First DataBank End User License Agreement
1.Use Rights
1.1 License. Subject to the terms of this Agreement, WellSky grants to Customer a limited, non-transferable and non-exclusive license to use the Licensed Products solely for its business operations in the United States during the term.1.2 Restrictions
a. Customer shall have no right to use the Licensed Products on behalf of any third party, on a service bureau basis or otherwise. Customer shall obtain no implied license rights to the Licensed Products. Any right not expressly granted to Customer in this Agreement shall be retained by WellSky and its third party suppliers or licensors.
b. Customer will not alter, amend, modify or change in any respect, any of the Licensed Products unless authorized to do so by WellSky or its third party suppliers or licensors. Without limiting the foregoing, Customer shall have no right to use, modify, reproduce or distribute the Licensed Products, nor the right to license third parties to exercise any rights with regard to the Licensed Products other than as permitted in this Agreement.
2. Disclaimers
2.1 Customer shall inspect and test Licensed Products upon receipt thereof. The Licensed Products are deemed proper and correct unless, within ten (10) days after receipt thereof, Customer provides written notice and documentation of any error in the Licensed Products.
2.2 Reasonable care has been utilized in collecting and reporting the information contained in the Licensed Products and such information has been obtained from sources believed to be reliable. WellSky and its third party suppliers and licensors, however, do not warrant the accuracy of codes, prices or other data contained in the Licensed Products.
2.3 The clinical information contained in the Licensed Products is intended as a supplement to, and not a substitute for, the knowledge, expertise, skill, and judgement of physicians, pharmacists, or other healthcare professional in patient care. The absence of a warning for a given drug or drug combination should not be construed to indicate that the drug or drug combination is safe, appropriate or effective in any given patient.
2.4 WELLSKY AND ITS THIRD PARTY SUPPLIERS AND LICENSORS, MAKE NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OTHER THAN THOSE IN THIS AGREEMENT, AND FURTHER MAKE NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE ACCURACY OF THE DATA FROM WHICH THE LICENSED PRODUCTS ARE COMPILED, NOR THE COMPATIBILITY OF THE LICENSED PRODUCTS WITH CUSTOMERS’S HARDWARE AND SYSTEMS, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FIRNESS FOR A PARTICULAR PURPOSE.
2.5 IN NO EVENT SHALL WELLSKY OR ITS THIRD PARTY SUPPLIERS AND LICENSORS BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, RELIANCE, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF FIRST DATABANK HAS BEEN ADVISED OR THE POSSIBILITY OF SUCH DAMAGES.
2.6 IN NO EVENT SHALL WELLSKY’S OR ITS THIRD PARTY SUPPLIERS AND LICENSORS LIABILITY EXCEED THE AMOUNT PAID TO IT BY CUSTOMER FOR THE CURRENT FEE TERM OF THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION OR CLAIM, AND REGARDLESS OF WHETHER THE ACTION OR CLAIM IS BASED ON ANY ALLEGED ACT OR OMISSION, INCLUDING BUT NOT LIMITED TO ANY ACTION BASED ON NEGLIGENCE, BREACH OF WARRANTY OR BREACH OF CONTRACT.
3. PROFESSIONAL RESPONSIBILITY. Customer acknowledges that the professional duty to the patient in providing healthcare services lies solely with the healthcare professional providing patient care services. Customer takes full responsibility for the use of information provided by the Licensed Products in patient care and acknowledges that the use of the Licensed Products in no way is intended to replace or substitute for professional judgement. WellSky or its third party licensors do not assume any responsibility for actions of Customer which may result in any liability or damages due to malpractice, failure to warn, negligence or any other basis. Customer shall ensure that all healthcare professionals using the Licensed Products are aware of the limitations of the use of the Licensed Products.
4. DEFINITIONS. Unless defined elsewhere in this Agreement, the capitalized terms utilized in this Agreement are defined below.
4.1 “Agreement” means this First DataBank End User License Agreement, any applicable Product Addendum, and any Order Form(s) and Statement(s) of Work between WellSky and Customer for the provision of First DataBank Licensed Products.
4.2 “Licensed Products” means those FDB Knowledge Bases indicated on any Agreement as being licensed to Customer.
