By clicking the “accept” button (or opening and using the software/content package if applicable), you agree to become bound by the terms of this Subscription and License Agreement (the “Agreement”). If you do not agree to these terms, click “decline” (or do not open the package and promptly return it if applicable). READ THE FOLLOWING TERMS IN THIS AGREEMENT CAREFULLY BEFORE INDICATING YOUR ACCEPTANCE. In this Agreement, the term “you” refers to: (i) an entity entering into this Agreement for use of its employees, (ii) an individual purchasing an ThePlasticsFella subscription under this Agreement, either on his or her own behalf (or as agent for a corporation or other entity or organization); or (iii) an individual entering into this Agreement as a condition of using ThePlasticsFella through a subscription purchased by a hospital, medical school, or other institution (“Institution”), where the individual is employed by or affiliated with the Institution.
- LICENSE: ThePlasticsFella, Inc. (“ThePlasticsFella”), in consideration of the subscription fee paid to ThePlasticsFella and your acceptance of this Agreement, grants you a non-exclusive, non-transferable license and right to use and access the ThePlasticsFella database and software (the “Licensed Materials”) in accordance with the applicable subscription terms (as may be further provided in ThePlasticsFella’s separate invoice terms or any additional subscription and license terms entered into by and between ThePlasticsFella and you and/or the Institution):
- INDIVIDUAL: An individual subscription permits one individual to access and use the Licensed Materials for his or her own use only by loading the software on a single computer (i.e., within a single CPU) at a fixed location, by loading the PDA software on a single Personal Digital Assistant (PDA), by loading the ThePlasticsFella Application on a mobile device (e.g., a tablet or smartphone) (a “Mobile Device”), or by using his or her unique user name and password to access the Licensed Materials from any location via the Internet.
- STANDALONE WORKSTATION: A standalone subscription permits multiple users employed by or affiliated with you to access and use the Licensed Materials only for a purpose related to your business by loading the software on a single computer (i.e., within a single CPU) owned or controlled by you, with a hard drive owned or controlled by you connected directly to such computer. You may not install the software on more than one computer. A standalone workstation license does not include Internet access to the Licensed Materials.
- INSTITUTIONAL SUBSCRIPTION: An institutional subscription permits only certain individuals who are employed by or affiliated with the relevant Institution to access and use the Licensed Materials at any Internet-connected computer or on any Mobile Device validated for such use by ThePlasticsFella, but only for the clinical, educational or research purposes of the Institution. Further, access may be restricted to particular websites per the applicable invoice or additional subscription and license terms.
- OWNERSHIP: The Licensed Materials, including without limitation all copyrights and other intellectual property rights therein, are the sole and exclusive property of ThePlasticsFella (or its parents, subsidiaries, affiliates, or designees) or its suppliers. By indicating that you accept these terms, you do not become the owner of the Licensed Materials, but are entitled to use them only according to the terms of this Agreement.
- PERMITTED USES: You may occasionally print out individual articles for personal clinical, educational or research use and/or email individual articles to a colleague, provided that the articles printed and emailed by an individual Authorized User contain in aggregate only insubstantial portions of the Licensed Materials and include a source reference to ThePlasticsFella and its copyright notice. Under no circumstances may Authorized Users print or email large numbers of articles from the Licensed Materials.
- PROHIBITED USES: Except as expressly permitted in this Agreement, any copying, printing, distributing or modifying of the Licensed Materials is strictly prohibited. No part of the Licensed Materials may be copied for resale or other commercial use, or posted on public bulletin boards, web sites, Internet domains, or online chatrooms, or hyperlinked, indexed, or otherwise utilized by automated software means, including: search engines, robots, spiders, crawlers, data mining tools, or any other software that aggregates access to, or the content of, the Licensed Materials. The Licensed Materials may not be combined with other content in knowledge banks or through similar technologies. No part of the Licensed Materials may be reverse engineered or included in other software. ThePlasticsFella electronically monitors compliance with this Agreement (or may otherwise audit your use of the Licensed Materials for compliance with these terms), and reserves the right in its sole discretion to change and or cancel an individual’s user name and password or to disable an IP address without notice in the event of multiple concurrent logins, excessive search quantities or excessive download traffic volumes. You agree to comply with all applicable laws, including all US export laws and regulations, in connection with Your access and use of the Licensed Materials.
- SUBSCRIPTION TERM: You have obtained the right to use and access the Licensed Materials for the subscription period for which you or your Institution have agreed to pay subscription fees. At the end of this period, your license and your associated rights, such as technical support, will expire automatically, unless you or your Institution have renewed your subscription on ThePlasticsFella’s then-current terms. ThePlasticsFella may embed technology in the Licensed Materials causing them to become inaccessible after your subscription period. The Agreement and your license to use the Licensed Materials will also terminate if you fail to comply with any term or condition in this Agreement.
- RESTRICTION AGAINST TRANSFER: You may not sublicense, assign, share, sell, rent, lease, or otherwise transfer your right to use the Licensed Materials (including your username and password) whether by merger, operation of law, or otherwise.
- USE OF PROFESSIONAL JUDGMENT: The editors and authors of the Licensed Materials have conscientiously and carefully tried to create the identified diagnosis measures, treatment alternatives and drug dosages in the Licensed Materials that conform to the standards of professional practice that prevailed at the time of publication. However, standards and practices in medicine change as new data become available and the individual medical professional should consult a variety of sources. For this reason, only the most current release of the Licensed Materials should be consulted when information is sought. New updates of the Licensed Materials are issued periodically; do not rely on older versions. In addition, when prescribing medications, the user is advised to check the product information sheet accompanying each drug to verify conditions of use and identify any changes in dosage schedule or contraindications, particularly if the agent to be administered is new, infrequently used or has a narrow therapeutic range.
The Licensed Materials describe basic principles of diagnosis and therapy. The information provided in the Licensed Materials is no substitute for individual patient assessment based upon the healthcare provider’s examination of each patient and consideration of laboratory data and other factors unique to the patient. The Licensed Materials should be used as a tool to help the user reach diagnostic and treatment decisions, bearing in mind that individual and unique circumstances may lead the user to reach decisions not presented in the Licensed Materials. The opinions expressed in the Licensed Materials are those of its authors and editors and may or may not represent the official position of any medical societies cooperating with, endorsing or recommending the Licensed Materials.
- LIMITED RIGHTS NOTICE. Any access to the Licensed Materials provided under contract to the U.S. Government is provided with limited rights. The Licensed Materials consist of data, as defined in 48 CFR 27.401 or 48 CFR 27.404-2(a), as applicable, and restricted computer software as defined in 48 CFR 27.401. The Licensed Materials may be reproduced and used by the U.S. Government, provided that they will not be used for or in connection with manufacturing and will not be disclosed outside of the U.S. Government or to any U.S. Government contractor, without the prior express written permission of ThePlasticsFella.
- DATA PROTECTION. To the extent that ThePlasticsFella Processes Personal Data about Data Subjects located in the EEA (as such terms are defined in the Data Protection Annex) in performing its obligations under this Agreement, the terms displayed at EULA DPA or such other website address as may be notified to you from time to time (the “Data Protection Annex”) applies to such Processing and is incorporated into this Agreement. ThePlasticsFella may, in its sole discretion, amend or replace the Data Protection Annex at any time without notice to you and you should review the terms of the latest Data Protection Annex that applies to this Agreement at regular intervals.
- LIMITED WARRANTY: If ThePlasticsFella has supplied physical media to you containing the Licensed Materials and they are defective, such media will be replaced without charge if returned to the place of purchase within 60 days after date of payment of the license fee. EXCEPT AS SET FORTH IN THE FOREGOING SENTENCE, NEITHER THEPLASTICSFELLA NOR ANY OTHER PARTY OR MEDICAL SOCIETY MAKES ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, WITH RESPECT TO THE LICENSED MATERIALS, WHICH ARE LICENSED “AS IS”. ALL OTHER WARRANTIES ARE EXPRESSLY EXCLUDED AND DISCLAIMED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USE OF TRADE. ANY STATEMENTS OR REPRESENTATIONS MADE BY ANY OTHER PERSON OR ENTITY ARE VOID. YOU ASSUME ALL RISK AS TO THE QUALITY, FUNCTION, PERFORMANCE, AND ACCURACY OF THE LICENSED MATERIALS.
LIMITATION OF LIABILITY: IN NO EVENT WILL THEPLASTICSFELLA, ITS AFFILIATES OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PARTY FOR (I) ANY SPECIAL, INDIRECT, INCIDENTAL, RELIANCE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; OR (II) FOR ANY OTHER LIABILITIES ARISING FROM ANY DAMAGES, FINES, COSTS OR EXPENSES, INCLUDING THOSE RELATING TO LOSS, UNAVAILABILITY, CORRUPTION, DISCLOSURE OR MISUSE OF DATA (INCLUDING THAT RELATING TO OR ARISING FROM A PERSONAL DATA BREACH) OR LOSS OF PROFITS, OR FOR INABILITY TO USE THE LICENSED MATERIALS, IN ALL CASES, TO ANY PARTY, EVEN IF THEPLASTICSFELLA, ITS AFFILIATES OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FINES, COSTS, EXPENSES AND OTHER LIABILITIES, OR THE SAME ARE REASONABLY FORESEEABLE. IN NO EVENT SHALL THEPLASTICSFELLA’S, ITS AFFILIATES’ OR ITS LICENSORS’ LIABILITY FOR ANY DAMAGES OR LOSS TO YOU AND/OR ANY OTHER PARTY IN THE AGGREGATE EXCEED THE FEES PAID TO THEPLASTICSFELLA FOR YOUR USE OF THE LICENSED MATERIALS HEREUNDER IN THE TWELVE (12) MONTHS PRECEEDING THE CLAIM.
Some jurisdictions do not allow limitations on how long an implied warranty lasts and some jurisdictions do not allow the exclusion or limitation of certain types of loss, fines, costs, expenses or special, indirect, incidental, exemplary, or consequential damages, so the above limitation and exclusion may not apply to you.
- GENERAL: If any provision of this Agreement is determined to be invalid or unenforceable under any applicable law, it shall be deemed omitted and the remaining provisions shall continue in full force and effect. This Agreement may be modified only in writing authorized by ThePlasticsFella. ThePlasticsFella’s waiver of any right shall not constitute a waiver of that or any other right in the future. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to its principles of conflicts of law or the United Nations Convention on Contracts for the International Sale of Goods. Each party submits to the exclusive jurisdiction of the federal and state courts located in Boston, Massachusetts. This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof, and all prior agreements, representations, statements, and undertakings, oral or written, are hereby expressly superseded and canceled. In addition to any other provision of this Agreement that by its terms survives expiration or termination of this Agreement, Sections 2 and 4-12 survive in full force and effect following expiration or termination of this Agreement.
Should you have any questions regarding this Agreement, you may contact ThePlasticsFella at the email address set forth below.