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This Agreement ("Agreement") is made between Salix U.S. LLC ("Owner") and all registered users of LiverHealthNow™/Access.Click.Engage.™ (LHN/ACE) and is effective as of May 1, 2019.
WHEREAS, Owner owns or has acquired rights to the LHN/ACE E-tools (defined below) and desires to grant Organization the License (defined below);
WHEREAS, Organization desires to accept from Owner the License.
NOW THEREFORE, in consideration of the mutual covenants and promises herein contained, Owner and Organization agree as follows:
DELIVERY OF LHN/ACE E-TOOLS; ACCEPTANCE OF AGREEMENT
Upon complete execution of this Agreement, Owner shall use commercially reasonable efforts to deliver electronically to Organization the LHN/ACE tools that the parties mutually agree upon from time to time ("LHN/ACE E-tools"). Organization's License to any LHN/ACE E-tools is subject to the following terms and conditions and all applicable laws. By accepting this License, Organization accepts and agrees to, without limitation or qualification, these terms and conditions and acknowledges that any other agreements between Organization and Owner are superseded and of no force or effect with respect to the LHN/ACE E-tools. Owner acknowledges that its offer, and Organization acknowledges that its acceptance, of the License is not conditioned upon (i) Organization's use, formulary status or purchasing commitment of any of Owner's products or (ii) Owner's recommendation or promotion of Organization's products or services.
SCOPE OF USE
Owner grants Organization a non-exclusive license of the LHN/ACE E-tools solely for Organization's informational and educational communications within Organization's network and its patient population ("License"). All rights, title and interest in the LHN/ACE E-tools, including without limitation, any copyright, shall remain with Owner. Organization may distribute, modify, transmit, reuse, repost, or use the LHN/ACE E-tools including the text and images, solely within the United States; provided, however, that Organization shall not distribute, modify, transmit, reuse, repost, use, rent, lease, sell or sublicense the LHN/ACE E-tools, or any part thereof, to any unaffiliated entity (unless such entity has been duly authorized by Organization to deliver the LHN/ACE E-tools within Organization's network and/or to Organization's patient population and has agreed to deliver the LHN/ACE E-tools subject to the terms and conditions of this Agreement), regardless of the existence or absence of any fee or other remuneration, or for any unlawful use. Organization understands that Owner makes no representation that the LHN/ACE E-tools are appropriate or available for use in locations outside of the United States, and access to the LHN/ACE E-tools from territories where the content of the LHN/ACE E tools may be illegal or inappropriate is prohibited.
NO MEDICAL ADVICE
Organization acknowledges that the LHN/ACE E-tools do not provide medical advice. Organization further acknowledges that Owner is not engaged in rendering medical or similar professional services or advice, and the information provided in the LHN/ACE E-tools is not intended to replace medical advice offered by a health care provider. If Organization desires or needs such services or advice, Organization agrees to promptly consult a physician or professional healthcare provider.
Organization should assume that everything Organization sees or reads in the LHN/ACE E-tools is copyrighted, unless otherwise noted, and may not be used except as provided in this Agreement or in the text of the LHN/ACE E-tools without the written permission of Owner.
The trademarks, tradenames, logos, and service marks (collectively, "Trademarks") displayed in the LHN/ACE E-tools are registered and unregistered Trademarks of Owner and others. Nothing contained in the LHN/ACE E-tools should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in the LHN/ACE E-tools without the written permission of Owner or such third party that may own the Trademarks displayed in the LHN/ACE E-tools. Organization's use of the Trademarks displayed in the LHN/ACE E-tools, or any other content in the LHN/ACE E-tools, except as provided herein, is strictly prohibited. Organization also acknowledges that Owner may aggressively enforce its intellectual property rights to the fullest extent of the law, including, but not limited to, the seeking of criminal prosecution.
EXCLUSION OF WARRANTY
While Owner uses reasonable efforts to include accurate and up-to-date information in the LHN/ACE E-tools, Owner makes no warranties or representations as to its accuracy. Owner assumes no liability or responsibility for any errors or omissions in the content of, or claims related to or arising from the LHN/ACE E-tools and/or content thereof. OWNER DOES NOT REPRESENT OR WARRANT THAT ANY ERRORS IN THE LHN/ACE E-TOOLS WILL BE CORRECTED.
Without limiting the foregoing, the LHN/ACE E-tools are provided to Organization "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. Owner acknowledges that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to Organization. Organization shall be responsible for consulting local laws for any restrictions or limitations regarding the exclusion of implied warranties.
LIMITATION OF LIABILITY
ORGANIZATION'S USE OF THE LHN/ACE E-TOOLS, INCLUDING, BUT NOT LIMITED TO, ANY REVISIONS THERETO, IS COMPLETELY AT ORGANIZATION'S RISK. NEITHER OWNER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE LHN/ACE E-TOOLS SHALL BE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES ARISING OUT OF ORGANIZATION'S ACCESS TO, OR USE OF, THE LHN/ACE E-TOOLS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. OWNER ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, ORGANIZATION'S COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF ORGANIZATION'S ACCESS TO OR USE OF THE LHN/ACE E-TOOLS OR ORGANIZATION'S DOWNLOADING OF ANY MATERIALS, DATA, TEXT, OR IMAGES FROM THE LHN/ACE E-TOOLS.
Organization shall defend, indemnify and hold harmless Owner and its employees, agents, insurers, officers, directors, affiliates and subsidiaries from and against all liabilities, claims, actions or suits (including, but not limited to, court costs, reasonable attorneys' fees, awards and settlements) to the extent the same arise out of or in connection with Organization's use of the LHN/ACE E-tools, including, but not limited to, any revisions thereto, or Organization's negligence, willful misconduct or breach of this Agreement, including, but not limited to, a violation of applicable law, rule, regulation or ordinance in Organization's performance hereunder.
Organization acknowledges that the unauthorized use, transfer or disclosure of the LHN/ACE E-tools or copies thereof will (i) substantially diminish the value to Owner of the trade secrets and other proprietary interests that are the subject of this Agreement; (ii) render Owner's remedy at law for such unauthorized use, disclosure or transfer inadequate; and (iii) cause irreparable injury in a short period of time. If Organization breaches any of its obligations with respect to the use of the LHN/ACE E-tools, Owner shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
This Agreement and its performance shall be governed by the laws of the State of New Jersey, without regard to its conflict of laws provisions. Organization consents and submits to the exclusive jurisdiction of the state and federal courts located in the State of New Jersey, in all questions and controversies arising out of Organization's use of the LHN/ACE E-tools and this Agreement.
MODIFICATION OF AGREEMENT
Owner may, at any time, revise the terms and conditions of this Agreement. If any terms and conditions contained in this Agreement are changed, Owner shall exercise commercially reasonable efforts to provide Organization with such revisions and Organization agrees to be bound accordingly.
Organization shall not assign, delegate or transfer this Agreement or any of the rights or obligations hereunder without the prior written consent of Owner. Any agreement made in breach of this provision is null and void and of no legal force and effect, and Owner will have, in addition to all other rights and remedies it may have hereunder, the right to terminate this Agreement immediately. Notwithstanding the foregoing, Organization may assign this Agreement to an affiliate or a subsidiary or a successor to that area of its business to which this Agreement is related, subject to providing prior written notice to Owner.
Owner may, in its sole discretion, assign, delegate or transfer this Agreement or any of the rights or obligations hereunder and shall use commercially reasonable efforts to notify Organization accordingly.
The terms of this Agreement shall be binding upon and inure to the benefit of Organization, Owner and the parties' respective successors and permitted assigns, if any.
This Agreement shall remain in full force and effect from the Effective Date for a period of one (1) year and shall renew automatically for subsequent one-year terms thereafter, unless terminated earlier in accordance with the terms of this Agreement.
Owner may terminate this Agreement upon thirty (30) days' written notice to Organization. Either party may terminate this Agreement immediately in the event FDA or any other regulatory authority, or any law, rule, or regulation prohibits the use of the LHN/ACE E-tools or if by their intervention Owner may not feasibly provide the LHN/ACE E-tools.
If any part of this Agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction or by any other legally constituted body having jurisdiction to make such determination, the remainder of this Agreement shall remain in full force and effect; provided, however, that the part of the Agreement thus invalidated or declared unenforceable is not essential to the intended purposes of this Agreement.
The failure of either party to demand strict performance of any term or condition of this Agreement shall not constitute a waiver thereof or in any way limit or prevent subsequent strict enforcement of such term or condition.