reserves the right to modify any of its services and/or product offerings, or to terminate the Agreement at any time without notice to User. In the case of Users of the PDA Service, User may terminate this Agreement at any time by notifying Epocrates in writing or by removing the Epocrates Information from the User's PDA. Upon termination, Epocrates’ obligation to provide the Epocrates Service, and all associated license rights granted to User, shall cease, and User shall promptly destroy, or return the Epocrates Information to Epocrates. User acknowledges that some or all of the Epocrates Information may expire or require periodic updating by performing an AutoUpdate synchronization function connecting to Epocrates’ servers. Upon expiration of any portion of the Epocrates Information, the Agreement with respect to the Epocrates Service associated with such Epocrates Information shall terminate.
5.1. CONTENT MAINTAINED BY EPOCRATES. User acknowledges and agrees that: (a) Epocrates or its licensors may, from time to time, elect to update information contained in the Epocrates Information, but Epocrates does not warrant or guarantee that any product description(s) or other information contained in the Epocrates Information or accessed through the Epocrates Information will be updated at any time during the term of this Agreement; (b) Epocrates does not assume, and expressly disclaims, any obligation to obtain and include any information in the Epocrates Information; (c) the Epocrates Information includes information provided to Epocrates by its licensors or other third parties, and Epocrates does not assume and expressly disclaims any responsibility for the accuracy of such third-party content; (d) neither Epocrates, nor its licensors, are advocating the use of any product described in the Epocrates Information (or elsewhere), nor is Epocrates or its licensors responsible for misuse of a product or procedure due to typographical or other errors in the Epocrates Information, User negligence or otherwise; (e) User agrees to seek additional information on any product from the manufacturer; and (f) User will use the Epocrates Information only as a reference aid, and that such information is not intended to be (nor should it be used as) a substitute for the exercise of professional judgment. In view of the possibility of human error or changes in medical science, User should confirm the information in the Epocrates Information through independent sources. User agrees and acknowledges that User will, at all times, advise patients to seek professional diagnosis and treatment for any medical condition and to discuss information obtained from the Epocrates Information with their healthcare provider.
5.2. ADDITIONAL CONTENT ADVISORY. The Epocrates Sx symptom assessment application included in the PDA Service is intended for educational use by providing an index to a database of potential diagnoses that might be associated with a set of clinical features. The application must not be considered complete or comprehensive due to possible errors in the database or in the relationships of clinical findings to disease entities. In addition the only diseases displayed are those diseases in the Epocrates Dx reference. The General Hospital Corporation licenses the content for the Epocrates Sx application to Epocrates and assumes no responsibility for any errors or defects in the application or the content. Use of the application is at the user's sole risk. In no event will the General Hospital Corporation be liable to the user or any third parties for fees or expenses of any nature or kind arising from use of the Epocrates Sx symptom assessment application. The User agrees that the Sx application is not intended to replace the advice of a doctor, and must not be used as a diagnostic decision making system, and must not replace or overrule a licensed health care professional's judgment or clinical diagnosis. The user understands that diseases that the user might consider appropriate may not appear on the list of disease links. Please be aware when using the drug interaction or IV compatibility functionality included in the Epocrates Information that the interaction and compatibility information is based on two-drug combinations and that the results returned by the application reflect only paired interactions and compatibility and do not reflect interactions or incompatibilities arising from combinations of more than two drugs at a time.
5.3 BMJ CONTENT. Certain content contained in the Epocrates Information is licensed to Epocrates and provided to you by the BMJ Publishing Group Ltd ("BMJ Group"). Such content is referred to as the "BMJ Content". The BMJ Content is intended for use by licensed medical health professionals in the United States and Canada. Your use of the BMJ Content acknowledges acceptance of the foregoing restrictions, disclaimers, and limitations described in these terms and conditions. You expressly acknowledge and agree that to the fullest extent permitted by law that the BMJ Group is not responsible for the results of your decisions resulting from the use of the BMJ Content, including, but not limited to, your decisions on diagnosis, treatment and follow up for a patient, or from choosing or not choosing specific treatments based on the BMJ Content. The BMJ Content does not endorse drugs, diagnose patients, or recommend therapy. Users should use their professional judgment in using the BMJ Content, which is done at their own risk. They should always check and ensure that in each situation at the point of care they are qualified to consult/and/or treat and/or prescribe at the point of care of a patient. Categories presented indicate a judgment about the evidence and strength of evidence available to our authors prior to publication and the relevant importance of benefit and harms. For BMJ Point of Care monographs included in the BMJ Content, BMJ Group relies on its authors to confirm the accuracy of the information presented to subscribe generally accepted practices. Users should be aware that professionals in the field may have different opinions. Because of this fact and because of regular advances in medical research and the possibility of human error, Users should independently verify specified diagnosis methods, treatments, follow up, drugs and any contraindications or side effects including via manufacturers guidance. Also, the categories and information do not indicate whether a particular diagnosis, treatment and/or follow up is generally appropriate or whether it is suitable for a particular individual. Please also note that information whilst not warranted to be accurate, is generally updated annually so may be out of date. Ultimately it is the User’s responsibility to make your own professional judgments, so to appropriately advise and treat yourself or your patients.
6.1 MAL. Epocrates acknowledges that the Epocrates Information contained in the PDA Service may incorporate portions of MAL, an AvantGo product that provides Internet connectivity and browsing functionality for the Palm Connected Organizer. MAL is derived from source code developed and made available by The Mozilla Organization, a division of Netscape Communications Corporation. Pursuant to the AvantGo MAL license agreement, which is based on the Netscape Public License (a copy of which is incorporated in the Software source code and is also available on the Epocrates website at http://www.Epocrates.com), Epocrates has the right to distribute the original MAL code (the "Original Code"), as well as any modifications that Epocrates makes to the Original Code. In consideration of such right, Epocrates has agreed to place any modifications it makes to the Contributor Code on the Mozilla.org website (http://www.mozilla.org/MPL). Further, (a) the terms of this Agreement are in no way intended to alter or restrict User's license and other rights under either the AvantGo MAL agreement or the Netscape Public License; (b) any terms which differ from such agreements are offered solely by Epocrates alone, and not by AvantGo, The Mozilla Organization/Netscape Communications Corporation or other contributor; and (c) Epocrates expressly agrees to defend and hold such parties harmless from any liability incurred by such parties as a result of such differing terms.
6.2GDBM. Epocrates acknowledges that the Epocrates Information contained in the PDA Service may incorporate GDBM, the GNU data base manager by Phillip A. Nelson, copyright 1990, 1991, 1993 Free Software Foundation, Inc. (FSF) GDBM is distributed pursuant to the GNU General Public License (available at http://www.gnu.org/licenses/gpl.txt) without any warranty of any kind, including express or implied warranties, or warranties of merchantability or fitness for a particular purpose. By accepting this End User Agreement, you are also accepting the terms of the GNU Public License. The source code for GDBM is available by contacting Epocrates or from FSF at http://directory.fsf.org/GNU/gdbm.html.
7.1 Software Warranty (applicable for User’s accessing the PDA Service). For a period of sixty (60) days after User downloads the Software (the "Software Warranty Period"), Epocrates warrants that the Software, when used as permitted under this Agreement and in accordance with the instructions provided from Epocrates, will operate substantially as described in such instructions. Epocrates does not warrant that User's use of the Software will be error-free or uninterrupted. Epocrates will, at its own expense and as its sole obligation and User's exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error in the Software reported to Epocrates by User in writing during the Software Warranty Period, or, if Epocrates determines that it is unable to correct the error, to replace the Software. Any such error correction or replacement Software provided to User will not extend the original Software Warranty Period. Because the User's PDA has limitations on its memory, Epocrates recommends that User limit the information stored in the PDA to ensure proper operation of the Software.
7.2 DISCLAIMER. THE EPOCRATES SERVICE, IS PROVIDED TO USER "AS IS." EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, EPOCRATES AND ITS AFFILIATES, AGENTS AND LICENSORS: (A) CANNOT AND DO NOT WARRANT THE SEQUENCE, ACCURACY, COMPLETENESS, CURRENCY, RESULTS OBTAINED FROM, OR NON-INFRINGEMENT OF THE EPOCRATES SERVICE PROVIDED HEREUNDER; AND (B) EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. The laws of some jurisdictions do not permit waivers of certain warranties, so portions of the above disclaimer may not apply to User. In the event Epocrates cannot waive any warranty, the duration and scope of such warranty will be the minimum permitted under applicable law. ANY MATERIAL OR DATA OBTAINED THROUGH USE OF THE EPOCRATES SERVICE IS AT USER’S OWN DISCRETION AND RISK AND USER UNDERSTANDS THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING DAMAGE, INCLUDING TO USER’S COMPUTER SYSTEM OR LOSS OF DATA.
8.1. LIMITATION OF LIABILITY. NEITHER EPOCRATES NOR ITS AFFILIATES, AGENTS OR LICENSORS SHALL BE LIABLE TO THE USER OR ANYONE ELSE UNDER ANY CLAIM, DEMAND OR ACTION ARISING OUT OF OR RELATING TO USER'S USE OF THE EPOCRATES SERVICE, NOR EPOCRATES' PERFORMANCE OF (OR FAILURE TO PERFORM) ANY OBLIGATION UNDER THIS AGREEMENT, OR FOR ANY INACCURACY, DELAY, INTERRUPTION IN SERVICE, ERROR OR OMISSION IN THE EPOCRATES SERVICE, OR OR FOR DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES DUE TO LOST PROFITS OR BUSINESS INTERRUPTION, OR OTHER DAMAGES, EVEN IF EPOCRATES, ITS AFFILIATES, AGENTS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES IS/ARE FORESEEABLE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL EPOCRATES, ITS AFFILIATES, AGENTS OR LICENSORS BE LIABLE TO USER UNDER THIS AGREEMENT FOR MORE THAN ONE THOUSAND DOLLARS. The laws of some jurisdictions do not permit the disclaimer of liability for certain types of damages, so portions of the above may not apply to User.
8.2 INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY LAW THE USER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS EPOCRATES AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS FROM AND AGAINST ALL CLAIMS, ACTIONS LIABILITIES, LOSSES, EXPENSES, DAMAGES AND COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) ("CLAIMS") THAT MAY AT ANY TIME BE INCURRED BY ANY OF THEM BY REASON OF ANY CLAIMS, SUITS OR PROCEEDINGS ARISING FROM (I) THE USER’S USE OF THE EPOCRATES SERVICE OR THE EPOCRATES INFORMATION OR THE USE OF THE EPOCRATES SERVICE OR THE EPOCRATES INFORMATION BY ANY OTHER PARTY AUTHORIZED BY USER OR USING USER’S CREDENTIALS AND (I) ANY BREACH BY USER OF ANY REPRESENTATION, WARRANTY OR DUTY HEREUNDER.
9. U. S. GOVERNMENT END USERS. The Epocrates Information is a "commercial item" as that term is defined at FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 and is provided to the U.S. Government only as a commercial end item. Consistent with FAR 12.212 and DFARS 227.7202, all U.S. Government End Users acquire the Epocrates Information with only those rights set forth herein.
The Epocrates coding reference product included in the PDA Service includes CPT which is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable which were developed exclusively at private expense by the American Medical Association, 515 North State Street, Chicago, Illinois, 60610. U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (June 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (June 1987) and/or subject to the restricted rights provisions of FAR 52.227-14 (June 1987) and FAR 52.227-19 (June 1987), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
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11.1 GOVERNING LANGUAGE AND LAW. The governing language of this Agreement is English. This Agreement and the legal relations between the parties arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California exclusively, as such laws apply to contracts between California residents performed entirely within California. The Application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
11.2 ARBITRATION - CHOICE OF FORUM AND VENUE. Any dispute, controversy or claim arising out of or relating to this Agreement shall be settled by arbitration in San Mateo County California, by a single arbitrator in accordance with the American Arbitration Association ("AAA") rules. The arbitrator shall be empowered to award only those damages which are permitted in this Agreement, subject to any disclaimers of damages and liability limits set forth herein. The award rendered by the arbitrator shall include costs of the arbitration and reasonable costs for experts and other witnesses. Judgment on the award may be entered in any court having jurisdiction. Nothing in this Agreement shall be deemed as preventing either party from seeking provisional relief from any court of competent jurisdiction, in order to protect that party's name or proprietary rights. The award of the arbitrator shall be final and binding upon the parties without appeal or review except as permitted by California law.
11.3 PRIVACY. Epocrates' current privacy policies are available on the Website, at http://www.epocrates.com/company/privacy.cfm, and are incorporated herein by reference.
11.4 WAIVER. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
11.5 ASSIGNMENT. Neither this Agreement nor any rights or obligations of User hereunder may be assigned or delegated by User in whole or in part without the prior written approval of Epocrates. Any assignment or delegation in derogation of the foregoing shall be null and void.
11.6 SEVERABILITY. If any part of this Agreement is for any reason found to be unenforceable, all other parts nevertheless remain enforceable as long as a party's rights under this Agreement are not materially affected. In lieu of the unenforceable provision, the parties will substitute or add as part of this Agreement an enforceable provision that will be as similar as possible in economic and business objectives as was intended by the unenforceable provision.
11.7 FORCE MAJEURE. Any failure of Epocrates to perform or delay in the performance of Epocrates’ obligations under this Agreement due to any cause or event not reasonably within Epocrates’ control, including but not limited to casualty, labor disputes, failure of equipment or carriers orutilities, compliance with governmental authority or Act of God, shall not constitute a breach of this Agreement, and Epocrates’ performance shall be excused during such period of delay.
11.8 COMPLETE AGREEMENT. This Agreement is the complete and exclusive statement of the agreement between Epocrates and User which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement.
THE EPOCRATES INFORMATION IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY.UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
© Epocrates, Inc., 1999-2008. All Rights Reserved.Protected by copyright and licenses restricting use, copying, distribution and decompilation. Epocrates, Epocrates Rx, Epocrates Rx Online, Epocrates Rx Pro, Epocrates SxDx, Epocrates Lab, Epocrates Online, Epocrates ID, MobileCME, Epocrates MedTools, DocAlert and DocMemo are trademarks of Epocrates in the United States and other countries.
CPT copyright © 2007 American Medical Association. All rights reserved.
CPT is a registered trademark of the American Medical Association.
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