USE OF THIS EPOCRATES SERVICE IS SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN THE END USER AGREEMENT YOU AGREED TO UPON FIRST ACCESSING THIS EPOCRATES SERVICE. THE END USER AGREEMENT IS REPRINTED BELOW FOR YOUR REFERENCE:
In order to use this Epocrates Service, you must first accept the following agreements. Please read them carefully and accept these agreements as indicated below. If you choose not to accept the agreements at this time, you will be returned here when you attempt to access the Epocrates Service again.
PLEASE READ THIS AGREEMENT CAREFULLY
END USER AGREEMENT
THIS IS AN END USER AGREEMENT ("AGREEMENT") BETWEEN EPOCRATES, INC. ("EPOCRATES") AND THE INDIVIDUAL USER ("USER") WHO INTENDS TO DOWNLOAD OR USE THE EPOCRATES SERVICE. IT HOWEVER INCLUDES TERMS WHICH BIND THE USER TO THIRD PARTIES WHO HAVE LICENSED CONTENT AND/OR SERVICES TO EPOCRATES FOR THIS EPOCRATES SERVICE. THIS AGREEMENT PROVIDES THE USER THE RIGHT TO USE EITHER AN ONLINE VERSION OR A PERSONAL MOBILE ELECTRONIC DEVICE ("PDA") ENABLED VERSION OF EPOCRATES' CONTINUING MEDICAL EDUCATION COURSES, TRACKING AND ANALYTIC TOOLS(COLLECTIVELY, THE "CME APPLICATION") ALONG WITH EDUCATIONAL, LITERARY AND SCIENTIFIC MATERIALS, AUDIO AND VIDEO CONTENT, TEXT, PHOTOGRAPHS, DESIGNS, MARKS AND LOGOS TO BE INCLUDED AS PART OF THE MEDICAL EDUCATION COURSES OFFERED (THE "CME CONTENT"). IT ALSO GRANTS THE USER A RIGHT IN THE RELATED SOFTWARE FOR THE CME APPLICATION AND WEB-BASED AUTHORING, TRACKING AND ANALYTIC TOOLS INCLUDED THEREIN (THE "TECHNOLOGY" AND TOGETHER WITH THE CONTENT, THE "EPOCRATES INFORMATION"). THE CME APPLICATION, THE EPOCRATES INFORMATION TOGETHER WITH THE PROVISION OF UPDATES TO IT AND THE OTHER ASSOCIATED SERVICES ARE REFERRED TO AS THE "EPOCRATES SERVICE". THE ONLINE VERSION OF THE EPOCRATES SERVICE IS REFERRED TO HEREIN AS THE "ONLINE SERVICE" AND THE PDA-ENABLED VERSION OF THE EPOCRATES SERVICE IS REFERRED TO HEREIN AS THE "PDA SERVICE".
THE EPOCRATES SERVICE IS DESIGNED FOR HEALTH PROFESSIONALS WITHIN THE UNITED STATES. TO USE THE EPOCRATES SERVICE, YOU MUST ESTABLISH AN ACCOUNT USING THE PDA AND ONLINE REGISTRATION PROCESS OR SIGN IN WITH YOUR EXISTING EPOCRATES ACCOUNT INFORMATION IF YOU ARE AN EPOCRATES SUBSCRIBER.
EPOCRATES IS WILLING TO PROVIDE THE EPOCRATES SERVICE TO USER, INCLUDING THE FOLLOWING LICENSE TO INSTALL THE PDA SERVICE, IF USER IS USING THE PDA SERVICE, AND TO USE, IF USER IS USING EITHER THE ONLINE SERVICE OR THE PDA SERVICE, THE EPOCRATES INFORMATION ACCORDING TO THIS AGREEMENT, ONLY ON THE CONDITION THAT USER ACCEPTS ALL TERMS IN THIS AGREEMENT.BY ACCEPTING THE TERMS AND CONDITIONS, USER ACKNOWLEDGES THAT USER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT. IF USER IS INSTALLING THE PDA SERVICE, AND USER DOES NOT AGREE TO ANY OF THE TERMS CONTAINED BELOW, USER SHOULD CLICK ON THE "DECLINE" BUTTON BELOW TO DISCONTINUE THE INITIATION PROCESS.
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 Technology solely to access the Content and updates thereto made available by Epocrates ; (b) for Users of the Online Service, use the CME Application on the designated website (the "Website", currently located at www.epocrates.com/cme; and (c) for Users of the PDA Service and the Online Service, use the CME Application, in all cases solely for personal or professional non commercial purposes, fully in accordance with the "User Responsibilities" and "Restrictions" set out below.
2. USER RESPONSIBILITIES. User is solely responsible for all activity occurring under your password or account used to access the Epocrates Service and you are responsible for maintaining the confidentiality of your password and account and ensuring that you exit from your account at the end of each session. You are responsible for notifying Epocrates immediately in the event of any unauthorized use of any password or account or any other known or suspected breach of security. Neither Epocrates, nor any of its licensors are liable for any loss or damage arising from your failure to comply with your responsibilities; User is solely responsible for all aspects of the information User submit ("User Data") in the course of registering for and using the Epocrates Service. Epocrates is not responsible or liable for the loss, destruction, deletion or failure to store any User Data.
3. RESTRICTIONS. User may not use, copy, modify, publish, distribute or transfer the CME Application or Software, 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 CME Application or Software, or otherwise attempt to derive the source code of any Software, 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 Service 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 Service, or any part thereof. User shall ensure that anyone permitted by User to access the Epocrates Service 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.
4. OWNERSHIP. The Epocrates Service 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 provision of updated content and courses for the Epocrates Service is dependent upon continuing contractual relationships between Epocrates and its clients and licensors.
5. 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. Upon expiration of any portion of the Epocrates Information, the Agreement with respect to the Epocrates Service associated with such Epocrates Information shall terminate.
6. CONTENT. User acknowledges and agrees that: (a) 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; (b) neither Epocrates, nor its licensors, are responsible for User negligence or otherwise; (c) User agrees to seek additional information on any product or information included in the Epocrates Information; and (d) User will use the Epocrates Information only for educational purposes, and that such information is not intended to be (nor should it be used as) a substitute for the exercise of professional judgment.
7. WARRANTY; DISCLAIMER.
7.1 Software Warranty (applicable for User's accessing the PDA Service). For a period of sixty (60) days after User downloads the PDA software (the "Software Warranty Period"), Epocrates warrants that such 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.
7.3 THIRD PARTY ACCREDITATION. Epocrates and its licensors take no responsibility for any aspect of continuing medical education credits that may be issued as a result of your use of the Epocrates Service.
8. LIMITATION OF LIABILITY & INDEMNIFICATION.
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 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.
10. EXPORT LAW. The Epocrates Information and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. User agrees not to export the Epocrates Information under any circumstances whatsoever, and by downloading the Epocrates Information, User warrants that User's receipt of the Epocrates Information does not violate the laws or regulations, including applicable sanctions or embargoes, of the U.S. or any other country. User will indemnify and hold Epocrates harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney's fees) arising from or relating to any breach by User of its obligations and warranty under this paragraph. User's obligations under this paragraph will survive the expiration or termination of this Agreement.
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/privacy.do, 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 NO MEDICAL ADVICE. The Epocrates Service is intended for use as medical education only and should not be construed as medical advice. The Epocrates Service is intended for health professionals from the United States only. Health professionals who use the Epocrates Service assume full responsibility for appropriate use of the information available through the Online Service and PDA Services. Health professionals should exercise their own clinical judgment as to the information provided by or through the Epocrates Service and confirm all information provided by or through the Epocrates Service with outside sources before basing any treatment on it.
11.7 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.
11.8 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 or utilities, 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.
11.9 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.
Copyright © 2013 Epocrates, Inc. All Rights Reserved. Protected by copyright and licenses restricting use, copying, distribution and decompilation. Epocrates and MobileCME are trademarks of Epocrates, Inc. in the United States and other countries.