1.
License from WKH.
Subject to the terms of this Agreement,expressly reserved by and to WKH, and Requester shall not,WKH grants to Requester, and Requester hereby accepts, a limited,exercise any rights in or to the Service, except to the extent,terminable, revocable, nontransferable, nonexclusive,explicitly stated in this Agreement.,nonsublicenseable license to access and use (only as provided in,this Section 1) the Content and Site, only in accordance with this3.
Proprietary Rights.
As between WKH and the Requester, the,Agreement.
Requester may use the Site only in the connection withContent, Site Content, and all rights, including without limitation,,accessing, viewing, or using the content, material, or servicesIntellectual Property Rights (defined below), title, and interest,available on or through the Site and may use the materialstherein and thereto lie exclusively with WKH or its partners.
This,provided on or by the Service only in connection with internalAgreement is not an agreement of sale, and no title, interest, or,business purposes and only in accordance with this Agreement.Intellectual Property Rights or other ownership rights to the,WKH’s Web Terms and Conditions [http://journals.lww.com/Content or Site are transferred to Requester pursuant to this,_layouts/oaks.journals/terms.aspx] is incorporated into Agreement, except as explicitly stated herein.
Requester,this Agreement by reference, as if set forth fully herein.acknowledges that the restrictions in this Agreement are reasonable,2.
Prohibited Uses.“Intellectual Property Rights” means any and all intellectual,a.
Only one individual may access a Service at the same timeuniverse, in all media, now existing or created in the future, and for,using the same user name or password, unless WKH agrees inthe entire duration of such rights) arising under statutory or,writing otherwise.common law, contract, or otherwise, and whether or not perfected,,b.
The text, graphics, images, video, data, design, organization,authorship including, but not limited to, copyrights, copyright,compilation, look and feel, advertising and all other protectableapplications, copyright registrations, and rights to prepare,intellectual property (the “Content”) available through the Site andderivative works.
(b) rights in trademarks, service marks, trade,in the Content are the property of WKH or the property of itsnames, logos, symbols, and the like.
(c) rights analogous to those,advertisers and licensors and are protected by copyright and otherset forth in this definition and any and all other proprietary rights,intellectual property laws.
Unless Requester has WKH’s writtenrelating to intangible property.
and (d) rights to sue for past,,consent, Requester may not, nor shall it permit any third party to,present, and future infringement of any and all such intellectual,sell, publish, modify, adapt, translate, create derivative worksproperty rights and industrial property rights.
Without limiting the,based upon, distribute, retransmit or otherwise provide access togenerality of the foregoing, except as otherwise required under this,the Content received through the Site or in the Content to anyone.Agreement, Requester shall not use, and shall not permit the use,c.
Unless Requester has WKH’s written consent, Requester agreesservice marks, or other identifiers, in any manner without WKH’s,not to rearrange or modify the Content.
Requester agrees not toprior written approval.
Requester shall promptly notify WKH if,create abstracts from, scrape or display Content for use on anotherRequester learns of any unauthorized use of any Content, Content,,web site or service.
Requester agrees not to post any content fromthe Site, or Intellectual Property Rights.
Requester shall provide all,the Service to weblogs, newsgroups, mail lists or electroniccooperation and assistance requested by WKH in connection with,bulletin boards, without our written consent.or related to WKH’s efforts to protect its or its partners Intellectual,d.
Except as expressly permitted above, Requester shall not do,,nor shall it permit any third party to do, any of the following: (a)The parties each acknowledge that any breach of Section 2 will,remove, erase, or tamper with any copyright or other proprietaryirreparably harm WKH or its partners and that WKH or its partners,notice printed or stamped on or affixed to the Content or the Site,would not have an adequate remedy at law for such breach.,or fail to preserve all copyright and other proprietary notices on theRequester agrees and consents that in the event of such breach,,Content or on any material contained on the Site.
(b) refer to orWKH shall be entitled, without posting bond, in addition to all,otherwise use any Service as part of any effort to develop a serviceother rights and remedies to which WKH may be entitled, to have,having any functional attributes, content, visual expressions ora decree of specific performance or an injunction issued requiring,other features similar to those of the Service or to compete withany such violation to be cured and enjoining all persons involved,WKH.
(c) use the Service to provide, alone or in combination withfrom continuing the violation.
The existence of any claim or cause,any other product or service, any product or service to any person,of action that Requester or any other person may have against,whether on a fee basis or otherwise.
(d) re-engineer, reverseWKH shall not constitute a defense or bar the enforcement of this,engineer, decompile, or disassemble the Service.
or (e) attempt toSection 3.
Requester acknowledges that the restrictions in this,do any of the foregoing.
Any and all rights in and to the Service,Section 3 are reasonable and necessary to protect legitimate,not explicitly granted to Requester under this Agreement, are business interests of WKH.,and necessary to protect WKH’s legitimate business interests.,property rights and industrial property rights (throughout the,including without limitation, all (a) rights associated with works of,of, any of WKH’s names, slogans, symbols, logos, or other trade or,Property Rights.,END USER LICENSE AGREEMENT,THIS END USER LICENSE AGREEMENT (“Agreement”) governs your use of content, images, video, and other proprietary,materials provided by Wolters Kluwer Health, Inc.
(“WKH”) under this Agreement made available by or accessed by you (“Content”), your use,of the and access to the Content in connection with the World Wide Web Site located at http://journals.lww.com (“Site”) (collectively, Content,and Site shall mean “Service”).,THE PURPOSE OF THE SITE, THE CONTENT, AND THE AGREEMENT IS TO ALLOW WKH TO DELIVER THE,SERVICE TO YOU AS REQUESTER IN ELECTRONIC FORM.
TO USE OR ACCESS THE SITE OR CONTENT, YOU,MUST AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT BY,CLICKING “I ACCEPT” WHERE INDICATED.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS,,YOU HAVE NO RIGHT OR AUTHORITY TO ACCESS OR USE THE CONTENT OR SITE OR EXERCISE ANY OTHER,RIGHT IN CONNECTION THEREWITH.,132423.00100/11927074v.2,attorneys’ disbursements) arising out of or incurred in connection4.
Disclaimers.
NEITHER WKH NOR ANY OTHER THIRD,with (a) any actual or alleged breach of this Agreement or use ofPARTY PARTNERS OF WKH MAKE ANY,the Service by Requester, or its directors, officers, customers,REPRESENTATIONS OR WARRANTIES, ORAL OR,employees, agents, representatives, or contractors, and (b)WRITTEN, EXPRESS OR IMPLIED, INCLUDING IMPLIED,Requester’s fraud, negligence, or willful misconduct in connectionWARRANTIES OF TITLE, NON-INFRINGEMENT,,with this Agreement or its use of or access to the Service.MERCHANTABILITY AND FITNESS FOR A PARTICULAR,Requester assumes the sole responsibility for the selection ofPURPOSE, REGARDING THE SERVICE OR ANY OTHER,materials or Content from the Site to achieve Requester’s intendedMATTER PERTAINING TO THIS AGREEMENT.
WKH IS,results, the use of the Service, and the results attained from suchNOT RESPONSIBLE FOR BUSINESS DECISIONS,,selection and use.
Requester shall defend Indemnitees, atDAMAGES OR OTHER LOSSES RESULTING FROM USE OF,Requester’s sole cost and expense, against any and all ClaimsTHE SERVICE AND ANY OTHER PRODUCT, SERVICE,,against Indemnitees arising from or related to Requester’s selectionMATERIAL, OR INFORMATION OFFERED BY WKH UNDER,or use of materials from the Service whether or not such use is inOR IN CONNECTION WITH THIS AGREEMENT ARE,accordance with this Agreement and shall indemnify and holdOFFERED “AS IS” AND “WITH ALL FAULTS.” WKH,Indemnitees harmless from any and all judgments, losses,MAKES NO REPRESENTATIONS OR WARRANTIES, AND,liabilities, damages, costs, and expenses (including withoutDISCLAIMS ALL REPRESENTATIONS AND WARRANTIES,,limitation, reasonable attorney’s fees and attorney’s disbursements)WITH RESPECT TO THE SERVICE AND ANY OTHER,arising out of or incurred in connection with such Claims.
WKHPRODUCT, SERVICE, OR INFORMATION OFFERED BY,shall have the right to control the settlement of any Claims withWKH UNDER OR IN CONNECTION WITH THIS,respect to which it is entitled to indemnification hereunder.AGREEMENT, OR THE PRESENT OR FUTURE,7.
Third Party Materials, Products and Services.
The Service isWKH FOR PROVIDING THE SERVICE, EXPRESS OR,available for informational purposes only.
Use of the Service andIMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE,any other material or content on and made available through theOF DEALING, COURSE OF PERFORMANCE, USAGE OF,Service is entirely at Requester’s own risk.
WKH expresslyTRADE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED,disclaims any and all responsibility for or related to the materials,TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,,products or services provided by third parties or the transactionsFITNESS FOR A PARTICULAR PURPOSE, ACCURACY,,you conduct or enter into with third parties.
Additionally, the SiteNON-INTERFERENCE, QUALITY, TITLE, NONINFRINGE-,may, from time to time, contain links to other Internet Web sitesMENT, OR THAT THE SERVICE WILL BE TIMELY, SECURE, ,for the convenience of users in locating information, products, orUNINTERRUPTED OR ERROR-FREE, FREE FROM VIRUSES ,services that may be of interest.
WKH expressly disclaims any andOR OTHER HARMFUL COMPONENTS, OR MEET REQUEST-,all responsibility for the content, the accuracy of the information,ER’S REQUIREMENTS.,or quality of products or services provided by or advertised on,these third-party sites.5.
Limitation of Liability.
NEITHER WKH NOR ITS THIRD,8.
Term and Termination.
This Agreement shall govern any andSPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL,,all access to the Service, at any time and from any location.
ThisEXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE,Agreement, and all licenses hereunder, shall automaticallyDAMAGES OF ANY KIND WHATSOEVER, INCLUDING,,terminate without notice upon expiration or termination ofWITHOUT LIMITATION, LOST REVENUES OR LOST,Requester’s account with WKH.
WKH may terminate thisPROFITS, WHICH MAY OR DO RESULT FROM OR RELATE,Agreement immediately by giving notice of termination toTO THE USE OF, ACCESS TO, OR INABILITY TO USE THE,Requester, and without prejudice to any other rights or remediesSERVICE OR ANY OTHER PRODUCTS, SERVICES,,WKH may have.
Upon the expiration or termination of thisMATERIALS, AND INFORMATION OFFERED BY WKH,Agreement, whether under this Section or otherwise, RequesterUNDER OR IN CONNECTION WITH THIS AGREEMENT, OR,shall cease all use of and access to the Service.
Sections 2, 3, 5, 6,THE FAILURE OF WKH TO PROVIDE THE SERVICE FOR,10, and 16 survive any expiration or termination of thisANY REASON AT ANY TIME, REGARDLESS OF LEGAL,Agreement.THEORY, WHETHER OR NOT ANY PARTY HAD BEEN,9.
Your Account.
Registration data and other information SUCH DAMAGES, AND EVEN IF THE REMEDIES,about you are subject to our Privacy StatementOTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL,[http://journals.lww.com/_layouts/oaks.journals/privacy.aspxPURPOSE.
UNDER NO CIRCUMSTANCES WILL THE,], which is incorporated into this Agreement by reference, as if setTOTAL LIABILITY OF WKH TO REQUESTER OR ANY,forth fully herein.
If you access a Service using a password, youOTHER PERSON OR ENTITY IN CONNECTION WITH,,are solely responsible for maintaining the confidentiality of thatBASED UPON, OR ARISING FROM THE SERVICE OR ANY,password.OTHER PRODUCTS, SERVICES, MATERIALS, AND,10.
Fees and Payments.
You agree to pay the fees and any otherCONNECTION WITH THIS AGREEMENT EXCEED, IN THE,charges incurred in connection with your use of the ServiceAGGREGATE, THE TOTAL OF ALL AMOUNTS PAID BY,(including any applicable taxes) at the rates in effect when theREQUESTER TO WKH OR ITS AGENTS DURING THE SIX-,charges were incurred.
WKH will bill all charges automatically toMONTH PERIOD PRECEDING THE DATE THE EVENTS,your credit card.
Unless WKH states in writing otherwise, all feesGIVING RISE TO THE LIABILITY AROSE.,and charges are nonrefundable.
WKH may change the fees and,charges then in effect, or add new fees or charges, by giving you6.
Indemnification.
Requester shall indemnify and hold,notice in advance.
If your access to the Service is provided by, orharmless WKH and its directors, officers, employees, agents, and,through a third party, or if you have paid for access to the Servicecontractors (“Indemnitees”) from and against all actions, suits,,in connection with your purchase or subscription to a WKHhearings, and other proceedings of third parties and of WKH,product or publication, some or all of the “Fees and Payments”(“Claims”), and all judgments, losses, obligations, risks, awards,,terms may not apply to you.
Please contact the third party forsettlements, compromises, liabilities, damages, costs, and expenses,details.(including without limitation, reasonable attorneys’ fees and,METHODOLOGY, PROCESS, OR METHOD EMPLOYED BY,PARTY PARTNERS SHALL BE LIABLE FOR ANY DIRECT,,ADVISED OF THE POSSIBILITY OR PROBABILITY OF,INFORMATION OFFERED BY WKH UNDER OR IN,132423.00100/11927074v.2,this Agreement supersedes any and all prior oral or written11.
Compliance with Laws.
Requester shall comply with all,communications, proposals, representations, and agreements.applicable laws and regulations.,Except as otherwise provided in this Agreement, this Agreement,may be amended only by mutual agreement expressed in writing12.
Assignment.
Requester may not sublicense, assign, or,and signed by both parties, and any attempted amendment intransfer this Agreement, or any rights and obligations under this,violation of this Section shall be void.
Section headings are forAgreement, in whole or in part, without WKH’s prior written,reference only and shall not affect the interpretation of thisconsent.
Any attempted assignment in violation of this Section 12,Agreement.
The waiver or failure of either party to exercise in anyshall be void.,respect any right provided under this Agreement shall not be,deemed a waiver of such right in the future or a waiver of any13.
Independent Contractor.
WKH and Requester are each,other rights established under this Agreement.
The parties do notindependent contractors and neither party shall be, nor represent,intend, nor shall any clause be interpreted, to create under thisitself to be, the franchiser, partner, broker, employee, servant,,Agreement any obligations of WKH in favor of, benefits to, oragent, or legal representative of the other party for any purpose,rights in, any third party.
Should any term or provision of thiswhatsoever.
Neither party is granted any right or authority to,Agreement be held to any extent unenforceable, invalid, orassume or create any obligation or responsibility, express or,prohibited under law, then such provision shall be deemed restatedimplied, on behalf of, or in the name of, the other party, or to bind,to reflect the original intention of the parties as nearly as possiblethe other party in any manner or thing whatsoever.
The parties do,in accordance with applicable law and the remainder of thisnot intend to form a partnership or joint venture as a result of this,Agreement.Agreement.,14.
Not Medical Advice.
We are not a health care provider.
No,information provided to Requester should be construed as medical,advice and/or treatment.
No physician/patient relationship is,created between WKH and Requester or any other person by,reason of your use of the Service or under any circumstances.
Any,inquiries or concerns about health-related matters should be,addressed to a physician or other medical professional.
It is,Requester’s responsibility to understand and follow the course of,treatment prescribed by any health care professional.
Some drugs,and medical devices described on this Site have Food and Drug,Administration (FDA) clearance for limited use in restricted,research settings and to treat only specifically approved medical,conditions.
It is the responsibility of the health care provider to,ascertain the FDA status of each drug or device planned for use in,their clinical practice.
WKH does not endorse or suggest any,particular medical tests, pharmaceutical products, physicians or,other health providers, products, or medical procedures WKH may,detail or describe on this Site.
Requester’s reliance on any,information provided by this Site is solely at Requester’s own risk.,15.
Notices.
WKH may give notice by means of a general notice,on the Site, electronic mail to your e-mail address on record in,WKH’s account information, or by written communication sent by,first class mail or pre-paid post to your address on record in,WKH’s account information.
Such notice shall be deemed to have,been given upon the expiration of 48 hours after mailing or posting,(if sent by first class mail or pre-paid post) or 12 hours after,sending (if sent by email).
Requester may give notice to WKH,(such notice shall be deemed given when received by WKH) at any,time by sending an email to CustomerService@lww.com.,16.
Modification to Terms.
WKH reserves the right to modify the,terms and conditions of this Agreement or its policies relating to,the Service at any time, effective upon posting of an updated,version of this Agreement on the Site.
Requester is responsible for,regularly reviewing this Agreement.
Continued use of the Service,after any such changes shall constitute Requester’s consent to such,changes.,17.
General.
This Agreement shall be governed exclusively by,the laws of the Commonwealth of Pennsylvania, without regard to,conflicts of laws provisions, and the exclusive jurisdiction and,venue for any and all disputes arising out of this Agreement or,related to the Service are in the state and federal courts located in,Philadelphia, Pennsylvania.
EACH PARTY IRREVOCABLY,WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN,ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED,TO THIS AGREEMENT.
This Agreement constitutes the,complete and exclusive statement of the agreement between the,parties with respect to the subject matter of this Agreement, and,132423.00100/11927074v.2