MEDMANAGE SYSTEMS, INC.
Availability. Availability of the Services will be subject to scheduled and unscheduled maintenance, downtime due to systems or communications failures, and capacity constraints. MedManage may at any time modify or discontinue any aspect or component of the Services by posting prior notice on the Platform. You have a non-exclusive, non-transferable right to access and use the Services and to download, print, use and distribute prescription drug vouchers and samples (collectively, the “Materials”) solely for purposes of providing patient prescriptions for drug samples and solely pursuant to the terms of this Agreement and Title 21 U.S.C. and 21 C.F.R. The rights granted to you are personal, and any attempt to rent, lease, sell, transfer, assign, or sublicense any or all of these rights by you will be null and void.
Use of the Services. You may not use the Services on behalf of multiple individuals or entities or any individual or entity other than yourself and you may not use them other than as contemplated by Section 2 of this Agreement. You may not modify, translate, or create derivative works based on the Services, or permit other individuals to do so.
Use of the Materials. You may not use the Services or distribute Materials or your Log-in ID to any third parties other than in accordance with the terms of this Agreement. You may not attempt, or allow others to attempt, to disassemble, decompile, “unlock,” reverse translate, or in any manner decode, customize, or modify any software or code related to the Platform or the Services for any reason.
Access. You are responsible for providing all hardware, system software, access devices, networks and telecommunications or other connections required for access to the Platform, for paying all telephone or other costs (including costs of data transmission) associated with such access, and for all costs you incur in using the Services.
Security. MedManage uses industry standard means to secure its server and its communications with you. You acknowledge that MedManage and its co-branded partner(s), as applicable cannot guarantee security over the Internet. It is your responsibility to take appropriate precautions to protect and preserve your computers and data.
Electronic Signature. I understand that the user ID and password I create will be used as my electronic signature in this system, and I certify that I intend this electronic signature to be the legally binding equivalent of my handwritten signature.
Compliance. Federal law regulates the distribution of prescription drug samples and the use of electronic systems to request samples. Under federal law, samples may be distributed only in response to a request from a practitioner who is authorized to prescribe the drug, and that request (electronic or paper) must be signed by the practitioner and not anyone on his or her behalf. Additionally, any system or electronic records or signatures must include security controls. Accordingly, in order to protect patient safety, maintain prudent business practices, and avoid violations of federal law, you must keep your password confidential to prevent any unauthorized use of the Platform. You further agree that your use of the Platform and the Services will comply with all applicable laws and regulations, including, without limitation, United States and international copyright laws, the United States Export Administration Act, Title 21 U.S.C. and 21 C.F.R., and the rules and regulations thereunder.
Authority. You represent and warrant that you are properly authorized to use the initial Log-in ID you used to gain access to the Platform, and that you have the power and authority to enter into and perform your obligations under this Agreement.
Each party hereby agrees that it shall not disclose any confidential information (“Confidential Information”) received from the other party to a third party, or use or copy any Confidential Information received from the other party for any purpose other than as expressly permitted under the terms of this Agreement (including, without limitation, Section 5 above), as necessary to perform a party's obligations under this Agreement, or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party's Confidential Information as it uses to protect its own confidential information or like nature, but in no circumstances less than reasonable care. Each party shall take reasonable diligent steps to ensure that its employees comply with the foregoing confidentiality obligations.
THE SERVICES AND MATERIALS IN THIS AGREEMENT ARE BEING PROVIDED “AS IS.” EXCEPT AS EXPRESSLY PROVIDED HEREIN, MEDMANAGE (AND OUR CO-BRANDED PARTNER(S), AS APPLICABLE) EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY ASPECT OF THE SERVICES OR MATERIALS, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MEDMANAGE AND ITS CO-BRANDED PARTNER(S), AS APPLICABLE DOES NOT WARRANT THAT THE MATERIALS OR THE SERVICES WILL BE UNINTERRUPTED, SECURE, ACCURATE, TIMELY, VIRUS-FREE OR ERROR-FREE.
>MedManage’s (and our co-branded partner(s), as applicable) liability to you or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement or your use of the Materials or the Services will be limited to direct damages and will not exceed the amount of any fees received by MedManage as a direct result of your use of the Services in the twelve (12) months preceding the act or event resulting in such losses.
>UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (TORT, CONTRACT OR OTHERWISE) WILL MEDMANAGE OR OUR CO-BRANDED PARTNER(S) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY GENERAL, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES OR LOSSES RESULTING FROM THE USE OR PERFORMANCE OF THE SERVICES, DUE TO ANY CAUSE. THE EXCLUSION CONTAINED IN THIS PARAGRAPH WILL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOREGOING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU. You agree that the foregoing represents a fair allocation of risk hereunder and is a material inducement to MedManage’s entering into this Agreement.
>You will defend, indemnify, and hold harmless MedManage (and our co-branded partner(s), as applicable), its affiliates, and their officers, directors, agents and employees from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from (a) your use of the Services and Materials or from your negligent misconduct; or (b) access to or use of the Services by any third party using any password or other user id you have provided to MedManage.
>This Agreement represents the complete agreement and understanding between the parties concerning the Services and the Materials and supersedes all other agreements, written or oral, regarding its subject matter. You represent that you have read all of these terms and conditions and agree to be bound by them. Our co-branded partners are also intended to receive the benefit of these terms.
Choice Of Law And Forum. This Agreement will be governed by, and construed in accordance with, the laws of the State of Washington (except for conflict of law rules) and United States federal law. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal court or the state courts located in King County, Washington, as the case may be, and the parties hereby irrevocably consent to the exclusive jurisdiction and venue of such courts and waive any objection to such courts’ exercise of personal jurisdiction over them.
Independent Contractor. In making and performing this Agreement, the parties act and shall act at all times as independent contractors and nothing contained in this Agreement shall be construed or implied to create the relationship of principal-agent, partner, joint venturer, franchisor-franchisee or employer-employee between the parties. At no time shall either party have any right, power or authority to create any obligation or responsibility on behalf of the other party.
Force Majeure. Neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control, including, but not limited to earthquakes, loss of utilities, and other disasters.
Severability. If any term or condition of this Agreement is held to be unenforceable, it will be reformed only to the extent necessary to make it enforceable, and will not affect the enforceability of the remaining provisions hereof.
Assignment. You may not transfer, sublicense or otherwise assign this Agreement, or delegate its duties, or any of its rights or obligations hereunder without MedManage’s prior written consent and any attempted assignment by you without such consent shall be null and void. MedManage may transfer this Agreement to a transferee who acquires all or substantially all of MedManage’s business to which this Agreement relates. This Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.