The Services provided by Kipu Health LLC (“Kipu”) may contain content provided by Clinical Drug Information, LLC dba Medi-Span (“Medi-Span”). As a condition of your accessing of Medi-Span’s services and/or content, Medi-Span requires that you agree to be bound by these additional terms (“Medi-Span Terms”). These Medi-Span Terms are cumulative with, and do not in any way limit, your obligations under your Service Agreement and Kipu Master Terms and Conditions; and, by accessing Medi-Span services and/or content, you are thereby agreeing to these Medi-Span Terms. Any terms or phrases not otherwise defined in these Medi-Span Terms shall have the meaning given to them in your Service Agreement.
1. License Grant
During the term, Medi-Span grants you a limited, non-exclusive, non-transferable license to access and use certain content from the Medi-Span products licensed to Kipu and included within the Kipu Service (“Medi-Span Licensed Products”). This is not a sale of the Medi-Span Licensed Products or of a copy of the Medi-Span Licensed Products. Any use or attempted use of the Medi-Span Licensed Products other than as expressly permitted herein is a material breach of this Agreement. The Medi-Span Licensed Products were developed for use only in the United States and its territories.
2. License Restrictions
You shall not: (a) print in whole or in substantial part the Medi-Span Licensed Products; (b) modify, translate, reverse engineer, decompile, disassemble, or attempt to derive or alter any source code of the Medi-Span Licensed Products or any underlying software; (c) use the Medi-Span Licensed Products to provide service bureau, time sharing, or similar services to third parties, including any parent, subsidiary, or other affiliate of yours unless such use by the parent, subsidiary, or other affiliate is explicitly permitted herein and such parent, subsidiary or other affiliate is bound by the terms of this Agreement; (d) distribute, sublicense, sell, assign, transfer, rent, lease, pledge, or encumber the Medi-Span Licensed Products, or make any attempt to do so; (e) alter, remove, or hinder delivery of any copyright, disclaimer, or proprietary notice appearing in the Medi-Span Licensed Products; (f) take any action compromising the enjoyment and use of the Medi-Span Licensed Products by any other Medi-Span customer; or (g) take any action compromising Medi-Span’s or Kipu’s rights in or to use of the Medi-Span Licensed Products. Redistribution of the Medi-Span Licensed Products in whole or substantial part for any purpose is not permitted, provided that you may print limited portions of the Content contained within the Medi-Span Licensed Products for your internal business use or for distribution to a patient as a written supplement to counseling by that patient’s health care provider.
3. Compliance with Laws
You shall use the Medi-Span Licensed Products and the information contained therein and results derived therefrom, in compliance with applicable federal, state, and local laws, rules, and regulations.
4. No Competitive Products
Under no circumstances shall you use the Medi-Span Licensed Products or information contained therein or results derived therefrom, to develop a product(s) or service(s) in any format similar to, or which could be competitive with the Medi-Span Licensed Products.
You shall not modify, or create a derivative work from, the Medi-Span Licensed Products without the explicit, prior written permission of Medi-Span and Kipu. You assume all liability for any modification made by you, or on your behalf. Medi-Span and Kipu specifically disclaim all warranties of any nature, express and implied, regarding any Medi-Span Licensed Products that you have modified.
Medi-Span will not provide support directly to you; rather all support regarding the Kipu Service will be provided to you by Kipu.
7. Professional Responsibility
Customer acknowledges and agrees that the professional duty to a patient in the provision of healthcare services (including but not limited to the dispensing of drug prescriptions, provision of drug information, substitution of one drug product for another, availability of generic substitutable alternative drug products, providing instruction, and answering questions a patient may have) lies solely with the healthcare professional providing direct patient care or pharmacy services. You acknowledge and agree that clinical information and screening functions in the Medi-Span Licensed Products are intended only as a limited supplement to, and not replacement for, the professional clinical judgment of a healthcare professional. You acknowledge and agree that neither Medi-Span nor Kipu provides medical, pharmaceutical, or other professional advice or patient services in connection with this Agreement or as part of or as a result of the provision of the Medi-Span Licensed Products and have no ability to verify patients’ understanding of their medications and the effects of such medications. You acknowledge that content from the Medi-Span Licensed Products provided to patients: (a) is not a substitute for verbal medication counseling or physical demonstration of an administration technique by a healthcare professional, (b) may be confusing to certain patients when not interpreted by a healthcare professional, and (c) is designed solely to support the verbal information transfer by healthcare professionals and to serve as a non-comprehensive take home reference source for patients or caregivers. Accordingly, you are required to, and will, independently apply your medical, pharmaceutical, or other professional knowledge, expertise, and judgment with respect to determining the correctness, completeness, timeliness, and suitability of the content or function of the Medi-Span Licensed Products for each patient for whom you provide any services or products and, where applicable and within the discretion of the healthcare professional, provide each patient with appropriate, individualized verbal counseling regarding potential relevant health care conditions and the use of, or potential adverse consequences associated with, a particular drug, drug combination, or course of therapy. Therefore, as between you, on the one hand, and Medi-Span on the other hand, you take full responsibility for its use of the content in, and function of, the Medi-Span Licensed Products in patient care.
8. Effect of Termination
Upon expiration or termination of the agreement between Kipu and Medi-Span or this Agreement for any reason, the right to use the Medi-Span Licensed Products granted hereunder terminates. You shall (a) within 30 days cease all use of the Medi-Span Licensed Products; (b) take such steps as are necessary to prohibit further use of the Medi-Span Licensed Products; and (c) furnish a written description of the steps taken if so requested by Medi-Span or Kipu. If so required by law or a regulatory agency, for archival purposes only, you may retain data from the Medi-Span Licensed Products if the data was derived in accordance with this Agreement. Data from the Medi-Span Licensed Products that has been included in a patient’s electronic health record prior to termination may be retained in that electronic health record after termination.
You agree that all right, title, and interest in and to the Medi-Span Licensed Products and all information therein, including all copyrights and other intellectual property inherent therein or appurtenant thereto, are, and at all times shall remain, the sole and exclusive property of Medi-Span. To the extent that you inadvertently or otherwise acquires any rights to the Medi-Span Licensed Products or any portion thereof in a manner not set forth herein, you agree to execute, and to cause its representatives to execute, any assignment agreements or other instruments assigning, transferring, and conveying to Medi-Span all right, title, and interest in and to the Medi-Span Licensed Products, including copyrights and other intellectual property.
You shall treat the Medi-Span Licensed Products as confidential. You shall not share or disclose the Medi-Span Licensed Products to any individual or entity other than as set forth herein and except as necessary to provide services to your patients. If you receive a subpoena or other legal process that requires you to disclose the Medi-Span Licensed Product to a third-party, you shall promptly notify Medi-Span and provide Medi-Span with an opportunity to object to such disclosure prior to disclosing the Medi-Span Licensed Products.
11. No Other Rights
Rights not expressly granted to you herein are reserved to Medi-Span and/or Kipu as may be the case. You shall not have any implied rights in, or to use of, the Medi-Span Licensed Products; rather, all rights applicable to you are expressly set forth in this Agreement.
12. Equitable Relief
You agree that money damages may not be a sufficient remedy for any actual or threatened breach of the provisions of this Agreement by you and that, in addition to all other remedies, Medi-Span is entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach, and you further agree to waive, and to use your best efforts to cause its directors, officers, employees, and agents to waive, any requirement for the proving of actual money damages or securing or posting of any bond in connection with such remedy.
13. DISCLAIMER OF WARRANTIES
MEDI-SPAN RECEIVES DATA AND INFORMATION FROM MANY INDEPENDENT SOURCES, INCLUDING DRUG MANUFACTURERS AND GOVERNMENT AGENCIES. MEDI-SPAN CANNOT, AND DOES NOT, INDEPENDENTLY REVIEW, VERIFY, TEST, OR SUBSTANTIATE THE CONTENT FOR ACCURACY, TIMELINESS, OR COMPLETENESS AND DISCLAIMS ALL RESPONSIBILITY FOR ANY OMISSIONS OR ERRORS THEREIN AND FOR ANY ADVERSE CONSEQUENCES RESULTING THEREFROM. IN ADDITION, THE CONTENT MAY NOT NECESSARILY COVER ALL POSSIBLE USES, DIAGNOSES, TREATMENT OPTIONS, DIRECTIONS, PRECAUTIONS, DRUG INTERACTIONS, DOSAGE LIMITATIONS, LOCAL PRACTICES, OR ADVERSE EFFECTS APPLICABLE TO A PARTICULAR HEALTH CONDITION, DRUG OR TREATMENT OR A PARTICULAR PATIENT. ALTHOUGH THE CONTENT COVERS A WIDE RANGE OF HEALTH CONDITIONS, PRESCRIPTION AND NON-PRESCRIPTION DRUGS AND TREATMENT OPTIONS, IT DOES NOT INCLUDE ALL HEALTH CONDITIONS, DRUGS, VACCINES, DEVICES, AND DIAGNOSTIC AGENTS. ACCORDINGLY, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE ABSENCE OF A WARNING FOR A GIVEN HEALTH CONDITION, DRUG OR DRUG COMBINATION, OR TREATMENT OPTION IS NOT AN INDICATION THAT NO SUCH WARNING MAY BE RELEVANT TO A PARTICULAR PATIENT. MOREOVER, THE CONTENT THAT MAY BE PROVIDED TO YOU OR YOUR AUTHORIZED USERS MAY PROVIDE USEFUL INFORMATION ABOUT HEALTH CONDITIONS, MEDICATIONS, AND TREATMENT OPTIONS, BUT THE CONTENT IS LIMITED AND MAY BE CONFUSING TO CERTAIN PATIENTS WHEN NOT INTERPRETED BY A HEALTHCARE PROFESSIONAL. THE CONTENT IS NOT INTENDED, AND YOU AGREE NOT TO RELY ON, AND AGREES TO INSTRUCT ITS PATIENTS NOT TO RELY ON, THE CONTENT AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL, VERBAL COUNSELING, PHYSICAL DEMONSTRATION OF AN ADMINISTRATION TECHNIQUE, OR JUDGMENT OF PHARMACISTS, PHYSICIANS, OR OTHER HEALTHCARE PROFESSIONALS IN PATIENT CARE. IN LIGHT OF THE FOREGOING, THE MEDI-SPAN LICENSED PRODUCTS ARE FURNISHED BY MEDI-SPAN “AS IS” AND MEDI-SPAN, ITS AFFILIATES, AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE MEDI-SPAN LICENSED PRODUCTS OR ANY SERVICES HEREUNDER AND DISCLAIM ALL IMPLIED REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE ARISING OUT OF OR RELATED TO THIS ADDENDUM, THE MEDI-SPAN LICENSED PRODUCTS, OR RESULTS DERIVED THEREFROM INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS AND WARRANTIES (I) REGARDING COMPREHENSIVENESS, SUITABILITY, AVAILABILITY, COMPATIBILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THE MEDI-SPAN LICENSED PRODUCTS (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE) OR ANY WARRANTY THAT THE CONTENT SATISFIES GOVERNMENT REGULATIONS. NO MEDI-SPAN EMPLOYEE, CONSULTANT, REPRESENTATIVE OR AGENT IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS ADDENDUM.
14. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING IN THIS ADDENDUM TO THE CONTRARY, IN NO EVENT SHALL MEDI-SPAN, ITS AFFILIATES OR ITS LICENSORS, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR YOUR PATIENTS OR ANY THIRD PARTY WHOSE CLAIM IS RELATED TO THIS ADDENDUM OR USE OF THE MEDI-SPAN LICENSED PRODUCTS, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR: (A) DAMAGES OF ANY KIND ARISING OUT OF THE USE OF, ACCESS TO, RELIANCE ON, INABILITY TO USE, OR IMPROPER USE OF THE MEDI-SPAN LICENSED PRODUCTS OR (B) FOR ANY CLAIMS, DAMAGES OR COSTS OF ANY NATURE IN AN AMOUNT EXCEEDING THE LICENSE FEES ATTRIBUTABLE TO THE MEDI-SPAN LICENSED PRODUCTS PAID BY YOU TO PRACTICE FUSION DURING THE TWELVE (12) MONTHS PRECEDING THE EARLIEST EVENT GIVING RISE TO SUCH SPECIFIC INSTANCE OF LIABILITY. IN NO EVENT WILL MEDI-SPAN, ITS SUBSIDIARIES OR AFFILIATES, OR ANY OF ITS OR THEIR SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR YOUR PATIENTS OR ANY THIRD PARTY WHOSE CLAIM IS RELATED TO THIS ADDENDUM, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA, BUSINESS, OR GOODWILL), REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY AS WELL AS THE DISCLAIMERS SET FORTH HEREIN ARE INDEPENDENT OF ANY REMEDIES SET FORTH HEREIN AND WILL SURVIVE AND APPLY EVEN IF SUCH REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS A MATERIAL PART OF THE CONSIDERATION PROVIDED BY YOU IN EXCHANGE FOR THE RIGHTS YOU HAVE BEEN GRANTED HEREUNDER.
You shall defend, indemnify and hold harmless Medi-Span and its licensors and affiliates and their respective officers, directors, employees, contractors and agents, from all claims, damages, liabilities, and expenses (including reasonable attorneys’ fees and court costs) arising out of, connected with, or resulting in any way from any third party action, claim, or any other assertion of a legal right (including by a government entity), even if the claim is groundless, fraudulent, or false, in connection with, resulting from, arising out of, or relating to, your: (a) use of the Medi-Span Licensed Products; (b) provision of any content from the Medi-Span Licensed Products to patients or other third-parties by you; or (c) modification made to the Medi-Span Licensed Products by you. If you are a governmental entity subject to statutory limitations that apply to this section, you shall provide the indemnifications to the full extent permitted by the statutory limitations but not in violation of such limitations. In the event of an action subject to indemnification hereunder, you shall provide written notice to Medi-Span in a timely manner after you receive actual notice of the existence of a claim. You shall have the right, at your expense, to employ counsel reasonably acceptable to Medi-Span to defend the claim, and to compromise, settle or otherwise dispose of the claim; provided, however, that no compromise or settlement of any claim admitting liability of or imposing duties or restrictions upon Medi-Span may be effected without the prior written consent of Medi-Span. Medi-Span will cooperate in such action by making available to you, at your expense, records reasonably necessary for the defense of the claim.