TERMS OF SERVICE

 

 SAAS SERVICES AND SUPPORT

This document sets forth the terms and conditions under which Fitzroy Emu LLC, dba DosedDaily (“DosedDaily”) will provide Customers and Authorized Users of it website, mobile app, and related services with access to and use of its service (the “Service”).  These Terms of Service apply to both individual and institutional users (“Customers”), and to an institutional user’s employees and other personnel (“Authorized Users”).  Customers and Authorized Users are collectively referred to as “Users”.

Subject to the terms of this Agreement, DosedDaily will use commercially reasonable efforts to provide Customers and Authorized Users with the DosedDaily Service, solely for their own use, in accordance with the Service Level Terms (https://www.doseddaily.com/service_support/). As part of the registration process, all Users will create and/or be assigned with a unique User identifier and password.    

Subject to the terms hereof, DosedDaily will provide Customer with reasonable technical support services in accordance with the Technical Support Service Terms (https://www.doseddaily.com/service_support/).   

DosedDaily reserves the right, in its sole discretion, to make any changes to the DosedDaily Service that it deems necessary or useful to maintain or enhance the quality or delivery of the DosedDaily Service to its customers, or the competitive strength of or market for the DosedDaily’s Service, or the DosedDaily Service’s cost efficiency or performance, or to comply with applicable laws and regulations.

 

 RESTRICTIONS AND RESPONSIBILITIES

Customer and its Authorized Users will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the DosedDaily Service or any software, documentation or data related to the DosedDaily Service (“Software”); modify, translate, or create derivative works based on the DosedDaily Service or any Software (except to the extent expressly permitted by DosedDaily or authorized within the DosedDaily Service); use the DosedDaily Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; permit any third party to access or use the Service; license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit the DosedDaily Service; or remove any proprietary notices or labels.

Customer and its Authorized Users may not remove or export from the United States or allow the export or re-export of the DosedDaily Service, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. 

Customer represents, covenants, and warrants that Customer and any Authorized Users will use the DosedDaily Service only for the benefit of Customer and in compliance with all applicable laws and regulations.  Customer hereby agrees to indemnify and hold harmless DosedDaily against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s or its Authorized User’s use of DosedDaily Service. For all purposes under this Agreement, Customer shall be responsible and liable for all acts and omissions of its Authorized Users. Although DosedDaily has no obligation to monitor Customer’s use of the DosedDaily Service, DosedDaily may do so and may prohibit any use of the DosedDaily Service it believes may be (or alleged to be) in violation of the foregoing.

Customer and its Authorized Users shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the DosedDaily Service, including, without limitation, internet access, routers, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customers and Authorized Users will whitelist DosedDaily’s domains so as to ensure delivery of Content via email.  Customer shall also be responsible for maintaining the security of the Equipment, Customer’s and Authorized Users’ account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Customer’s or any Authorized User’s account or the Equipment, with or without Customer’s knowledge or consent.  Customer and the Authorized Users shall also follow any recommendations or instructions from DosedDaily which will facilitate their efficient use of the DosedDaily Service.

DosedDaily may suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other person’s access to or use of all or any part of the DosedDaily Service, without incurring any resulting obligation or liability, if: (a) DosedDaily receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires DosedDaily to do so; or (b) DosedDaily believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the DosedDaily Service beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any Authorized User is, has been, or is likely to be, involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the DosedDaily Service; or (iii) this Agreement expires or is terminated. This Section does not limit any of DosedDaily’s other rights or remedies, whether at law, in equity or under this Agreement.

Certain course and Content may be accredited by different accrediting organizations to allow continuing medical education credit to be issued.  DosedDaily will track Customer’s or the Authorized Users’ usage of such Content and issue certificates, reports and/or other documentation regarding such usage where applicable.  DosedDaily takes no responsibility in cases where accreditation is withdrawn for a course for any reason. 

 

 CONFIDENTIALITY; PROPRIETARY RIGHTS

Customer and its Authorized Users understand that DosedDaily has disclosed or may disclose business, technical or financial information relating to DosedDaily’s business (hereinafter referred to as “Proprietary Information”).  Proprietary Information includes non-public information regarding features, functionality and performance of the DosedDaily Service.  Customer and the Authorized Users agree: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use or divulge to any third person any such Proprietary Information.  

DosedDaily shall own and retain all right, title and interest in and to (a) the DosedDaily Service and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation of the DosedDaily Service or support, (c) the Service mark “DosedDaily” and all registration and trademark rights therein; and (d) all intellectual property rights related to any of the foregoing.

Except in instances where Customer and/or Authorized Users author any educational materials, DosedDaily shall also own and retain all right, title and interest in and to all educational information, course materials, and other information and data delivered to the Authorized Users as part of the Service (collectively, the “Content”). All Content is and shall remain the copyrighted and/or Proprietary Information of DosedDaily and/or its licensors and may not be reproduced without the written consent of the copyright holder. In no event shall Customer or any Authorized User either remove any copyright notices from the Service or the Content, or permit electronic access to any Content other than by Authorized Users through the Service. Any use of the Content not expressly permitted by this Agreement is a breach of this Agreement and may violate copyright, trademark, and other laws. Content is subject to change or termination without notice. All rights not expressly granted in this Agreement are reserved to DosedDaily and its licensors.

Customer and/or Authorized Users may be permitted to author and add Content to the Service.  Except as otherwise agreed under any Agreement between DosedDaily and Customer, Customer and all Authorized Users that add Content to the Service agree to assign all rights to such Content (including copyright and all other intellectual property rights) to DosedDaily.  In the case of Authorized Users under an agreement between DosedDaily and such Authorized Users’ institutional Customer, such Authorized Users may alternatively assign such rights to the institutional Customer under the terms of the Authorized User’s employment or other contract with such institutional Customer. 

Customer and/or Authorized Users submitting Content to the Service represent and warrant that all such Content is original and does not infringe upon or constitute a derivative work of any third party copyrighted material.  Customer and/or such Authorized Users shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all such Content.  DosedDaily may use the name, likeness, and biography of contributors in order to promote Content. 

In performing the Service, DosedDaily will obtain certain information and data relating to Customer and its Authorized Users (“Customer Data”).  The Customer Data, and DosedDaily’s rights and obligations with respect thereto, are set forth in DosedDaily’s Privacy Notice, as it may be updated from time to time, and which can be found here: https://www.doseddaily.com/privacypolicy/.

 DosedDaily shall have the right to display Customer’s and the Authorized Users’ names and logos on DosedDaily’s website and the Service, as well as in DosedDaily’s promotional and marketing materials, public forums, press releases, blog posts and/or social media, and to refer to the parties’ relationship in such materials.

The DosedDaily Service is programmed to perform routine data backups. In the event of any loss, destruction, damage or corruption of Customer Data caused by the DosedDaily Service, DosedDaily will, as its sole obligation and liability and as Customer’s sole remedy, use commercially reasonable efforts to restore the Customer Data from DosedDaily’s then most current backup of such Customer Data.

 

PAYMENT OF FEES

Individual Customers may pay for access via credit card to receive immediate access to the Service.  Fees payable by institutional Customers will be based on software usage, Content purchase, or customized Content requested by the institutional Customer.  These services will be outlined in estimates (the “Estimates”) which the institution will agree to electronically (the “Fees”).  If Customer’s use of the DosedDaily Service exceeds the DosedDaily Service capacity set forth on the Estimate or otherwise requires the payment of additional Fees (per the terms of this Agreement), DosedDaily reserves the right to bill Customer for such usage and Customer agrees to pay the additional fees in the manner provided herein. Unless otherwise provided in the Estimate, DosedDaily reserves the right to change the Fees or applicable charges and to institute new charges and Fees at any time upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that DosedDaily has billed Customer incorrectly, Customer must contact DosedDaily no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to DosedDaily’s customer support department.

DosedDaily may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by DosedDaily thirty (30) days after the date of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of DosedDaily Service. Customer shall be responsible for all taxes associated with DosedDaily Service other than U.S. taxes based on DosedDaily’s net income. 

 

TERM AND TERMINATION

Subject to earlier termination as provided below, the term this Agreement commences upon the Customer’s acceptance of these terms and conditions, and shall continue until terminated as herein provided.  

Either party may terminate this Agreement at any time upon at least 60 days’ notice to the other party.  If DosedDaily terminates under this Paragraph, it will refund Customer for any Fees paid for any Services that would have been provided after the effective date of termination.  If Customer terminates under this Paragraph, Customer may request a refund for such Fees, which DosedDaily may issue at its sole discretion or as may be otherwise agreed between DoeseDaily and the Customer prior to Customer’s purchase of the Service and/or the specific Content.

 In addition to any other remedies it may have, either party may terminate this Agreement upon written notice, if the other party breaches any obligation provided hereunder and the breaching party fails to cure such breach within a 60-day period; provided that the cure period for any failure of Customer to pay fees and charges due hereunder shall be 15 days from the date of receipt by Customer of notice of such failure. Upon any termination, DosedDaily will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter DosedDaily shall have no responsibility to store or retain Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, assignment of rights to Content, and limitations of liability. 

 

 WARRANTIES AND DISCLAIMER

DosedDaily shall use reasonable efforts consistent with prevailing industry standards to maintain the DosedDaily Service in a manner which minimizes errors and interruptions in the DosedDaily Service.  The DosedDaily Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by DosedDaily or by third-party providers, or because of other causes beyond DosedDaily’s reasonable control, but DosedDaily shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption that is likely to exceed three (3) hours to the Customer’s administrator. 

Customer and the Authorized Users agree and acknowledge that the Service and Content are provided for educational purposes only; that the Service uses fictitious examples created for teaching purposes only; that the Service is not intended for use in actual clinical decision-making, and in no case should be substituted for the advice of a qualified health care professional; that treatment portrayed as correct in a Service may not be the correct treatment for a similar patient; and that, while DosedDaily strives to keep the Service and Content current, the cases cannot always reflect every change or nuance in medical practice

DosedDaily does not warrant that the DosedDaily Service will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the DosedDaily Service.  THE FOREGOING STATES DOSEDDAILY’S ENTIRE LIABILITY, AND CONSTITUTES CUSTOMER’S AND THE AUTHORIZED USERS’ SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY OR FAILURE TO PERFORM ON THE PART OF DOSEDDAILY HEREUNDER.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

 

INDEMNITY

DosedDaily shall hold Customer harmless from liability to third parties resulting from infringement by the DosedDaily Service of any United States patent or any copyright or misappropriation of any trade secret, provided DosedDaily is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; DosedDaily will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the DosedDaily Service (i) not supplied by DosedDaily, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by DosedDaily, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the DosedDaily Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the DosedDaily Service are held by a court of competent jurisdiction to be or are believed by DosedDaily to be infringing, DosedDaily may, at its option and expense (a) replace or modify the DosedDaily Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the DosedDaily Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the DosedDaily Service.  THE FOREGOING STATES DOSEDDAILY’S ENTIRE OBLIGATION AND CUSTOMER’S AND THE AUTHORIZED USERS’ SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS WITH RESPECT TO THE SERVICE.

 

 LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, DOSEDDAILY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

 

MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Customer except with DosedDaily’s prior written consent.

DosedDaily may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer and its Authorized Users do not have any authority of any kind to bind DosedDaily in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of the State of New York, without regard to its conflict of laws provisions, and the parties irrevocably consent to the exclusive jurisdiction and venue of the Federal and State Courts in New York, New York, with respect to any claims arising hereunder. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.