DATABASE LICENSE TERMS AND CONDITIONS
DATABASE LICENSE TERMS AND CONDITIONS (this "Agreement") is made and entered into by and between Natural Medicines, a Delaware corporation with mailing address One Davis Square, Somerville, MA 02144 ("Natural Medicines"), and you, as a user having access to certain proprietary databases of Natural Medicines ("you" or "User"):
WHEREAS, Natural Medicines is in the business of, providing an array of on-line services, including content, expert advice, chat areas, referral services, practitioner licensing information, herb-drug interaction searching, and CME online courses in the field of complementary and alternative medicine;
WHEREAS, you wish to gain access to certain proprietary databases of Natural Medicines for certain limited purposes;
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1 DATABASE LICENSE
1.1. License. Effective from the date of your agreement to the terms hereof, Natural Medicines hereby grants you, subject to the terms and conditions of this Agreement, a nonexclusive, nontransferable, revocable right and license:
(a) To access, as an Authorized User (as hereinafter defined), on a password or IP address restricted basis, certain herb, supplement, and modalities databases of Natural Medicines (the "Databases") solely in connection with your teaching or research activities;
(b) In connection with the foregoing, to create on-line or off-line printouts of information retrieved from the Databases, and reproduce, reformat, analyze, print and display such printouts, or, to download and store, in machine-readable form, insubstantial portions of such materials as included in any individual file accessed by you, solely in connection with the your teaching or research activities.
You may not, however, engage in such activity if it is for commercial sale, redistribution, broadcast or transfer, and/or, if it is for use in a searchable, machine-readable database, and/or, if it is otherwise not a "fair use" under the Copyright Act of 1976.
Except as expressly authorized in this Agreement, you agree not to rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify, store, or time-share the Databases or modify, disable, attempt to circumvent, or otherwise interfere with any security, copy protection or similar feature of the Databases (and you acknowledge that any attempt to do so may be a violation of applicable law). You agree to take all reasonable steps to protect the Databases from unauthorized access, copying, or use. Natural Medicines reserves all rights not expressly granted to you and the other Authorized Users. All rights conferred upon you pursuant to this Section 1 shall cease upon termination of this Agreement.
1.2. Passwords; Authorized Users. Unless expressly approved in writing by Natural Medicines in advance, a password is valid for use only by you and only in the country in which it is issued. Passwords are subject to cancellation or suspension by Natural Medicines at any time, including upon nonuse for such period as Natural Medicines may determine. "Authorized Users", as used herein, shall mean solely individual faculty and students directly affiliated with an institution affiliated with, and licensed to use the Databases by, Natural Medicines, who are teaching or conducting research at that institution, who have been issued valid login passwords by Natural Medicines, and who have agreed to the terms of this Agreement.
1.3. Reserved Rights. Natural Medicines retains ownership of the Databases and reserves the right, for itself and others of its choosing, to use and distribute the Databases for all purposes.
Section 2 PROPRIETARY PROTECTION
2.1. Ownership of Databases. As between the parties hereto, Natural Medicines shall be the sole owner of the Databases, including any copyrights or trade secrets associated with the Databases.
2.2. Notice Requirements. You shall follow Natural Medicines' reasonable requirements with respect to notices and legends that Natural Medicines may require you to include in any copies, extracts, etc. derived from the Databases.
2.3. Infringement. In the event that you discover an instance of possible infringement of Natural Medicines' rights in the Databases, you shall promptly notify Natural Medicines. The parties shall consult with one another with respect to the action that may be appropriate to stop or remedy such infringement.
2.4. Confidential Information. You understand and acknowledge that the products and data of Natural Medicines are subject to protection as copyrighted works of authorship under the United States Copyright Act, and represent valuable confidential information of Natural Medicines entitled to protection as trade secrets. Further, you understand and acknowledge that any confidential information pertaining to Natural Medicines' customers, finances, and internal operations which is disclosed hereunder (collectively with Natural Medicines' products and data, the "Confidential Information") represent valuable confidential information of Natural Medicines entitled to protection as trade secrets. You shall keep confidential, and shall protect from unauthorized disclosure, the Confidential Information and all copies or physical embodiments thereof in your possession. You shall use the Confidential Information only for purposes provided for under this Agreement, and shall limit access to such Confidential Information Authorized Users who require such access in connection with your use thereof as permitted by this Agreement. You shall secure and protect the Confidential Information and any and all copies and other physical embodiments thereof in your possession in a manner consistent with the maintenance of Natural Medicines' rights and interest therein. The obligations of this Section 2.4 shall not apply to any information which is (a) generally known to the public, or becomes so known other than by reason of a breach by you of your obligations hereunder; (b) was known to you prior to its disclosure by Natural Medicines hereunder; or (c) is learned by you from a third party who is not in breach of an obligation of confidentiality in making such disclosure, or (d) is required to be disclosed pursuant to an administrative, judicial or governmental hearing.
Section 3 LIMITATIONS; DISCLAIMER
It is mutually acknowledged that data entry, communication and storage are subject to a possibility of human and machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media, which may give rise to loss or damage. Neither party hereto undertakes any liability to the other for any such errors, omissions, delays, or losses. Natural Medicines makes no warranty as to the accuracy of the Databases or the results to be obtained from their use. NATURAL MEDICINES MAKES AND YOU RECEIVE NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION, REGARDING THE DATABASES, AND NATURAL MEDICINES SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY REPRESENTATION OR WARRANTY REGARDING NON-INFRINGEMENT OF ANY RIGHTS OF ANY THIRD PARTY. NEITHER PARTY UNDERTAKES OR ACCEPTS ANY LIABILITY WHATSOEVER TO THE OTHER FOR ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS, OR LOSSES, RELATED TO THE USE OF THE DATABASES HEREUNDER OR OTHERWISE, UNLESS CAUSED BY THEIR WILLFUL MISCONDUCT.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE LICENSES GRANTED HEREBY.
Section 4 TERM
Your license under this Agreement is effective until expiration of termination. You or Natural Medicines may terminate this Agreement at any time for any reason or no reason. Upon any such termination or expiration, you must discontinue all use of the Databases and immediately return or destroy all tangible copies of any portion thereof. Sections 2 and 3 shall survive any termination or expiration of this Agreement and shall remain in effect in accordance with their terms.
Section 5 MISCELLANEOUS
5.1. Force Majeure. Neither party shall be liable or be deemed to be in default for any delay or failure in performance or interruption resulting directly or indirectly from any cause or circumstance beyond its reasonable control, equipment or telecommunications failure, labor dispute, or failure of any third party to perform any agreement that adversely affects such party's ability to perform its obligations hereunder.
5.2. Modifications and Waivers. A waiver by either party of its rights hereunder shall not be binding unless contained in a writing signed by an authorized representative of the party waiving its rights. The nonenforcement or waiver of any provision of this Agreement on one occasion shall not constitute a waiver of such provision on any other occasion unless expressly so agreed in writing. It is agreed that no use of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.
5.3. Assignment; Binding Effect. Neither party may assign this Agreement in whole or in part without the prior written consent of the other party, except that either party may assign its rights under this Agreement without the written consent of the other party to an affiliate or to any third party which succeeds to substantially all of the assets and business of the assigning party. Subject to the foregoing, this Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors and assigns.
5.4. No Implied Rights or Obligations. Nothing in this Agreement is intended to create any implied right to require, or any implied duty to provide, a level of effort or results (in general or in particular) not expressly stated herein, or to refrain from engaging in any other activity, including any activity involving the same or similar products or services with the same or similar customers or providers.
5.5. Relationship of Parties. The relationship of the parties hereto shall be that of independent contractors. Nothing herein shall be construed to create any partnership, joint venture, or similar relationship or to subject the parties to any implied duties or obligations respecting the conduct of their affairs that are not expressly stated herein. Neither party shall have any right or authority to assume or create any obligation or responsibility, either express or implied, on behalf of or in the name of the other party, or to bind the other party in any matter or thing whatsoever.
5.6. Severability. The terms and conditions of this Agreement are severable. If any term or condition of this Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms shall remain in force. Further, the term or condition which is held to be illegal or unenforceable shall remain in effect as far as possible in accordance with the intention of the parties.