TERMS AND CONDITIONS

THIS IS A LEGAL AGREEMENT BETWEEN QXMD SOFTWARE INC. (“QxMD”) AND THE CLIENT.  IF THE CLIENT DOES NOT AGREE TO THE FOLLOWING TERMS, IT IS NOT AUTHORIZED TO USE OR ACCESS THE SERVICES OR READ.  THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DOING SO ON BEHALF OF THE CLIENT AND REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO BIND THE CLIENT.

BACKGROUND
QxMD has developed a web application and mobile application named Read (“Read”), which acts as an interface to enhance access to medical literature.

TERMS OF AGREEMENT
For good and valuable consideration, QxMD and the Client agree as follows:

  1. Definitions.  When used herein, the following terms have the following meanings:

      • “Agreement” means, where the parties have entered into a written agreement that incorporates these Terms and Conditions, such agreement, or, where the Client has accepted these Terms via an online “click-wrap” agreement, these Terms and Conditions;
      • “Content” means digital copies of journal articles and other content for which the Client has a license to use and disseminate to End Users, utilizing the Services;
      • “Client” means the party entering into this Agreement with QxMD; 
      • “Effective Date” means, where the parties have entered into a written agreement that incorporates these Terms and Conditions, the date so indicated, or, where the Client has accepted these Terms via an online “click-wrap” agreement, the date of acceptance via the mechanism so provided;
      • “End Users” means all users of Read who have been authorized by the Client in accordance with the Client’s agreements with providers of Content, to use Read to access Content;
      • “Policies” means all QxMD policies applicable to the Services; and.
      • “Services” means the services provided by QxMD to the Client pursuant to section 2 of this Agreement.

  2.  Services.  QxMD will make the Content available to End Users, in Read, via integration with the Client’s authentication systems, during the Term, subject to the terms of this Agreement.

  3. Intellectual Property.

    • As between the Client and QxMD, the Services, and all components thereof and all other proprietary materials of QxMD and/or its licensors that are delivered, provided or used by QxMD in the course of performing the Services or this Agreement (including, without limitation, ideas, inventions, documents, data, databases, software, hardware, technology, technology platforms (including upgrades, updates and enhancements related thereto) and works of authorship, materials, information and other intellectual property information and materials developed and produced or used by QxMD), are, and shall at all times remain, the sole and exclusive property of QxMD, including, without limitation, all worldwide intellectual property rights embodied in, related to, or represented by, the Services or any version thereof. 
    • Client grants to QxMD a non-exclusive, worldwide right and license to use, market, display, perform, promote, host and distribute the Content in connection with the Services. Client grants to End Users a license to access and use the Content and any content or services linked from the Content. For avoidance of doubt, Client is not granted any right hereby, and shall not have any right, unless, and only to the extent expressly granted in this Agreement or otherwise in writing by QxMD or its affiliates, to use any trademarks, service marks, trade names, logos and other commercial or product designation(s) of QxMD or its affiliates.

  4. QxMD Obligations.  QxMD will:
    • not share the Content with any third party, other than granting access to End Users through Read;
    • not share usage information on the Content with third parties unless such usage information has been anonymized and de-identified such that the Client’s institutional characteristics cannot be traced to the Client; and
    • discontinue offering certain Content for access through Read upon request by the Client.  Once the Content is no longer available to QxMD, QxMD will stop granting access to it within 30 days.

  5. Client Obligations.  The Client will:
    • maintain during the Term, all necessary rights and licenses to the Content for the purposes of  allowing QxMD to include the Content in Read and allowing End Users to access the Content utilizing Read; and
    • not engage in any act that would violate, or cause QxMD to violate, any applicable laws (including but not limited to copyright laws) or the terms of any of the Client’s agreements with its Content providers.
  6. Warranty. Client represents and warrants that: (i) the Content complies with all applicable laws and regulations, this Agreement (including the Policies) and does not violate the rights of any third party; and (ii) it holds the necessary rights to permit the use and display of the Content as set forth in this Agreement.
  7. Indemnification.  
    • Client shall, at its sole cost and expense, indemnify, defend and hold QxMD, its affiliates, and its and their respective officers, directors, employees, agents, successors and assigns harmless from and against any and all claims, losses, damages, judgments, costs and expenses (including attorneys’ fees and expenses), arising out of or related to any use of the content by QxMD or any End User in accordance with the Terms of this Agreement.
    • QxMD shall, at its sole cost and expense, indemnify, defend and hold Client harmless from and against any and all claims, losses, damages, judgments, costs and expenses (including attorney’s fees and expenses), arising out of or related to any third party claim that any Services infringe any third party’s existing U.S. patent, copyright, or trademark.  If such a claim is made or appears possible, or if in QxMD’s opinion, such a claim is likely to occur, QxMD may, at its sole option and expense, either (i) procure for Client the right to continue to use the materials in question; or (ii) modify or replace the infringing materials so that they become non-infringing as long as the functionality is not materially and adversely affected.  If neither of the foregoing options is reasonably available then QxMD may terminate this Agreement.
    • QxMD will have no liability or obligation hereunder for: (i) any use of the Services after QxMD has notified Client to discontinue use; (ii) the combination or use of the Services or any deliverables with content, technology or other materials not supplied by QxMD; or (iii) alteration of the Services or any deliverable, or any misuse or unauthorized use thereof.

  8. Disclaimer; Limitation of Liability.  QXMD MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, SYSTEMS OR INFORMATION DELIVERED PURSUANT TO THIS AGREEMENT. QXMD EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, AND ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE.  CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT THE INTERNET IS AN UNREGULATED, PUBLIC NETWORK OVER WHICH QXMD EXERTS NO CONTROL. QXMD MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND SHALL HAVE NO LIABILITY WHATSOEVER, WITH RESPECT TO THE ACCURACY, DEPENDABILITY, PRIVACY, SECURITY, AUTHENTICITY OR COMPLETENESS OF DATA TRANSMITTED OVER OR OBTAINED USING THE INTERNET, OR ANY INTRUSION, VIRUS, DISRUPTION, LOSS OF COMMUNICATION, LOSS OR CORRUPTION OF DATA. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, QXMD DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SERVICES AND ACCESS TO SUCH SERVICES MAY BE INTERFERED WITH BY NUMEROUS OUTSIDE FACTORS OUTSIDE OF QXMD’S CONTROL.  QXMD IS NOT AND WILL NOT BE LIABLE FOR ANY SUCH DAMAGES OR LOSSES OF ANY TYPE CAUSED BY SUCH INTERFERENCE. IN NO EVENT SHALL QXMD BE LIABLE TO THE CLIENT FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOSS OF USE OF EQUIPMENT OR LOST CONTRACTS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR COVER DAMAGES IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, HOWEVER CAUSED, EVEN IF THE CLIENT HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE ENTIRE LIABILITY OF QXMD UNDER THIS AGREEMENT, OR ANY MATTER RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY) SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED ONE THOUSAND DOLLARS ($1,000).

  9. Term.  This Agreement commences on the Effective Date and continues on a recurring monthly basis until terminated by either party on 30 days’ notice (the “Term“). Notwithstanding anything stated herein, the parties agree that QxMD may terminate this Agreement at any time.

  10. General
    • The parties are independent contractors.  This Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of the other. 
    • This Agreement is the entire agreement between the parties and there are no promises, representations, warranties, or agreements other than those made herein.
    • Neither party shall be liable for any failure to comply with its obligations under this Agreement if the failure to comply is caused by or results from conditions or causes beyond its reasonable control.
    • This Agreement shall be interpreted, governed and construed by the laws of the State of New York without regard to the actual state or country of incorporation or residence of the Client, and the parties unconditionally consent to the exclusive jurisdiction of the courts of the State of New York for any action, suit or proceeding (other than appeals therefrom) arising out of or related to this Agreement.
    • Any provisions of this Agreement that must survive in order to give effect to its meaning shall survive the Term, including without limitation, Sections 3(a) and 7 through 10 of this Agreement.
    • Client grants and assigns to QxMD a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into Services any suggestions, enhancement requests, recommendations or other feedback provided by Client.
    • We believe we will be able to resolve most disputes or issues you may have using our Services. In the unlikely event we are not able to resolve a dispute or issue, we prefer to specify now what each of us should expect in order to avoid any confusion later. Accordingly, you agree to the following resolution process.
    • QxMD believes it will be able to resolve most disputes or issues Client may have with respect to the Services. Before initiating any arbitration proceeding, Client agrees to first discuss any matter informally with QxMD for at least 30 days. If the parties are unable to mutually agree upon a resolution after the 30-day period, Client agrees that any claim it may have against QxMD regarding this Agreement and the Service will be resolved through binding arbitration administered by JAMS and governed by the then-current JAMS Streamlined Arbitration Rules and Procedures. Client agrees to begin any arbitration within one year after the claim arose; otherwise, the claim is waived. Client agrees to arbitrate with QxMD only in its individual capacity, not as a representative or member of a class. As such, Client’s claims may not be joined with any other claims, and there will be no authority for any dispute to be arbitrated on a class-action basis or brought by a purported class representative. Client agrees that arbitration will be exclusively held in Los Angeles County, California and that each party will be responsible for its own costs, including paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. In order to select an arbitrator, each party agrees to provide a list of two available arbitrators that have experience with the subject matter. Each party may strike one of the names on the other party’s list. The parties will select an arbitrator out of the remaining two arbitrator names. If the parties cannot mutually agree on one arbitrator, JAMS will choose the arbitrator randomly from the two remaining arbitrators. Client understands that the arbitrator’s decision will be binding and may be entered as a judgment in any court of competent jurisdiction.