Last Modified: Sep. 8, 2022
Accepting Our Subscription Agreement
WHEREAS, Drug Hunter is in the business of creating and publishing digital content on the Drug Hunter website (www.drughunter.com) (the “Property”), and providing digital marketing and promotional opportunities on or through the Property, including display advertising, email marketing, content collaboration and development, and digital event sponsorship.
WHEREAS, Client wishes to retain Drug Hunter to provide certain services described in one or more Statements of Work (defined below).
NOW, THEREFORE, the Parties agree as follows:
1. Drug Hunter Services and Responsibilities.
1.1. Drug Hunter Services. Drug Hunter will provide to Client services (the “Services”) described in one or more statements of work (each, a “Statement of Work”). The attached Exhibit A, which is hereby incorporated by reference into this Agreement, contains a list of the services being offered by Drug Hunter to Client, including the specific terms and conditions, if any, applicable to the services. However, only the specific Services described in an applicable Statement of Work will be delivered to Client. The initial Statement of Work is attached as Exhibit B. Additional Statements of Work will be deemed accepted and incorporated into this Agreement only if signed by both Parties. Drug Hunter will provide the Services in accordance with the terms and conditions stated in the relevant Statement of Work and this Agreement. In the event of a conflict between an SOW and any provision of this Agreement, the terms of the SOW will control.
1.2 No Exclusivity; Compliance with Laws. Drug Hunter retains the right to perform the same or similar services for third parties, in or outside Client’s industry, at all times. Drug Hunter will materially comply with all applicable federal, state, and local laws, rules, and regulations that are applicable to its performance under this Agreement. Without limiting the generality of the foregoing, each party must, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement.
2. Client Obligations and Responsibilities.
2.1. Client must:
(a) Provide copies of or access to Client’s information, documents, or other materials (collectively, “Client Materials”) as Drug Hunter and Client mutually consider reasonably necessary in order to carry out the Services in a timely manner, and ensure that they are complete and accurate in all material respects. Subject to Section 3.2, Client will remain the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including all trade secrets, trademarks, domain names, original works of authorship and related copyrights, and any other intangible property in which any person holds proprietary rights, title, interests, or protections pursuant to the laws of any jurisdiction throughout the world (collectively “Intellectual Property”).
(b) Respond promptly to any Drug Hunter request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Drug Hunter to perform the Services in accordance with the requirements of this Agreement.
3. Intellectual Property Rights; Ownership.
3.1. Drug Hunter Materials. In the course of providing the Services, Drug Hunter may create new materials, or may use certain pre-existing materials, consisting of documents, data, know-how, methodologies, software, and other materials (collectively, the “Drug Hunter Materials”). Unless otherwise set forth in a Statement of Work, Drug Hunter and its licensors are, and will remain, the sole and exclusive owners of all right, title, and interest in and to the Drug Hunter Materials, including all Intellectual Property therein.
4.1. Fees; Payment. In full consideration of the provision of the Services and the rights granted to Client under this Agreement, Client will pay Drug Hunter the fees (“Fees”) set forth in the Statement of Work. Client will pay all properly invoiced amounts to Drug Hunter within 15 days after Client’s receipt of such invoice. If a dispute should arise, Client must notify Drug Hunter in writing (along with substantiating documentation and a reasonably detailed description of the dispute) within 5 calendar days from the date of the relevant invoice. Client will be deemed to have accepted all invoices for which Drug Hunter does not receive timely notification of dispute and must pay all undisputed amounts due under such invoices within the period set forth in this Section 4.1. The Parties will seek to resolve all such disputes expeditiously and in good faith.
4.2. Taxes. All fees payable by Client under this Agreement are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on such amounts. Drug Hunter will be responsible for any taxes imposed on, or with respect to, Drug Hunter’s income, revenues, gross receipts, personnel, or other assets. Client will be solely responsible for the payment of any sales and use taxes assessed against the sale of Client’s goods and services.
4.3. Late Payments. Except for invoiced payments that Client is disputing under Section 4.1, Client will pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. Client will also reimburse Drug Hunter for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
5. Representations, Warranties, and Certain Covenants.
5.1. Drug Hunter represents, warrants, and covenants to Client that to its actual knowledge, none of the Services infringe or will infringe any registered Intellectual Property of any third party arising under United States laws, excluding any claim, litigation or other proceedings arising out of any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client to Drug Hunter. Drug Hunter’s sole liability and Client’s sole and exclusive remedy for Drug Hunter’s breach of this Section 5.1 are Drug Hunter’s obligations and Client’s rights under Section 6.2;
5.2. NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 5, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 5.
6.1. Client Indemnification Obligations. Client will defend, indemnify, and hold harmless Drug Hunter, and its officers, directors, employees, agents, Affiliates, successors, and permitted assigns (collectively, “Drug Hunter Indemnified Party”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) , that are incurred by a Drug Hunter Indemnified Party arising out of or resulting from any third-party Claim alleging: (a) material breach by Client or its Personnel of this Agreement; (b) Client’s or its Personnel’s gross negligence or more culpable act or omission (including any recklessness or willful misconduct); and (c) that any Client Materials or Client Intellectual Property or Drug Hunter’s receipt or use thereof in accordance with the terms of this Agreement infringes any third party’s Intellectual Property.
6.2. Drug Hunter Indemnification Obligations. Drug Hunter will defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, successors, and permitted assigns (collectively, “Client Indemnified Party”), from and against any and all Losses, arising out or resulting from any third-party Claim alleging: (a) material breach by Drug Hunter or its Personnel of this Agreement; (b) Drug Hunter’s gross negligence or more culpable act or omission (including any recklessness or willful misconduct); (c) that any of the Services or Client’s receipt or use thereof infringes any third party’s Intellectual Property.
6.3. Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, neither Party is obligated to indemnify or defend the other Party or any of the other Party’s affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors or permitted assigns (collectively “Representatives”) against any Losses arising out of or resulting from: (i) the other Party’s willful, reckless, or grossly negligent acts or omissions; (ii) the other Party’s bad faith failure to comply with any of its material obligations set forth in this Agreement; or (iii) infringement claims relating to any instruction, information, designs, specifications, or other materials provided by the other Party in writing to such Party (including, without limitation, Client Materials provided to Drug Hunter).
6.4. Indemnification Procedures. A party seeking indemnification under this Section 6 (the “Indemnified Party”) must give the Party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice will not relieve the Indemnifying Party from any liability or obligation unless material prejudice directly results from such failure; and (b) reasonable cooperation in the defense of such claim. The Indemnifying Party will have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party will not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party will have the right to participate in the defense at its own expense.
6.5. EXCLUSIVE REMEDY. EXCEPT FOR THE EQUITABLE REMEDIES AVAILABLE TO THE PARTIES SET FORTH IN SECTION 11.7, THIS SECTION 6 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 6.
7. Limitation of Liability.
EXCEPT WITH RESPECT TO THE PARTIES’ LIABILITY FOR INDEMNIFICATION OR FOR BREACH OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED TWO (2) TIMES THE TOTAL OF THE AMOUNTS PAID TO DRUG HUNTER UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
With regards to Confidential Information, neither Party will provide or share any of its Confidential Information with the other Party without first informing the other Party in writing of its intention to share Confidential Information and the other Party subsequently agreeing in writing to accept the other Party’s Confidential Information. During the Term, if the Parties mutually agree in writing to disclose and accept either Party’s Confidential Information, either corresponding Party (as the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 8 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable law. The Receiving Party will: (x) protect and safeguard the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in any event no less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party’s Representatives who need to know to assist the Receiving Party exercise its rights or perform its obligations under this Agreement. The Receiving Party will be responsible for any breach of this Section 8 caused by any of its Representatives. On the expiration or earlier termination of this Agreement, at the Disclosing Party’s written request, the Receiving Party and its Representatives must, pursuant to Section 9.4, promptly return or destroy all Confidential Information and copies thereof that it has received under this Agreement.
9. Term; Termination.
9.1. Term. Unless otherwise stated in an SOW, the term of this Agreement commences on the Effective Date and continues for 12 months (the “Initial Term”), unless earlier terminated in accordance with the terms of this Agreement. Upon expiration of the Initial Term, this Agreement will automatically renew for one (1) additional 12-month terms (the Initial Term plus any renewal terms are, the “Term”).
9.2. Termination for Cause. Either Party may terminate this Agreement, effective upon written notice, to the other Party (the “Defaulting Party”) if the Defaulting Party: (i) materially breaches this Agreement, and such breach is incapable of cure, or if capable of cure (other than a failure by Client to make timely payments (a “Payment Failure”), which is separately addressed in this Section 9.2), the Defaulting Party does not cure such breach within 15 days after receipt of written notice of such breach; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by court order to take charge of or sell any material portion of its property or business; (vi) is dissolved or liquidated; or (vii) is unable to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event (defined below) that lasts for more than 30 consecutive days. Drug Hunter may terminate this Agreement, effective upon written notice to Client if: (x) a Payment Failure by Client continues for 10 days after Client’s receipt of written notice of nonpayment; or (y) within any 12-month period, 2 or more Payment Failures occur.
9.3. Termination without Cause. Client may terminate this Agreement or any Statement of Work on 10 days’ prior written notice to Drug Hunter. Client will reimburse Drug Hunter for all pre-approved, non-cancellable expenses accrued by Drug Hunter to perform the Services.
9.4. Effect of Expiration or Termination. Expiration or termination of this Agreement will not affect any rights or obligations that are to survive the expiration or earlier termination of this Agreement and were incurred by the Parties prior to such expiration or earlier termination. Subject to this Section 9.4, the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, will not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of either Party’s rights, remedies, or defenses under this Agreement. If Client terminates this Agreement pursuant to Section 8.2 or Section 8.3, Drug Hunter will refund to Client a pro rata portion of any prepaid fees attributable to any period following the effective date of termination, if and only if such fees were previously agreed in writing to be refundable.
10. Force Majeure.
Except for Client’s payment obligations, neither Party will be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, terrorism, or any other similar cause beyond the reasonable control of such party; provided however, that (a) the non-performing Party is without fault in causing such default or delay, and (ii) such default or delay could not have been prevented by reasonable precautions and could not reasonably be circumvented by the non-performing Party through the use of alternate sources, workaround plans, or other means (each such event, a “Force Majeure Event”).
11.1. Entire Agreement. This Agreement, including the attached exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
11.2. Survival. Subject to the limitations and other provisions of this Agreement, Section 5 (Representations, Warranties, and Certain Covenants) will survive the expiration or earlier termination of this Agreement for a period of 12 months after such expiration or termination; and (b) Section 4 (Fees and Expenses; Payment Obligations), Section 6 (Indemnification), Section 7 (Limitation of Liability), Section 8 (Confidentiality), Section 9 (Term; Termination), and Section 11 (Miscellaneous) of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement.
11.3. Notices. All notice and other communications hereunder must be in writing and addressed to the parties at the addresses set forth in the signature blocks below (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section 11.3.
11.4. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, it will not affect, invalidate, or render unenforceable any other term or provision of this Agreement. If any term or provision is deemed invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible so that the transactions contemplated herein can be consummated as originally intended.
11.5. Amendment and Modification. No amendment to or modification of this Agreement will be effective unless in writing and signed by an authorized Representative of each Party.
11.6. Waiver. No waiver by either Party of any of the provisions of this Agreement will be effective unless explicitly set out in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof.
11.7. Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 8 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party will, in addition to any and all other rights and remedies that may be available to such Party, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or court order granting equitable relief, in either case, consistent with the terms of this Section 11.7.
11.8. Assignment. Neither Party may assign, transfer, or delegate any of its rights or obligations under this Agreement, without the prior written consent of the other party except that no such consent shall be required for a Party to assign its rights or transfer its obligations to its affiliate or in connection with the sale or transfer of the majority of its stock or all or substantially all of its assets to which this Agreement relates, whether as part of a merger, acquisition, or asset sale. Any attempted assignment, transfer, or other conveyance in violation of the foregoing will be null and void. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement benefits solely the Parties and their respective permitted successors and assigns, and nothing in this Agreement gives any other person any legal or equitable right, benefit, or remedy of any nature whatsoever.
11.9 Choice of Law; Forum. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to the conflict of laws provisions. Neither Party may commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, any Statement of Work, and all contemplated transactions, in any forum other than the state or United States federal district courts located in New York, New York.
11.10. Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Drug Hunter is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of other Party or to bind the other Party to any third party contract or undertaking.
11.11. Publicity. Client agrees that Drug Hunter may truthfully refer to it as customer of Drug Hunter and use Client’s logo for Drug Hunter’s own marketing purposes only.
Exhibit A: Services
- Drug Hunter Premium Subscription Plan for Corporate Clients
Access to Premium content in the Premium Subscription Plan available online at: drughunter.com/plans.
Exhibit B: Initial Statement of Work
This Statement of Work (“SOW”), adopts and incorporates by reference the terms and conditions of the Master Digital Services Agreement (“Master Agreement”), entered into between Drug Hunter, Inc., a Delaware corporation, (“Drug Hunter”) and you (“Client,” and together with Drug Hunter, the “Parties,” and each, a “Party”), as it may be amended from time to time.
This SOW is effective beginning on the date you agree to the services (“Effective Date”) and will remain in effect for a one-year subscription term (“Expiration Date”), unless earlier terminated in accordance with the Master Agreement. Transactions performed under this SOW will be conducted in accordance with and be subject to the terms and conditions of this SOW and the Master Agreement. Capitalized terms used but not defined in this SOW will have the meanings given to them in the Master Agreement.
- Scope of Work. Drug Hunter will provide the following Services to Client: Drug Hunter Premium Access with unlimited seats under the Premium Subscription Plan for Corporate Clients (available at: https://drughunter.com/plans/ with examples at https://drughunter.com/premium/ as of the Effective Date). This provides access to content marked “Premium” to users, behind a “Premium” paywall.
- Pricing. All costs are provided in the quote or invoice received by Client which references this document.
- Payment Terms. Fees will be invoiced on execution, Net 15, but in any event must be paid before any Services are rendered.
- Other Terms and Conditions.
- Permitted Access. Only Client and its employees, and Client’s subsidiary and its employees, are permitted to access the Services. All users must register with a work email address.
- Subscription Fees and Pricing. Subscription fees (including the Access Fee) are non-refundable. Subscription Plans are not for resale and cannot be transferred or re-assigned. Fees stated in this SOW are valid during the term of this SOW, but may be subject to change after expiration of this SOW.