Corporate Subscription Terms & Conditions
Last Modified: Jul. 11, 2024
This agreement governing expanded institutional access to Drug Hunter was prepared by top tier law firms, Perkins Coie LLP and Honigman LLP, specifically with the needs of biotech and pharma companies in mind. A guide to the Subscription Services Agreement for procurement and legal teams can be found here.
The general Drug Hunter website Terms & Conditions can be found here. The Privacy Policy can be found here.
THESE SUBSCRIPTION SERVICES TERMS AND CONDITIONS TOGETHER WITH THE APPLICABLE QUOTE OR ORDERING DOCUMENT (COLLECTIVELY, THE “AGREEMENT”) GOVERNS CUSTOMER’S ACQUISITION AND USE OF DRUG HUNTER’S SUBSCRIPTION SERVICES TO THE CONTENT ON DRUG HUNTER’S PLATFORM, WEBSITE AND OTHER DIGITAL PRODUCTS AND SERVICES (COLLECTIVELY, THE “SERVICES”). CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING THE “I ACCEPT” OR “I AGREE” BOX OR ANY OTHER BOX INDICATING ACCEPTANCE, (2) PURCHASING OR PLACING AN ORDER FOR THE SERVICES, (3) USING THE SERVICES ON A TRIAL OR PILOT BASIS, OR (4) SIGNING A QUOTE OR ORDER FORM, PHYSICALLY OR ELECTRONICALLY, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE LIMITED WARRANTY SET FORTH IN SECTION 9.1, AND THE MANDATORY ARBITRATION PROVISION AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CLASS ACTION WAIVER IN SECTION 11.6.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A LEGAL ENTITY OR AN ORGANIZATION, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY OR ORGANIZATION TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” REFERS TO SUCH ENTITY OR ORGANIZATION. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Drug Hunter’s direct competitors are prohibited from accessing the Services, except with Drug Hunter’s prior written consent.
This Agreement was last updated on July 11, 2024. It is effective between Customer and Drug Hunter as of the date of Customer’s accepting this Agreement (the “Effective Date”).
1. DEFINITIONS
1.1. “Admin Console” means the online console(s) and tool(s) provided by Drug Hunter to Customer for administering the Services.
1.2. “Administrators” mean the Customer-designated technical personnel who administer the Services on Customer’s behalf.
1.3. “Affiliate” means an entity that controls, is controlled by, or is under common control with a Party. For the purposes of this definition, “control” and its cognates mean direct or indirect ownership of more than 50% of the voting interests of the applicable Party.
1.4. “Claim” means any claim, action, proceeding, or suit.
1.5. “Content” means the articles, analyses, summaries, text, graphics, search capabilities, databases, images, video and audio content, artwork, metadata and other data, design, organization, compilation, look and feel, and all other content and protectable intellectual property, including any copyrights, trademarks, service marks, trade names, trade dress, patent rights, or database rights available through the Services.
1.6. “Customer” means the legal entity or organization accepting this Agreement, or in the case of an individual accepting this Agreement on behalf of a legal entity or an organization, the legal entity or organization for which such individual is accepting this Agreement.
1.7. “Customer Data” means any identifying information (such as name, email address, employee ID number, or other identifying information designated by Customer) of an applicable User that is provided by Customer to Drug Hunter.
1.8. “Drug Hunter” means Drug Hunter, Inc., a Delaware corporation.
1.9. “Law” means all laws and regulations, including state and federal laws and regulations, binding orders, and ordinances, applicable to such Party in its performance of this Agreement, including privacy laws and regulations governing such Party and its data privacy practices.
1.10. “Parties” means collectively, Drug Hunter and Customer.
1.11. “Party” means either Drug Hunter or Customer.
1.12. “Post” and its cognates means upload, post, submit, send, create, share, store, publish, display, or transmit
1.13. “User” means a Customer’s or its Affiliates’ personnel who are authorized to use the Services under Customer’s account, including employees, consultants, contractors, and agents of Customer or its Affiliates.
2. DRUG HUNTER SERVICES
2.1. Access to Services and Content. Subject to Customer’s continuing compliance with its obligations set forth in this Agreement, and while this Agreement remains in effect: (a) Drug Hunter will provide access to the Services to: (i) each User authorized under this Agreement pursuant to (and subject to such User complying with) the then-current “Terms and Conditions” set forth on the website for the Services; and (ii) access to the Admin Console for the Administrator(s) to manage Customer’s use of the Services (and each User’s ability to access the Services, if applicable); and (b) Customer may access and use, solely for its internal business purposes and not for commercialization, the Content in accordance with Drug Hunter’s acceptable use policy set forth in Exhibit A attached hereto and incorporated by this reference, as may be updated by Drug Hunter in its sole discretion from time to time; in each case, in accordance with the provisions of this Agreement. Drug Hunter may revise and update this Agreement from time to time in Drug Hunter’s sole discretion. All changes are effective immediately when Drug Hunter posts them, and apply to all access to and use of the Services thereafter. Customer will, at Drug Hunter’s option, return or destroy any full or partial copies of Content that Customer has downloaded, stored, created, printed, or otherwise obtained. Drug Hunter reserves the right in its sole discretion to withdraw or make changes to the Services and Content at any time.
2.2. Eligibility. Customer may designate a User as being eligible to access the Services by: (a) providing Drug Hunter with a monthly report (in a format acceptable to Drug Hunter) identifying such Users; (b) uploading the User information directly via the Admin Console; (c) enabling single sign-on functionality for such User; or (d) such other methods as agreed upon by the Parties. Customer will provide all notices and obtain all consents as required by Law to share the Customer Data with Drug Hunter for Drug Hunter’s processing in accordance with the Agreement.
2.3. Use and Access Restrictions. Customer will not: (a) make the Services or Content available to, or use the Services or Content for the benefit of, anyone other than Customer; (b) license, sublicense, sell, resell, time share, lease, rent, distribute (except as permitted herein), or similarly exploit the Services or Content; (c) reverse engineer, modify, adapt, or hack the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (d) access or use parts of the Services or Content to which Customer is not authorized, or attempt to circumvent any restrictions imposed on Customer’s use or access of the Services or Content; (e) access or use the Services or Content (including any portion, feature, function, or user interface thereof), in whole or in part, to build a competitive product or service; (f) create apps, extensions, or other products or services that use Content without our permission; (g) delete or alter any copyright, trademark, or other proprietary rights notices provided with or from the Services or Content; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or the components of the Services; (i) introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful to the Services; or (j) use any automated scripts, data mining, robots, or similar data gathering or extraction methods to collect information from or otherwise interact with the Services or the Content.
2.4. Admin Console and User Accounts. Customer may use the Admin Console to specify one or more Administrators who will have the right to access the Admin Console and to manage the Services. Customer will protect its Admin Console username and passwords (“Account Information”) from unauthorized access or use and is responsible for all activities in the Services performed using its Account Information. Drug Hunter’s responsibilities do not extend to the internal management or administration of the Services for Customer. All Users must be affiliated with the legal entity or organization that is entering into this Agreement. Only one individual may access a Service at the same time using the same username or password, unless Drug Hunter agrees otherwise. The direct sharing of individual User accounts is not permitted, and the indirect sharing of individual User accounts through forwarding mechanisms or other means is also not permitted. For seat-based plans, usernames for User accounts must be assigned to unique, named individuals, and the creation of generic usernames, such as “chemistrylibrary@” or “medchem@” is prohibited. Individual seats may be reassigned as needed through the Admin Console a reasonable number of times during the Term (e.g. once per quarter per User), but may not be split or shared amongst multiple Users within a single month.
2.5. Reasonableness of Use. Drug Hunter may monitor the volume of activity of Customer’s User group on a regular basis, for the purposes of (i) benchmarking “average” use, noting any significant variance in patterns of usage of Customer’s User group or particular Users, and (ii) ensuring compliance with this Agreement. Drug Hunter may ask Customer and its Administrators to discuss with Drug Hunter any usage pattern(s) Drug Hunter questions and, if necessary, work with Drug Hunter to reach a solution if a problem is uncovered. If Drug Hunter determines that use is excessive (e.g. systematic repeated access via bots or automated tools) or violates this Agreement, Drug Hunter may (i) deactivate the User accounts at issue and bar the User(s) from using the Services, or (ii) terminate access to the Services entirely. Drug Hunter prefers to resolve these types of issues without resorting to measures such as account deactivation, and will use commercially reasonable efforts to do so. For the purposes of this section, “excessive” shall include (i) use, search, download and/or export activity that is materially greater than, or different from, typical use patterns of activity by customers, and/or (ii) activity that is indicative of automation of an otherwise manual process.
2.6. Third-Party Content. Drug Hunter may provide information about third-party products, services, activities, content, or events, or Drug Hunter may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). Drug Hunter provides Third-Party Content as a service to those interested in such content. Customer’s dealings or correspondence with third parties and Customer’s use of or interaction with any Third-Party Content are solely between Customer and the third party. Drug Hunter does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and Customer’s access to and use of such Third-Party Content is at Customer’s own risk.
3. COMPENSATION & PAYMENT
3.1. Fees and Usage Limits. By signing up for, purchasing, or otherwise placing an order for the Services or upon exceeding any credit, user, usage, or other limits, Customer’s chosen payment method will be charged for the Services, administrative, credit, usage, and other fees and any applicable taxes, charges, levies or other assessments imposed by any domestic or foreign taxing authority for the Services or Users (collectively, “Fees”). Customer will pay Drug Hunter all Services, credit, user, usage, and other costs, fees, expenses, and charges (collectively, “Fees,” in accordance with the payment terms set forth on the order form or invoice issued by Drug Hunter, unless the Parties agree to a different period. The Fees do not include taxes. Drug Hunter may establish, limit, revoke, and otherwise change credit, User, usage, or other limits and terms at any time, in Drug Hunter’s sole discretion, with or without notice to Customer. If Customer exceeds any credit, User, usage, or other limits, Drug Hunter may, in its sole discretion: (i) charge Customer for such excess usage; (ii) upgrade Customer’s plan or increase the limits to address such excess usage; or (iii) suspend Customer’s access to and use of the Services.
3.2. Payment. Payment obligations are non-cancelable, and Fees paid to Drug Hunter are non-refundable. All financial transactions conducted and executed for or related to the Services are made by wire transfer, ACH, credit card, or using one or more third-party payment processors that Drug Hunter may engage from time to time (each, a “Payment Processor”). Customer is responsible for all wire fees. If Customer is paying by credit card, such transactions may be governed by a Payment Processors’ respective terms of use and privacy policies, which Drug Hunter does not control. Drug Hunter encourages Customer to review each Payment Processors’ terms of service and privacy policies before submitting Customer’s payment information. This information is used solely for the purpose of allowing Customer to sign up for and access and use the Services and Content. All billing information Customer provides to Drug Hunter or Payment Processor(s) must be truthful and accurate and Customer represents that Customer is authorized to use the payment method in the manner contemplated here. Customer hereby expressly authorizes Drug Hunter (or its Payment Processor(s)) to charge the payment method Customer provides for the Services, Content and Fees. Customer’s selection of the “Accept”, “Proceed to Check Out”, “Place Your Order”, or similar button on the checkout page is Customer’s electronic signature and Customer agrees that: (a) this signature is the legal equivalent of Customer’s wet or manual signature; and (b) such transaction is equivalent to an in-person transaction where Customer’s payment method is physically present and processed.
3.3. Late Payment. Any amount due under this Agreement that remains unpaid after its due date will bear interest from the date that such payment became delinquent until the date such amount is paid in full at the lower of one and one-half percent (1.5%) per month or the maximum rate permitted by Law, calculated from the date such amount was due until the date that payment is received. Customer will pay Drug Hunter such interest and all costs and expenses of collection (including attorneys’ fees) incurred by Drug Hunter for collecting any such past due amounts. If Customer has requested and Drug Hunter has approved providing Customer’s invoice to a third party for payment, in the event such third party fails to submit payment to Drug Hunter, Customer remains fully liable for the amount of the unpaid Fees.
4. INTELLECTUAL PROPERTY; FEEDBACK
4.1. Drug Hunter IP. As between Drug Hunter and Customer, Drug Hunter owns all right, title, and interest, including all intellectual property rights, in and to the Services and Content, usage and other information collected through engagement with the Services and Content (excluding any Customer Data), and any other information, reports, program, or materials provided by Drug Hunter to Customer, including via the Services (collectively, “Drug Hunter IP”). All rights in the Drug Hunter IP not expressly granted to Customer in this Agreement are reserved by Drug Hunter.
4.2. Feedback. Customer may (but is not obligated to) provide Drug Hunter with suggestions, ideas, enhancement requests, or other feedback (“Feedback”). If Customer provides any such Feedback to Drug Hunter, Customer hereby grants Drug Hunter a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and otherwise practice such Feedback.
5. DATA & PRIVACY
5.1. Customer Data. As between Customer and Drug Hunter, Customer owns all Customer Data. Customer hereby grants Drug Hunter and its Affiliates a nonexclusive, worldwide, royalty-free license during the Term (defined below) to use and access Customer Data and provide necessary access to third-party service providers acting on its behalf, such as Amazon Web Services, only to: (a) provide the Services and perform Drug Hunter’s obligations under this Agreement; and (b) to prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.
5.2. Protection of Customer Data. Drug Hunter will maintain reasonable administrative, physical, and technical safeguards to protect the Customer Data. Drug Hunter may update such security protections from time to time; provided, however, that Drug Hunter will not update or modify any security protections in a manner that materially decrease its security controls.
5.3. Privacy. To the extent that the Customer or its Users provide any personal data to Drug Hunter during account registration or otherwise, the Parties acknowledge and agree that such information will be processed by Drug Hunter in accordance with the Drug Hunter privacy policy at https://drughunter.com/privacy-policy and herein by reference. The parties acknowledge and agree that each Party acts as an independent controller of any personal data shared or otherwise processed under this Agreement and has complied and will comply with its obligations under applicable data protection laws and regulations.
6. TERM AND TERMINATION
6.1. Agreement Term. Unless terminated earlier as provided herein, this Agreement commences on the Effective Date and continues for either the term set forth on the signed Order Form, or for one (1) year thereafter if no term is specified on a signed Order Form (the “Initial Term”). All User accounts and subscriptions under this Agreement will automatically terminate when this Agreement terminates or expires.
6.2. Renewal. The Agreement shall automatically renew for successive terms (each a “Renewal Term”), which shall be the greater of a term equal to the immediately preceding term, or for a term of one (1) year. The Fees for each Renewal Term will be Drug Hunter’s then current standard Fees for the Services; provided, however, that if the Fees for any Renewal Term exceed the Fees for the immediately preceding term by more than 10%, then Drug Hunter must obtain Customer’s express written consent to renewal. Customer must notify Drug Hunter in writing at least ninety (90) days in advance of renewal if Customer does not desire to continue using the Services following the end of a Term. The Initial Term and Renewal Term are collectively the “Term”.
6.3. Termination for Cause. A Party may terminate this Agreement if the other Party materially breaches this Agreement, and such breach is not cured within thirty (30) days after the non-breaching Party has provided the breaching Party written notice thereof.
6.4. Effects of Termination. Upon the termination or expiration of this Agreement, the Services and all of Customer’s rights under this Agreement will immediately terminate. Termination or expiration will not relieve either Party of obligations incurred prior to the effective date of the termination or expiration. The following Sections survive the expiration or termination of this Agreement: 1, 3 (with respect to amounts accrued prior to expiration or termination), 4, 5.1, 6.4, 7, 8.3, 8.4, 9, 10.2, and 11.
6.5. Suspension. Drug Hunter may suspend access to all or any part of the Services or Content: (a) with thirty (30) days’ written notice, if Customer fails to make any payments when due; and Fees will continue to accrue during any such suspension; (b) if Customer breaches this Agreement, and such breach is not cured within thirty (30) days after Drug Hunter has provided Customer written notice thereof; or (c) immediately in the event of any actual (or if in Drug Hunter’s reasonable business judgment, it suspects any) breach of Section 2.3 or any unauthorized access, use, or disclosure of the Services or the Content.
7. CONFIDENTIAL INFORMATION
7.1. Definition of Confidential Information. As used herein, “Confidential Information” means any nonpublic or proprietary information disclosed or made available by Drug Hunter to Customer, whether orally or in writing, that: (a) is marked or declared “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature; or (b) based upon the facts and circumstances of the disclosure, information that a reasonable person would consider confidential. For clarity, Customer Data is the Confidential Information of Customer, and the terms of this Agreement, the Content, and all pricing information under this Agreement, is Confidential Information of Drug Hunter. Confidential Information does not include any information that: (i) was publicly available prior to the time of disclosure by the Drug Hunter; (ii) becomes publicly available after disclosure by the Drug Hunter to the Customer through no action or inaction of the Customer; (iii) is already in the lawful possession of the Customer at the time of disclosure; or (iv) is obtained by the Customer from a third party without a breach of such third party’s obligations of confidentiality. Information will not be deemed to be within the foregoing exceptions (i) through (iv) merely because it is: embraced by more general information in the public domain or in the possession of Customer; or, a combination of individual items of information that could be pieced together to reconstruct such combination from non-Confidential Information.
7.2. Protection of Confidential Information. Customer will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information for any purpose outside the scope of this Agreement; and (c) only disclose Confidential Information of the Drug Hunter to those of its and its Affiliates’ employees, contractors, and agents (“Representative(s)”) who are bound in writing by confidentiality obligations at least as protective as this Agreement and need such access for purposes consistent with this Agreement. If any Representative discloses or uses Confidential Information other than as authorized in this Agreement, Customer will be liable to Drug Hunter for such disclosure or use to the same extent that Customer would have been liable had Customer performed such unauthorized disclosure or use. Other than Customer Data necessary to grant Users access and use of the Services and Content, Customer and Users will not transmit, upload, distribute, disclose, make available, or otherwise provide to Drug Hunter or Post on or through the Services any Customer confidential or proprietary information. Customer acknowledges and agrees that Drug Hunter will not be (and is not) liable for any damages or harm that may result from Customer’s transmission, uploading, distribution, disclosure, making available, provision, or Posting of its confidential or proprietary information.
7.3. Compelled Access or Disclosure. Notwithstanding any language to the contrary, Customer may disclose Confidential Information if it is compelled by Law to do so, if Customer gives the Drug Hunter prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the Drug Hunter’s cost, if Drug Hunter wishes to contest such disclosure.
8. WARRANTY; DISCLAIMER
8.1. Warranty. Each Party represents and warrants that: (a) it has full power and authority to enter into this Agreement; and (b) the person signing this Agreement on its behalf has the authority to do so.
8.2. Compliance. In the performance of this Agreement, each Party will comply with the Law applicable to it.
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES, THE CONTENT, AND ANY OTHER INFORMATION (INCLUDING THE REPORTS) ARE PROVIDED BY DRUG HUNTER “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND; AND, DRUG HUNTER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER (INCLUDING WITH RESPECT TO THE USE OF, OR THE RESULTS FROM THE USE OF, THE SERVICES OR THE CONTENT), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE, OR THAT THE SERVICES, THE CONTENT OR ANY OTHER INFORMATION PROVIDED BY DRUG HUNTER OR ANY RESULTS THEREFROM OR DECISIONS BASED THEREON ARE OR WILL BE ACCURATE, COMPLETE, USEFUL, RELIABLE, ERROR-FREE OR UNINTERRUPTED. CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF DRUG HUNTER TO ANY PERSON. THE OPINIONS EXPRESSED BY INDIVIDUAL CONTRIBUTORS OR AUTHORS ON OR THROUGH THE SERVICES ARE THE OPINIONS OF THOSE INDIVIDUALS AND ARE NOT TO BE TAKEN AS THOSE OF DRUG HUNTER, THE INDIVIDUAL’S EMPLOYER, OR ANY AFFILIATED ORGANIZATION. THE SERVICES AND CONTENT ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. ANY REFERENCE ON OR MADE BY THE SERVICES TO A SPECIFIC PRODUCT, PROCESS, OR SERVICE DOES NOT CONSTITUTE OR IMPLY AN ENDORSEMENT BY DRUG HUNTER OF SUCH PRODUCT, PROCESS, OR SERVICE, OR ITS PRODUCER OR PROVIDER. THE CONTENT IS FOR GENERAL INFORMATION PURPOSES ONLY. CUSTOMER’S RELIANCE ON THE SERVICES AND CONTENT IS STRICTLY AT CUSTOMER’S OWN RISK.
8.4. No Medical Use. THE SERVICES AND THE CONTENT DO NOT MAKE A MEDICAL DIAGNOSIS, PROVIDE MEDICAL CARE OR CLINICAL TREATMENT, OR PRESCRIBE MEDICATIONS AND SHOULD IN NO WAY BE CONSIDERED A REPLACEMENT FOR MEDICAL ADVICE OR ACTION IN ORDER TO CURE, TREAT, OR PREVENT DISEASES OF ANY NATURE. CUSTOMER WILL NOT MAKE STATEMENTS THAT THE SERVICES OR THE CONTENT ARE MEANT TO BE USED IN THE TREATMENT OR MANAGEMENT OF ANY DISEASES OR CONDITIONS.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. EXCEPT AS SET FORTH IN SECTION 9.2, TO THE GREATEST EXTENT PERMITTED BY LAW, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF A PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY, OR OTHERWISE: (A) NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR PERTAINING TO THIS AGREEMENT SUFFERED BY CUSTOMER OR OTHERS (INCLUDING ANY LOST PROFITS, LOST REVENUE OR LOSS OF GOODWILL); AND (B) EACH PARTY’S TOTAL AND CUMULATIVE LIABILITY FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF OR PERTAINING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO DRUG HUNTER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO A CLAIM UNDER THIS AGREEMENT.
9.2. Exceptions. THE LIMITATIONS SET FORTH IN SECTION 9.1 DO NOT APPLY TO: (A) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10; OR (B) DAMAGES ARISING OUT OF EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR CUSTOMER’S UNAUTHORIZED USE OF DRUG HUNTER IP OR CUSTOMER’S FAILURE TO PAY ANY AMOUNTS DUE UNDER THIS AGREEMENT.
9.3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE AGREED UPON COMPENSATION AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
10. INDEMNIFICATION
10.1. Drug Hunter Indemnification. Drug Hunter will defend Customer and its directors, officers, and employees against any third-party Claim and will pay for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement by Drug Hunter (such agreement not to be unreasonably, withheld, conditioned, or delayed), to the extent arising from the actual or alleged infringement of such third party’s intellectual property rights by the Services or the Content. Drug Hunter will have no indemnification obligations arising from this Section 10.1, to the extent such Claim arises from: (a) the use or combination of the Services or the Content with any hardware, software, products, processes, data, or other materials not provided by Drug Hunter, including Customer’s own systems and data; (b) modification or alteration of the Services or the Content by anyone other than Drug Hunter; or, (c) Customer’s or any User’s misuse of the Services or the Content or use of the Services or the Content in excess of the rights granted in the Agreement.
10.2. Customer Indemnification. Customer will defend Drug Hunter and its directors, officers, and employees against any third-party Claim and will pay for the resulting costs and damages finally awarded against Drug Hunter to such third party by a court of competent jurisdiction or agreed to in settlement by Customer (such agreement not to be unreasonably, withheld, conditioned, or delayed), arising from any allegation that: (a) the Customer Data or other content or information provided by Customer to Drug Hunter infringes, misappropriates, or violates the rights of a third party; (b) Customer’s use of the Services or Content in violation of Law; or (c) use or reliance on the Services or Content (in whole or in part) in connection with the Customer’s business, products, services, goods, or other offerings.
10.3. Indemnity Obligations. The indemnifying Party’s (the “Indemnitor”) obligations under this Section 10 are conditioned upon the person(s) seeking indemnification under this Section 10 (the “Indemnitee(s)”): (a) promptly notifying the Indemnitor in writing of the Claim (so as to avoid prejudicing the Indemnitor); (b) granting the Indemnitor sole control of the defense and settlement of the Claim provided that any such settlement does not bind any Indemnitee to pay any monetary amounts or admit to any wrongdoing; and, (c) providing the Indemnitor, at the Indemnitor’s expense, with all assistance, information, and authority reasonably required for the defense and settlement of the Claim.
11. GENERAL
11.1. Independent Contractors. The Parties are independent contractors; and nothing contained in this Agreement gives either Party the power to act as an agent of the other or to direct or control the day-to-day activities of the other.
11.2. Assignment. Customer may not assign its rights or delegate its obligations under this Agreement, by operation of law or otherwise, without the prior written consent of Drug Hunter. Any amalgamation or merger of Customer with any third party, or the purchase of all or substantially all of the assets or equity of Customer, will be deemed an assignment requiring consent. Any attempted transfer in violation of this Section is void. Drug Hunter may, without the prior written consent of Customer, assign or delegate all or any part of its obligations under this Agreement.
11.3. Notices. Any notice must be in writing and will be effective upon delivery as follows: (a) if to Customer, when (i) delivered via registered mail, return receipt requested, or overnight delivery service to the address specified on Customer’s Admin Console or otherwise on record for Customer; or (ii) when sent via email to the email address on Customer’s Admin Console or otherwise on record for Customer; and (b) if to Drug Hunter, when sent via registered mail, return receipt requested, to Drug Hunter, Inc., Attn: Legal Department, 3790 El Camino Real #1069, Palo Alto, California, with a duplicate copy sent via email to legal@drughunter.com. Either Party may change its address for receipt of notices by providing notice to the other Party in accordance with this Section.
11.4. Force Majeure. Neither Party will be liable to the other Party for the nonperformance of any obligation under this Agreement (other than any payment obligation) arising from any cause beyond such Party’s or its suppliers’ reasonable control, regardless of whether such cause is foreseeable, including any: (a) act of God; (b) flood, fire, explosion, earthquake, or natural disaster; (c) act of terrorism, war, revolution, invasion, riot, or other civil or military disturbances or acts of public enemies; (d) act, regulation, order, or Law of any government, civil or military authority, or any injunction of any nature; (e) embargo, blockade, tariff, or other trade restriction in effect on or after the Effective Date; (f) national or regional emergency; (g) epidemic, pandemic, or other contagion, including COVID-19; (h) strike, lockout, labor dispute, stoppage or slowdown, or other industrial disturbance; (i) casualty or accident; (j) denial of service attacks and other malicious conduct; or (k) inability to procure, or any interruption, loss, malfunction, or shortage of, any supplies, services, products, equipment, transportation, utilities, communications, or computer software, hardware, or services.
11.5. Governing Law. This Agreement and all proceedings arising hereunder will be governed by and construed in accordance with the laws of the state of New York without reference to its principles of conflicts of law. The Parties expressly exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement.
11.6. Disputes. Any dispute arising between the Parties out of or in connection with this Agreement will be finally resolved by arbitration conducted by one arbitrator (who is a licensed attorney) in Multnomah County, Oregon in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator’s award will be final and binding and may be entered in any court having jurisdiction thereof. Each Party will bear its own costs and attorneys’ fees and will share equally in the fees and expenses of the arbitrator. The arbitration will be conducted in English, the governing language of this Agreement. Nothing contained herein will prevent a Party from obtaining injunctive relief from any court of competent jurisdiction. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS AGREEMENT. CUSTOMER AND DRUG HUNTER HEREBY AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. DRUG HUNTER AND CUSTOMER HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY.
11.7. Severability. Each provision contained in this Agreement constitutes a separate and distinct provision severable from all other provisions. If any provision (or any part thereof) is unenforceable under or prohibited by any present or future Law, then such provision (or part thereof) will be amended, and is hereby amended, so as to be in compliance with such Law, while preserving to the maximum extent possible the intent of the original provision. Any provision (or part thereof) that cannot be so amended will be severed from this Agreement; and all the remaining provisions of this Agreement will remain unimpaired.
11.8. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.9. Publicity. Each Party agrees that the other Party may use its name and associated marks for purposes of client/contractor references, advertising, or promotional campaigns. Each Party further agrees that the other Party may issue a press release or make a public announcement regarding this Agreement subject to the other Party’s right to review and prior approval of the relevant portions of such release or announcement containing reference to its name or marks, which review and approval will not be unreasonably withheld or delayed.
11.10. U.S. Government Customers. The Services use a technology platform that is a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government customers and/or users acquire such software and documentation with only those rights set forth herein. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Drug Hunter to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
11.11. Amendment and Waiver. No modification, amendment, or waiver of any provision of this Agreement will be effective unless it exists in writing and is signed by the Party against whom the modification, amendment, or waiver is to be asserted. The delay or failure of a Party at any time to require performance of any obligations of the other Party will not be deemed to be a waiver and will not affect its right to enforce any provision of this Agreement at a subsequent time. One waiver will not imply or be construed to be a waiver of any future breach.
11.12. Entire Agreement. This Agreement (and any quote or ordering document, confirmation or receipt of Customer’s purchase or placement of any order for the Services, in each case provided by Drug Hunter, if any) constitutes the complete and exclusive statement of all mutual understandings between Drug Hunter and Customer with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications, and understandings, oral or written. Other than a confirmation or receipt provided by Drug Hunter, nothing contained in any purchase order, acknowledgment, confirmation or invoice will in any way modify or add to the terms or conditions of this Agreement and the Parties hereby expressly reject any such terms and conditions contained in any of the foregoing.
11.13. Interpretation. In this Agreement: (a) the headings are for convenience only and will not affect the meaning or interpretation of this Agreement; (b) the words “herein,” “hereunder,” “hereby,” and similar words refer to this Agreement as a whole (and not to the particular sentence, paragraph, or Section where they appear); (c) terms used in the plural include the singular, and vice versa, unless the context clearly requires otherwise; (d) “or” is used in the sense of “and/or”; (e) “any” is used in the sense of “any or all”; and (f) the words “include,” “includes,” or “including” are to be construed as if they are immediately followed by the words “without limitation.” If an ambiguity or question of intent or interpretation arises, then this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the terms hereof or thereof.
11.14. Counterparts. This Agreement (including any quote or ordering document included in this Agreement) may be executed in two or more counterparts, each of which will be deemed an original, but which together constitute one and the same instrument. The execution of this Agreement may be evidenced by way of a facsimile, portable document format (.pdf) transmission, or electronic production or reproduction, photostatic or otherwise, of such Party’s or person’s signature, and such portable document format (.pdf), or electronic production or reproduction signature is deemed to constitute the original signature of such Party or person.
Exhibit A
Acceptable Use Policy
Subject to the terms of the Agreement, the Customer is permitted to access and use the Content accessed via the Services as follows:
· Customer may access, search, browse, and view the Content accessed via the Services solely for Customer’s internal business purposes, but not for any commercial purposes (other than servicing as training or reference material for the commercial research or development of novel pharmaceuticals, or for trading securities of public and private companies on behalf of Customer and Customer’s affiliated investment funds).
· Customer will not (and will not permit or cause any Users or others to) reproduce, distribute, print, disclose, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the Content (in whole or in part), including works resulting from the use of artificial intelligence tools, except as follows:
o Customer’s computer may temporarily store copies of Content in RAM incidental to Customer accessing and viewing such Content.
o Customer may store Content that is automatically cached by Customer’s web browser for display enhancement purposes.
o Customer may download or print one copy of a reasonable number of pages of Content solely for Customer’s internal business purposes and not for commercialization or further reproduction, publication, or distribution.
o If Drug Hunter provides social media features with certain Content (e.g., a “Like” or “Share” button), Customer may take such actions as are enabled by such features.
o Customer may reproduce a reasonable excerpt from the Content solely for Customer’s internal business purposes provided such publication includes attribution to Drug Hunter, Inc. and a link to drughunter.com and such excerpt does not exceed 40% of content in the originating Content.
· Unless otherwise provided herein or Customer has obtained written permission from Drug Hunter, Customer will not:
o Modify copies of any Content.
o Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text of the Content.
o Remove, obscure, or modify in any way copyright notices, other notices, or disclaimers as they appear in the Services.
o Use any robots, spiders, crawlers, or other automated downloading programs, tools, or devices to search, scrape, extract, deep link, index, and/or disrupt the working of the Services.
o Use the Services in combination with a machine-learning or artificial intelligence tool (including to train an algorithm, test, process, analyze, generate output, and/or develop any form of artificial intelligence tool).
o Post individual items from the Services on social networking sites.
o Substantially or systematically reproduce, retain, store locally, redistribute, or disseminate Content accessed via the Services.
o Create or compile, directly or indirectly, manually, via automated programming, or otherwise, a collection, compilation, database, or directory from the Services.
o Create, use, or input any content or other information accessed in or through the Services into any Large Language Model (LLM) or related technology regardless of whether such LLM is public or private. If Customer requires access to content or other information accessed in or through the Services for such purposes, Drug Hunter should be contacted to discuss available service options.
o Reverse assemble, decompile, reverse engineer, modify, enhance, adapt, creative derivative works or otherwise attempt to derive source code from (or the underlying ideas, algorithms, structure or organization of) the Services.