MyEBMsearch - Terms of use

E-WISE, INC. TERMS OF USE AND END USER LICENSE AGREEMENT

This E-Wise, Inc. Terms of Use and End User License Agreement (“Agreement”) constitutes a legally binding agreement made between you, whether personally or on behalf of an entity (“you”) and E-Wise, Inc. (“E-Wise”), concerning your access to and use of the E-Wise website (“Website”) located at www.myebmsearch.com. The Website allows users to search the National Library of Medicine Databases MEDLINE® and PubMed® (“NLM Databases”) and download and print search results and articles, and store search results and articles in your personal “My Collection” section on the site (collectively, the “E-Wise Service”).

1. Eligibility. By using the E-Wise Services, you represent and warrant that: (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 18 years of age or older; and (d) your use of the E-Wise Services does not violate any applicable law or regulation.

2. Prohibited Activities. You may not access or use the Website for any other purpose other than that for which E-Wise makes it available. E-Wise reserves the right, in its sole discretion, to investigate and take appropriate legal action against anyone who violates this provision. Prohibited activity includes, but is not limited to:

(a) criminal or tortuous activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, copyright infringement, patent infringement, or theft of trade secrets;

(b) engaging in any automated use of the system, such as using scripts to add friends;

(c) interfering with, disrupting, or creating an undue burden on the Website or the networks or services connected to the Website;

(d) attempting to impersonate another user or person;

(e) using the username of another user;

(f) selling or otherwise transferring your profile;

(g) using any information obtained from the Website in order to harass, abuse, or harm another person; and

(h) using the Website in a manner inconsistent with any and all applicable laws and regulations.

3. License Grant and Restrictions.

3.1 License Grant. E-Wise grants you a non-exclusive, non-sublicensable, non-transferable, revocable license for the term of this Agreement to use the E-WISE Service solely for personal and internal purposes. If you violate the terms of this license, E-Wise may terminate this Agreement upon notice, as well as your right to access and use the Website.

3.2 Restrictions. You shall not, and you shall not permit others to:

(a) use the E-Wise Service except as permitted herein including without limitation (i) for generating any statistical information that is resold, rented, published, furnished or provided in any manner to a third party, (ii) merging the content of the E-Wise Service, including without limitation, the text, software, scripts, graphics, photos and NLM Databases (“Materials”) or incorporating the Materials with any other third party files, and (iii) using the E-Wise Service to develop any enhancement or other product;

(b) decompile, reverse engineer, disassemble, decrypt, extract or otherwise reduce the Materials to human-perceivable form;

(d) give, lease, lend, distribute, sell, copy or otherwise transfer the Materials or any file derived from the E-Wise Services;

(e) attempt to circumvent any user limits or other license or use restrictions;

(f) use the E-Wise Service in any manner that violates any applicable law or regulation;

(g) sublicense, transfer or assign this Agreement or any of the rights or licenses granted under this Agreement to any third party;

(i) redistribute in any format the Materials of the E-Wise Service;

(j) remove or obscure the copyright notice or other notices contained in the Materials of the E-Wise Service;

(k) except as permitted herein, copy the Materials of the E-Wise Service except for a reasonable number of copies for backup and security purposes;

(l) use the E-Wise Service for generating any statistical information which is sold, and rented to any third party; and

(m) publish, distribute or permit disclosure of the Materials of the E-Wise Service, other than to your employees and agents for the limited purpose set forth above.

3.3 Copyright on NLM Databases. The following restrictions and constraints apply to the use of NLM Databases as part of the E-WISE Service:

(a) NLM Databases are produced by a U.S. government agency and as such the contents are not covered by copyright domestically. They may be copyrighted outside the U.S. Some National Library of Medicine (“NLM”) produced data is from copyrighted publications of the respective copyright claimants. Users of the E-WISE Service are solely responsible for compliance with any copyright notices appearing in the original publications, all of which are incorporated by reference. Users are referred to the NLM statement on Copyright of Abstracts on the NLM website. All used records must be identified as being derived from NLM Databases. The duplication, resale or redistribution of NLM data obtained under this Agreement is not allowed.

(b) Since the NLM makes corrections and enhancements to and performs maintenance on records in the NLM Databases at least annually, you should plan to replace or correct the records once a year to ensure that they are still correct.

(c) The NLM represents that the data provided under this Agreement were formulated with a reasonable standard of care. Except for this representation, and as otherwise specifically provided in this Agreement, NLM makes no representation or warranties, expressed or implied. This includes, but is not limited to, any implied warranty of merchantability or fitness for a particular purpose, with respect to the NLM databases, and NLM specifically disclaims any such warranties and representations.

(d) MEDLINE® and PubMed® are registered trademarks of the NLM.

3.4 Digital Rights Management. The E-WISE Service contains a Digital Rights Management System (“DRMS”), or security framework designed restrict certain unauthorized access to and uses of the software and other third-party materials. You represent and warrant that you will permit the operation of the DRMS, and agree to any and all restrictions it imposes concerning your use of the software and other third-party materials. Without limiting any other provision of this Agreement, you represent and warrant that you shall not, and that you shall not permit or assist others to, reverse engineer, decrypt, break or otherwise alter, interfere with or attempt to circumvent any facet, feature, device or other technological measure incorporated into the software and constituting the DRMS. Any violation of this section may constitute a violation of United States copyright law, and may subject you to criminal, civil and other penalties.

4. Fees. You acknowledge that E-Wise charges fees for the E-Wise Service and that E-Wise reserves the right to change its fees from time to time in its sole discretion. On behalf of E-WISE Inc. all global electronic payments processing will be managed by E-Wise b.v., Janssoniuslaan 38-40, 3528 AJ Utrecht, The Netherlands.

On occasion users can be offered a free trial subscription to evaluate the E-Wise Service before entering into a paid subscription agreement.

5. Passwords and User IDs. When you create an account with the Website, you will be offered or asked to supply a password and a user ID. You must keep your password and user ID confidential, and are responsible for all use of your password, user ID and account.

6. Intellectual Property Rights. The content on the Website and E-Wise Service, including without limitation, the text, software, scripts, graphics, photos and NLM Databases (“Materials”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to E-Wise, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Except as expressly set forth herein, this Agreement grants you no rights in the intellectual property of E-Wise, its licensors, or any other party. E-Wise reserves all rights not expressly granted in and to the Website, the E-Wise Services and the Materials. Materials on the Website and the E-Wise Services are provided to you AS IS for your information and personal use only and, except as set forth herein, may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners.

7. E-Wise’s Right to Manage the Website and Terminate Users.

7.1 E-Wise Website Management. E-Wise reserves the right but does not have the obligation to: (a) monitor the Website for violations of this Agreement; (b) take appropriate legal action against anyone who, in E-Wise's sole discretion, violates this Agreement, including without limitation, reporting you to law enforcement authorities; (c) remove from the Website or otherwise disable all files and content that are excessive in size or are in any way burdensome to E-Wise’s systems; (d) terminate the accounts of repeat infringers; (e) otherwise manage the Website in a manner designed to protect the rights and property of E-Wise and others and to facilitate the proper functioning of the Website; and (f) restrict access or the availability of material that E-Wise, in its sole discretion, considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.

7.2 E-Wise’s Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, E-WISE RESERVES THE RIGHT TO, IN E-WISE’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY DENY ACCESS TO AND USE OF THE WEBSITE TO, ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION.

7.3 Website Errors. The Website may contain inaccuracies or typographical errors. E-Wise makes no representations about the accuracy, reliability, completeness, or timeliness of Website or any content thereon. The use of the Website is at your own risk. Changes are periodically made to Website and may be made at any time.

7.4 No Guarantee. E-Wise cannot guarantee and does not promise any specific results from use of Website. No advice or information, whether oral or written, obtained by a you from E-Wise or the Website shall create any warranty not expressly stated herein.

8. Term. This Agreement will commence on the Effective Date and will remain in full force and effect for one year. Thereafter, this Agreement will renew for additional one year terms unless and until either party provides written notice to the other party, at least 30 days prior to the expiration of the then-current term, of its intention not to renew this Agreement. You may terminate your use or participation at any time, for any reason, by following the instructions on the Website. E-Wise may terminate your use or participation at any time, without warning. If E-Wise terminates this Agreement in accordance with the preceding sentence, E-Wise will refund any unused portion of the fees you paid for the current term on a pro rata basis. (For example: If the term of your contract commences on January 1, 2007 and E-Wise terminates this Agreement without warning on June 1, 2007, E-Wise will refund 50% of the fee for the then current year.) Even after your use and participation is terminated, this Agreement will remain in effect, including: Section 1 (“Eligibility”), Section 2 (“Prohibited Activities”), Section 3 (“License Grant and Restrictions”); Section 4 (“Fees”); Section 5 (“Passwords and User IDs”), Section 6 (“Intellectual Property Rights”), Section 7 (“E-Wise’s Right to Manage the Website and Terminate Users”), Section 8 (“Term”), Section 9(“Modifications”), Section 10 (“Disputes Between Users”), Section 11 (“Disputes with E-Wise”), Section 12 (“Disclaimers”), Section 13 (“NLM Representations”); Section 14 (“Limitation of Liability”), Section 15 (“Indemnity”) and Section 16 (“Other”).

9. Modifications. E-Wise may modify this Agreement from time to time. E-Wise will alert all users with whom it maintains email information of such modifications by means of an email to their most recently provided email address. Any and all changes to this Agreement will also be reflected on the Website. You agree to be bound to any changes to this Agreement when you use the Website or the E-Wise Services after any such modification is posted. It is therefore important that you regularly review this Agreement and keep your contact information current to ensure you are informed of any changes.

10. Disputes Between Users/Release of E-Wise. Because E-Wise does not and cannot be involved in user-to-user dealings or control the behavior of participants on the Website, in the event that you have a dispute with one or more Website users, you agree, represent and warrant to resolve all disputed directly with such users and release E-Wise (and its agents and employees) from claims, demands and damages (actual and consequential, direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

11. Disputes with E-Wise. All disputes arising out of or relating to this Agreement (including its formation, performance, or alleged breach) or your access to or use of the Materials, E-Wise Services and Website, including without limitation your or others’ downloading or consumption of NLM Databases or other materials available by means of the Website or third party websites, will be exclusively resolved under confidential binding arbitration held in New York City, New York before and in accordance with the rules of JAMS. Notwithstanding the foregoing, E-Wise will have the right to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights. In the event of litigation or to compel arbitration or to enforce an arbitration award under this Section, or to obtain an injunction under this Section, the parties hereby irrevocably consent and submit to the personal jurisdiction and venue of the state and federal courts located in New York City, New York. This Agreement will be interpreted exclusively by New York law.

IF YOU DO NOT WISH TO ACCEPT THE BINDING ARBITRATION PROVISIONS CONTAINED IN THIS SECTION YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS AFTER REGISTERING WITH THE WEBSITE BY SENDING US AN EMAIL AT FEEDBACK@MYEBMSEARCH.COM. IF YOU NOTIFY US BY THAT TIME THAT YOU DO NOT ACCEPT THE BINDING ARBITRATION PROVISIONS CONTAINED IN THIS SECTION, YOU MAY CONTINUE TO USE NON-INTERACTIVE PORTIONS THE WEBSITE; HOWEVER, YOUR REGISTRATION WILL BE CANCELLED AND YOU WILL NOT BE ABLE TO USE THE INTERACTIVE FEATURES OF THE WEBSITE INCLUDING WITHOUT LIMITATION THE NLM DATABASES. IF YOU ELECT TO CONTINUE USING THE NON-INTERACTIVE PORTIONS OF THE WEBSITE AFTER GIVING E-WISE SUCH NOTICE, YOU AGREE TO ACCEPT ALL OF THE TERMS OF THIS AGREEMENT EXCEPT FOR THE BINDING ARBITRATION PROVISIONS CONTAINED IN THIS SECTION.

12. Disclaimers. E-WISE CANNOT CONTROL THE NATURE OF THE CONTENT AVAILABLE ON THE WEBSITE. BY OPERATING THE WEBSITE, E-WISE DOES NOT REPRESENT OR IMPLY THAT E-WISE ENDORSES ANY CONTENT AVAILABLE ON OR LINKED TO BY THE WEBSITE, OR THAT E-WISE BELIEVES SUCH CONTENT TO BE ACCURATE, USEFUL OR NON-HARMFUL. YOU AGREE THAT YOUR USE OF THE WEBSITE AND E-WISE SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, E-WISE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF.

E-WISE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE’S CONTENT, THE CONTENT OF ANY WEBSITES LINKED TO THIS WEBSITE OR THE E-WISE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITE OR E-WISE SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE.

THE CONTENT OF THE WEBSITE OR THE E-WISE SERVICES SHOULD UNDER NO CIRCUMSTANCES BE READ AS MEDICAL ADVICE, DIAGNOSIS OR TREATMENT.

E-WISE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND E-WISE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

13. NLM Representations. You acknowledge that any representation that may be made by NLM that the NLM data provided to you was formulated by NLM with a reasonable standard of care is made only by NLM and not by E-Wise. You acknowledge that NLM makes no other representations or warranties, expressed or implied. This includes, but is not limited to, any implied warranty of merchantability or fitness for a particular purpose, with respect to the NLM Databases, and you acknowledge that NLM specifically disclaims any such warranties and representations. You acknowledge that some material in the NLM Databases is from copyrighted publications of the respective copyright claimants. You acknowledge that you are solely responsible for compliance with any copyright restrictions and are referred to the publication data appearing in the bibliographic citations, as well as to the copyright notices appearing in the original publications, all of which are hereby incorporated by reference.

14. Limitation of Liability. IN NO EVENT SHALL E-WISE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE WEBSITE OR THE E-WISE SERVICES, EVEN IF E-WISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, E-WISE'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO E-WISE FOR THE E-WISE SERVICES DURING THE TERM OF YOUR USE OF THE WEBSITE.

15. Indemnity. You agree to defend, indemnify and hold harmless E-Wise and its directors, officers, employees, agents, representatives, affiliates, parents, subsidiaries, licensors, suppliers, service providers and other contractors (collectively, “E-Wise Indemnified Parties”) from and against any and all claims, actions, demands, causes of action and other proceedings (“Claims”) arising out of or relating to: (a) your breach of this Agreement, including without limitation Section 10 (“Disputes Between Users/Release of E-Wise”) and any other representation or warranty contained in this Agreement; or (b) your access to or use of the Website and E-Wise Services, including without limitation your or others’ access of content or other materials available by means of the Website or Third-Party Websites. The E-Wise Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify or hold harmless the E-Wise Indemnified Parties (“Indemnified Claim”). You may not settle any Indemnified Claim without the prior written consent of the concerned E-Wise Indemnified Parties.

16. Miscellaneous.

16.1 Entire Agreement. This Agreement constitutes the entire agreement between you and E-Wise regarding the use of the E-Wise Website and Services.

16.2 Waiver. The failure of E-Wise to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision.

16.3 Section Titles. The section titles in this Agreement are for convenience only and have no legal or contractual effect.

16.4 Severability. This Agreement operates to the fullest extent permissible by law. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.