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Interactive Patient Education Text Content End User License Agreement
This End User License Agreement ("EULA") is entered into between Elsevier and the undersigned entity ("End User").
Terms and Conditions for all Interactive Patient Education Text Content.
- Scope of Use. End User is licensed to use the Interactive Patient Education Text Content for the number of patient discharges for the facilities and venues of care for which End User has contracted with Vendor for the Vendor software, product or service containing the Interactive Patient Education Text Content or with which the Interactive Patient Education Text Content is integrated or through which the Interactive Patient Education Text Content is delivered (the "Vendor Software"). Use for additional discharges or facilities or venues of care beyond those for which End User has contracted may require payment of license fees. End User will, upon request, report to Vendor and Elsevier its actual discharges, use, and other statistics as appropriate to determine whether any additional license fees are payable by End User. End User may alter or edit the Content to meet the individual needs of the End User's institution. In such case, End User will add the following language to such altered of edited documents: "Adapted from Elsevier Inc. by [insert End User name]."
- Customization. Certain Interactive Patient Education Text Content may be customized by End User's designated administrators for End User's institution-specific protocols, procedures and other requirements. End User shall indemnify Elsevier against any claim relating to any customization or alteration of the Interactive Patient Education Text Content.
- Term of License. The term of the license to the Interactive Patient Education Text Content granted hereunder shall be the term of End User's license to the Vendor Software (the "License Term").
- No Time Sharing. End User shall not use the Interactive Patient Education Text Content for timesharing, subscription services, or rental use for the benefit of third parties.
- Copying Rights. End User shall not duplicate the Interactive Patient Education Text Content without the prior written consent of Elsevier, except for archival purposes and for inclusion of Content used for patients and placed into their medical records.
- Export. End User shall comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither the Interactive Patient Education Text Content, nor any direct product thereof, are exported, directly or indirectly, in violation of applicable laws.
- Data Collection and Use. Vendor may access and collect End User's utilization data, and provide such utilization data to Elsevier, which Elsevier may use to leverage knowledge and intelligence that originates within an EHR's reporting structure for patient education utilization and trend information to support improvements and enhancements for Elsevier products. By way of example only, such utilization data may include (but is not limited to) user profile and experience data, access methods, topic utilization, search and algorithm, customization, Meaningful Use compliance information, and identification of education using EHR technology. Upon request, End User shall provide Vendor with the access required to gather such data and/or with the data itself.
- Governing Law& Jurisdiction. This EULA shall be deemed to have the same governing law, jurisdiction, and dispute resolution provisions as the End User agreement between Vendor and the End User for the Vendor Software.
- Third Party Access. End User may permit agents or contractors to use the Interactive Patient Education Text Content on End User's behalf only to the extent authorized under the End User agreement between Vendor and End User for the Vendor Software, provided that End User is responsible for such agents' and contractors' compliance with this EULA.
- Interactive Patient Education Text Content Warranties. All warranties with respect to the Interactive Patient Education Text Content shall be between Elsevier and End User as follows: Elsevier warrants to End User that the Interactive Patient Education Text Content will conform to the published specifications for the Interactive Patient Education Text Content in effect on the date End User contracts with Vendor for the Vendor Software. Elsevier agrees to update the Interactive Patient Education Text Content to remain in compliance with all laws and regulations that impose requirements or restrictions applicable to the Interactive Patient Education Text Content. Elsevier further warrants that it owns or has the right to provide the Interactive Patient Education Text Content to End User as required under this EULA. End User will provide Elsevier and Vendor with prompt notice of any claim of breach of the foregoing warranty. Other than Elsevier's indemnity obligations under Section 16 End User's exclusive remedies in the case of any breach of the foregoing warranty shall be for Elsevier to promptly replace or modify the Interactive Patient Education Text Content to render it compliant with the foregoing warranties.
- Restrictions on Use of Interactive Patient Education Text Content. End User may only use the Interactive Patient Education Text Content for its own business purposes (which include use by authorized users as defined in the agreement pursuant to which Vendor provides Interactive Patient Education Text Content to End User, and access to medical records prepared through use of the Interactive Patient Education Text Content by patients and their caregivers). This provision does not exclude the viewing or reprinting of previously created patient specific documents, either from the Elsevier Archive or the data stored in the patient's Electronic Medical Record. Accept as otherwise permitted, End User may not alter, modify, translate, publicly perform, publicly display, create derivative works of, remove any proprietary notices, labels, or marks, loan, sublicense to third parties, or otherwise use the Interactive Patient Education Text Content in a manner not expressly licensed for such use hereunder whether through physical transfer of a copy, electronic access through a network of any description, or by any other means whatsoever. All derivative content which is based on Elsevier content provided remains the property of Elsevier Inc. End User may not use the Interactive Patient Education Text Content in a Closed Loop System without the express consent of Elsevier. For purposes hereof, a "Closed Loop System" means any system that provides medical care without intervention. The Interactive Patient Education Text Content requires End Users to exercise independent, clinical judgment, in the delivery of patient care.
- Exclusions. Elsevier shall not be liable for: (a) failure to use the Interactive Patient Education Text Content in accordance with the applicable documentation or published specifications for such Interactive Patient Education Text Content in effect on the date End User entered into this EULA; (b) unlicensed use of the Interactive Patient Education Text Content; (c) use of the Interactive Patient Education Text Content with software, hardware, data or other technology not approved under the applicable documentation or published specifications; (d) errors in implementing the Interactive Patient Education Text Content by a party other than Elsevier; (e) failure by End User to use due care in the use and validation of the results produced by the Interactive Patient Education Text Content; and (f) any medical treatment provided by End User to patients, whether or not the Interactive Patient Education Text Content was used in connection with such treatment. End User shall have full responsibility for the care and well-being of its patients, and any reliance by it upon the Interactive Patient Education Text Content shall not diminish that responsibility. Each User is fully and solely responsible for determining the appropriateness of the content of each and every discharge instruction or patient education handout given to each patient, based on the medical condition and needs of said patient, and is solely liable for the consequences of providing inappropriate or incorrect information to patients.
- Force Majeure. Elsevier will not be liable for any failure or delay in performance under this EULA which is due to any event beyond the reasonable control of Elsevier, including without limitation, fire, explosion, unavailability of utilities or raw materials, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
- DISCLAIMER. ELSEVIER SHALL NOT BE RESPONSIBLE FOR DETERMINING THE SUITABILITY OF INTERACTIVE PATIENT EDUCATION TEXT CONTENT FOR END USER. EXCEPT AS EXPRESSLY STATED HEREIN, AND TO THE MAXIMUM THE EXTENT PERMITTED UNDER APPLICABLE LAW, ELSEVIER MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATION, WARRANTY OR GUARANTY, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE INTERACTIVE PATIENT EDUCATION TEXT CONTENT OR MAINTENANCE AND SUPPORT OF THE INTERACTIVE PATIENT EDUCATION TEXT CONTENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY: (1) OF MERCHANTABILITY; (2) OF FITNESS FOR A PARTICULAR PURPOSE; (3) OF NON-INFRINGEMENT; OR (4) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. ELSEVIER MAKES NO WARRANTY THAT USE OF THE INTERACTIVE PATIENT EDUCATION TEXT CONTENT WILL BE UNINTERRUPTED OR ERROR FREE.
- LIMITATION OF DAMAGES.IN NO EVENT SHALL ELSEVIER OR ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS, OR ANY THIRD PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO, LOSS OF PROFIT, LOST DATA, INACCURATE INPUT, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF BUSINESS REPUTATION OR GOODWILL), HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF IT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY, OR HAS CONSTRUCTIVE KNOWLEDGE, OF SUCH DAMAGES.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ELSEVIER, ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS, PARENT, SUBSIDIARIES OR AFFILIATES FOR DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) EXCEED THE TOTAL FEES PAID OR PAYABLE BY END USER FOR THE INTERACTIVE PATIENT EDUCATION TEXT CONTENT.
- EXCLUSIONS. THE LIMITATIONS AND DISCLAIMERS IN SECTIONS 12, 13 AND 14 SHALL NOT APPLY WITH RESPECT TO: (A) INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (B) LIABILITY FOR DAMAGE TO OR DESTRUCTION OF TANGIBLE PERSONAL PROPERTY OR REAL PROPERTY TO THE EXTENT CAUSED BY THE ACTS OR OMISSIONS OF ELSEVIER OR ITS PERSONNEL OR AGENTS IN THE PERFORMANCE OF ITS SERVICES UNDER THIS AGREEMENT; (C) BREACH OF CONFIDENTIALITY; (D) END USER'S LIABILITY FOR PAYMENT OF FEES OWED UNDER THIS AGREEMENT; OR (E) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER END USER OF ELSEVIER.
- Indemnity. Elsevier agrees to defend and indemnify End User and to hold End User harmless from all claims, damages, losses, costs and expenses (including reasonable attorneys and experts' fees and costs) suffered or incurred by End User arising out of any claim asserted against End User that alleges that the Interactive Patient Education Text Content infringes or misappropriates a third party's copyright; provided that Elsevier is given prompt notice of any such claim and right to control the defense and settlement thereof. End User shall reasonably cooperate with Elsevier in connection with the foregoing. Elsevier assumes no liability or indemnity obligation to End User for claims of infringement or misappropriation arising from (i) use of the Interactive Patient Education Text Content in combination with third party products not supplied by Elsevier, (ii) modifications to the Interactive Patient Education Text Content by a party other than Elsevier, (iii) failure to use the Interactive Patient Education Text Content in accordance with its documentation accompanying the Vendor Software with which the Interactive Patient Education Text Content was provided, (iv) specifications provided by End User; and (v) failure of End User to implement any improvement or updates to the Interactive Patient Education Text Content provided without additional expense by Elsevier or as part of any maintenance services received by End User, if the infringement or misappropriation claim would have been avoided thereby. Should an injunction be issued by a court of competent jurisdiction preventing End User's continued use of the Interactive Patient Education Text Content as permitted under this EULA, Elsevier may, at its option and expense either (a) procure for End User the right to continue to use the Interactive Patient Education Text Content as contemplated hereunder, or (b) replace or modify the Interactive Patient Education Text Content to make its use hereunder non-infringing, provided the Interactive Patient Education Text Content continues to conform to its published specifications in effect on the date of End User's agreement with Vendor for the Vendor Software containing the Interactive Patient Education Text Content. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF ELSEVIER AND THE EXCLUSIVE REMEDY OF END USER AND ANY OTHER ENTITY, WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL OR PROPRIETARY RIGHTS.
- Ownership. As between Elsevier and End User, all right, title, and interest, including all intellectual property rights, in the Interactive Patient Education Text Content, and any derivative works, improvements or modifications thereto, shall be owned by Elsevier.
- Term& Termination. This EULA shall commence on the date the agreement is executed by End User ("Effective Date") and shall continue thereafter until the end of the term specified by the agreement between End User and Vendor for the Vendor Software. If either party fails to observe or perform any material obligation under this EULA, the non-defaulting party may give written notice to the defaulting party specifying the material failure. If the material failure is not corrected or a mutually agreed plan to correct the failure has not been established within thirty (30) days after the date of such notice, the non-defaulting party may terminate this EULA with respect to all Interactive Patient Education Text Content upon written notice to the defaulting party. The right of the non-defaulting party to terminate this EULA under this Section is in addition to all other rights that are available to it under this EULA.
- Effect of Termination. Upon termination of this EULA, End User shall discontinue use and destroy or return to Elsevier all copies of the Interactive Patient Education Text Content and related documentation to which the termination applies; provided however that End User may continue to view or reprint previously created patient specific documents from the Interactive Patient Education Text Content after expiration or termination of this Agreement from the data stored in the patient's Electronic Medical Record.
- Assignment. Subject to all other provisions herein contained, this EULA shall be binding on the parties and their successors and permitted assigns. Elsevier may assign or delegate this EULA upon written notice to End User. End User may not assign or delegate this EULA or any of its rights or obligations hereunder without the prior written consent of Elsevier, except that End User may assign this EULA to the extent End User assigns its agreement with Vendor for the Vendor Software.
- Binding Nature. All the terms and provisions of this EULA shall be binding upon and inure to the benefit of the parties hereto, and their permitted successors and permitted assigns.
- Notices. All notices to Elsevier shall be provided via national overnight courier to Elsevier Inc. (Clinical Solutions), 1600 John F. Kennedy Blvd. Suite 1800, Philadelphia, PA 19103-2899.
- No Waiver. The failure of Elsevier or End User to enforce at any time for any period any provisions of or any rights deriving from this Agreement shall not be construed to be a waiver of such provisions or rights, or the right of Elsevier or End User thereafter to enforce such provisions. Except as otherwise expressly provided in this Agreement, the rights and remedies provided in this Agreement shall be cumulative and not exclusive of any rights or remedies provided by law.
Dated: August 31, 2016