FOR END USERS WHO ARE PROFESSIONAL USERS:
PLEASE READ THE FOLLOWING TERMS OF USE (“AGREEMENT”) CAREFULLY. BY ACCESSING OR USING THE LICENSED MATERIALS, YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO ACCESS OR USE THE LICENSED MATERIALS. THIS IS A LEGAL CONTRACT BETWEEN UPTODATE, INC., AND/OR ITS AFFILIATES, INCLUDING, WITHOUT LIMITATION, EMMI SOLUTIONS, LLC (“EMMI”, COLLECTIVELY WITH UPTODATE, INC., “UPTODATE”) AND THE ENTITY OR INDIVIDUAL USING ANY DATABASE, SOFTWARE, MOBILE APPLICATIONS, CONTENT, DATA, DATABASE, DOCUMENTATION, INFORMATION, MATERIALS, MOBILE APPLICATIONS, PRODUCTS, DOCUMENTATION, INFORMATION, SERVICES, SOFTWARE, SOLUTIONS OR WEBSITES CREATED, PUBLISHED OR OWNED BY UPTODATE OR ITS LICENSORS (“LICENSED MATERIALS”).
In this Agreement, the term ”you” refers to: (i) an entity entering into this Agreement for use by its employees or other affiliated individuals, (ii) an individual purchasing a subscription to the Licensed Materials under this Agreement, either on his or her own behalf (or as agent for a corporation or other entity or organization), or (iii) an individual entering into this Agreement as a condition of using the Licensed Materials through a subscription purchased by a health care provider, payer, or other institution, including a medical school or health industry enterprise ("Enterprise"), where the individual is employed by or affiliated with the Enterprise. If you are granted access to Licensed Materials pursuant to a separate subscription and license agreement between you or an Enterprise and UpToDate (“Master Agreement”), your access and use of the Licensed Materials, including the term, is as set forth in the Master Agreement and is subject to all the terms and conditions in the Master Agreement, in addition to this Agreement.
1. LICENSE: Subject to the terms and conditions of this Agreement and/or any Master Agreement, UpToDate hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable license to: (a) access and use the Licensed Materials, and (b) provide non-professional users (e.g., patients, members or other individuals) with certain content within the Licensed Materials for personal educational and informational use. For individuals with an individual subscription to the Licensed Materials, your subscription permits you to access and use the Licensed Materials for your own use only on or from a mobile device (e.g., a tablet or smartphone) or by using your unique user name and password to access and use the Licensed Materials via the Internet.
2. OWNERSHIP: UpToDate and/or its licensors shall be the exclusive owner of all rights, title and interests, including all intellectual property rights, in and to: (a) the Licensed Materials, (b) any related work product, (c) any and all translations, adaptations, developments, customizations, revisions, enhancements, modifications, improvements and corrected versions or derivations of or to the Licensed Materials, whether or not developed by or for you, and (d) Feedback (as defined below). You shall have no rights, title or interest therein or thereto, other than the limited license expressly set forth in this Agreement. UpToDate and/or its licensors do not, and shall not be deemed to, transfer to you any intellectual property rights, whether as “work-for-hire” or otherwise, other than the right to access and use the Licensed Materials in accordance with this Agreement.
3. PROHIBITED USES: Unless otherwise expressly permitted under this Agreement and/or a Master Agreement, you shall not: (a) permit access and use of the Licensed Materials by any third parties, (b) distribute, transmit, publish, transfer or commercially exploit any Licensed Materials, in whole or in part, (c) transfer or share access, usernames, or passwords to or with anyone, (d) attempt to defeat or circumvent any system designed to protect access to the Licensed Materials, (e) print, download, upload, copy, or extract the Licensed Materials, except as expressly permitted in writing, (f) modify, translate, reverse engineer, decompile, disassemble, or attempt to derive or alter any of the Licensed Materials or any underlying source code or software, or create any derivative works, including, but not limited to, transformations, translations, correlations, hashes, vectors, matrices, indices, hyperlinks, tables, extractions, algorithms, and/or models, (g) use the Licensed Materials to provide service bureau, time sharing, or similar services to third parties, (h) use the Licensed Materials to train, process or input the Licensed Materials by or into automated software, services or tools, including, but not limited to, artificial intelligence solutions, algorithms, machine learning, large language models, robots, spiders, crawlers, search engines, text or data mining (including within the meaning of European Union (“EU”) Directive (EU) of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market, as amended (“Copyright Directive”) or other like laws) or any other aggregation functionality, (i) sublicense the Licensed Materials, or make any attempt to do so, or take any action compromising UpToDate’s rights in the Licensed Materials, (j) sell, assign, transfer, rent, lease, pledge, or encumber the Licensed Materials, including access thereto, or make any attempt to do so, (k) use the Licensed Materials or the information contained therein or results derived therefrom, to develop any tools, products or services that could be competitive with the Licensed Materials or any other tools, products or services provided by UpToDate or its Affiliates; or (l) alter, remove, truncate, hinder delivery or otherwise modify the format, scope or access to, the Licensed Materials, in whole or in part, including but not limited to, any formatting, ordering or placement of the Licensed Materials or any content therein, or any copyright, disclaimer, notice, warning, data expiration date, or last updated date included in the Licensed Materials. Section 3(h) shall be construed as a reservation made by UpToDate within the meaning of Article 4(3) of the Copyright Directive or any similar other like law.
You agree that you will provide only accurate and current information through the Licensed Materials and will not impersonate anyone else in your access and use of the Licensed Materials. You agree to comply with all applicable laws, including all U.S. export laws and regulations, in connection with Your access and use of the Licensed Materials. You shall not use the Licensed Materials, any portion thereof or any information derived therefrom, to directly or indirectly develop or assist any third party in developing any content, product(s), or service(s) in any format similar to, or which could be competitive with, the Licensed Materials or any other content, product(s), or service(s) provided by UpToDate.
4. ADDITIONAL TERMS: The following additional terms, conditions or agreements apply to your access and use of specific content or certain functionality within the Licensed Materials or to a specific product or service. To the extent there is a conflict between this Agreement and any additional terms, the provisions of the additional terms will control.
A. UpToDate® Patient and/or Member Engagement products and/or services (“Emmi Solutions”) were developed for use in the United States (U.S.).
B. UpToDate® products and/or services (“UpToDate Solutions”) may include third party functionality for search (“Search Services”). End users may not use the Search Services to (i) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any of the source code of the third party functionality (except to the extent such restriction is expressly prohibited by applicable law) or any components of any Search Services, software, or their models, (ii) access or use the Search Services: (a) for High Risk Activities (i.e., activities where the use or failure of the Search Services would reasonably be expected to result in death, serious personal injury, or severe environmental or property damage); (b) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (c) to transmit, store, or process health information subject to United States HIPAA regulations except as permitted by an executed HIPAA BAA; or (d) directly or indirectly develop a similar or competing product or service or models that compete with the Search Services being used, or with respect to such a model, use output from the Search Services to substitute, replace, or circumvent its use, directly or indirectly, or create or improve models similar thereto. End users may not use Search Services to generate and distribute content intended to misinform, misrepresent or mislead, including, but not limited to, making automated decisions in domains that affect material or individual rights or well-being (e.g., healthcare, insurance, and social welfare) or for clinical purposes without review by a health industry professional in compliance with applicable laws and regulations (for clarity, non-clinical research, scheduling, or other administrative tasks is not restricted), as a substitute for professional medical advice, or in any manner that is overseen by or requires clearance or approval from any applicable regulatory authority.
5. TERM: You have obtained the right to use and access the Licensed Materials for the subscription period for which you or your Enterprise have agreed to pay subscription fees. At the end of this period, your license and your associated rights, such as technical support, will expire automatically, unless you or your Enterprise have renewed your subscription on UpToDate's then-current terms. UpToDate may embed technology in the Licensed Materials causing it to become inaccessible after your subscription period. The Agreement and your license to use the Licensed Materials will also terminate immediately if you fail to comply with any term or condition in this Agreement. In addition to any termination rights available to UpToDate under this Agreement, if you: (a) fail to pay any subscription fees in full to UpToDate when due and payable, (b) materially breach your obligations with respect to access and use of the Licensed Materials, or (c) cause or permit a security risk to, or an adverse impact on, the Licensed Materials or UpToDate’s intellectual property rights therein, UpToDate may immediately suspend your access to the relevant Licensed Materials until such breach(es) are cured. UpToDate may electronically monitor your compliance with this Agreement or otherwise audit your access and use of the Licensed Materials for compliance with this Agreement and reserves the right in its sole discretion to disable or suspend your access of to the Licensed Materials, to change and or cancel your username and password, or to disable an IP address without notice in the event of multiple concurrent logins, excessive search quantities or excessive download traffic volumes or any other suspicious or potentially threatening behavior without notice in the event of suspicious or potentially threatening behavior.
6. NO TRANSFER: You may not sublicense, assign, share, sell, rent, lease, or otherwise transfer your right to use the Licensed Materials (including your username and password) whether by merger, operation of law, or otherwise. Any attempted transfer by you of this Agreement or any of your rights or obligations hereunder shall be void and of no effect.
7. PROFESSIONAL JUDGMENT: YOU ACKNOWLEDGE AND AGREE THAT UPTODATE (INCLUDING ANY AFFILIATES) AND/OR ITS LICENSORS ARE NOT ENGAGED IN THE PRACTICE OF MEDICINE, THAT UPTODATE AND/OR ITS LICENSORS PROVIDE NO MEDICAL, PHARMACEUTICAL, BUSINESS, OR OTHER PROFESSIONAL ADVICE OR PATIENT SERVICES IN CONNECTION WITH THIS AGREEMENT, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ALL DECISIONS REGARDING MEDICAL DIAGNOSIS AND TREATMENT OF ANY PERSON UNDER YOUR CARE OR OTHERWISE. THE LICENSED MATERIALS ARE PROVIDED AS A GUIDE AND REFERENCE, AND ARE NOT INTENDED TO BE, AND SHOULD NOT BE USED AS, A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE AND JUDGMENT. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT ANYONE USING THE LICENSED MATERIALS HAS, AND RELIES ON, SUITABLE DISCRETION, EXPERIENCE, AND JUDGMENT IN MEDICAL DIAGNOSIS AND TREATMENT, INCLUDING WITHOUT LIMITATION, DETERMINING THE ACCURACY, COMPLETENESS, TIMELINESS, AND SUITABILITY OF THE LICENSED MATERIALS. YOU ACKNOWLEDGE THAT THE PROFESSIONAL DUTY TO A PATIENT IN THE PROVISION OF HEALTHCARE SERVICES (INCLUDING THE DISPENSING OF DRUG PRESCRIPTIONS, PROVISION OF DRUG INFORMATION, SUBSTITUTION OF ONE DRUG PRODUCT FOR ANOTHER, AVAILABILITY OF GENERIC SUBSTITUTABLE ALTERNATIVE DRUG PRODUCTS, AND ANSWERING QUESTIONS A PATIENT MAY HAVE) LIES SOLELY WITH YOU AND ANY HEALTHCARE PROFESSIONALS PROVIDING PATIENT CARE OR PHARMACY SERVICES. THE LICENSED MATERIALS CONTAIN GENERALIZED INFORMATION AND ARE NOT INTENDED TO TAKE INTO CONSIDERATION ANY PATIENT SPECIFIC ATTRIBUTES, INCLUDING AGE, WEIGHT, GENDER, HEALTH HISTORY, CURRENT HEALTH CONDITIONS OR CONCURRENT THERAPIES, TREATMENTS OR MEDICATIONS. STANDARDS AND PRACTICES IN MEDICINE CHANGE AS NEW DATA BECOME AVAILABLE, AND YOU ARE RESPONSIBLE FOR ENSURING THAT PROFESSIONAL USERS CONSULT A VARIETY OF SOURCES AND NOT RELY SOLELY ON THE LICENSED MATERIALS TO PROVIDE INFORMATION POTENTIALLY RELEVANT TO PATIENT HEALTHCARE DECISIONS OR COUNSELING. UPTODATE AND/OR ITS LICENSORS DO NOT PERFORM ANY INDEPENDENT STUDY OR REVIEW OF HEALTH CONDITIONS, TREATMENTS, THERAPIES OR MEDICATIONS IN CONNECTION WITH PUBLISHING THE LICENSED MATERIALS. WHILE INFORMATION MAY BE UPDATED FROM TIME TO TIME, IT MAY NOT INCLUDE THE MOST RECENT INFORMATION POTENTIALLY AVAILABLE REGARDING ANY HEALTH CONDITION, TREATMENT, THERAPY OR MEDICATION.
8. U.S. GOVERNMENT RIGHTS: The Licensed Materials provided by UpToDate are a “commercial item” as that term is defined at FAR 2.101. If acquired by or on behalf of a civilian agency, the U.S. Government acquires the Licensed Materials (including, without limitation, commercial computer software and/or commercial computer software documentation and other technical data, as those terms are defined in FAR 2.101) subject to the terms of this Agreement as specified in FAR 12.212 (“Computer Software”) and 12.211 (“Technical Data”). If acquired by or on behalf of any agency within the Department of Defense, the U.S. Government acquires the Licensed Materials (including, without limitation commercial computer software and/or commercial computer software documentation and other technical data, as those terms are defined in FAR 2.101) subject to the terms of this Agreement as specified in DFARS 227.7202-3. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in Computer Software or Technical Data under this Agreement.
9. DISCLAIMER: THE LICENSED MATERIALS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. UPTODATE AND ITS LICENSORS DISCLAIM AND EXCLUDE ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, COMPREHENSIVENESS, OR COMPATIBILITY OF ANY CONTENT CONTAINED IN THE LICENSED MATERIALS RELATING TO ANY MEDICAL TREATMENT, CONDITION, REACTIONS, DRUG USAGE, DIAGNOSIS, PRICES, EFFECTIVENESS OR APPLICABILITY TO ANY PARTICULAR PERSON, IRRESPECTIVE OF ANY COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE OF TRADE. UPTODATE AND/OR ITS LICENSORS DO NOT WARRANT THAT THE LICENSED MATERIALS OR ANY COMPONENT THEREOF WILL BE UNINTERRUPTED, THAT ITS USE OR OPERATION WILL BE ERROR OR DEFECT FREE, THAT THE LICENSED MATERIALS OR ANY COMPONENT THEREOF WILL ALWAYS BE ACCESSIBLE OR AVAILABLE, OR THAT ALL DEFECTS WILL BE CORRECTED. YOU SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE LICENSED MATERIALS AND UPTODATE AND/OR ITS LICENSORS WILL HAVE NO LIABILITY THEREFOR.
10. LIMITATION OF LIABILITY: NEITHER UPTODATE (INCLUDING ANY OF ITS AFFILIATES), NOR ANY OF ITS DISTRIBUTORS, AGENTS, SUBCONTRACTORS, LICENSORS OR SUPPLIERS WILL HAVE ANY LIABILITY WHATSOEVER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL LOSS OR DAMAGE, INCLUDING WITHOUT LIMITATION DAMAGES FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, BUSINESS INTERRUPTION, LOSS OF SALES, PROFITS, BUSINESS, GOODWILL, OR DATA, OR FOR THE INABILITY TO USE THE LICENSED MATERIALS, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FINES, COSTS, EXPENSES AND OTHER LIABILITIES, AND/OR THE SAME ARE REASONABLY FORESEEABLE. THE TOTAL LIABILITY OF UPTODATE AND ITS DISTRIBUTORS, AGENTS, SUBCONTRACTORS, LICENSORS AND SUPPLIERS, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, ANY MASTER AGREEMENT, AND/OR THE LICENSED MATERIALS, AND ANY OTHER CAUSE WHATSOEVER, SHALL NOT EXCEED, IN THE AGGREGATE FOR ANY AND ALL CLAIMS UNDER OR IN RELATION THERETO, THE TOTAL FEES PAID BY YOU TO UPTODATE IN THE TWELVE-MONTH PERIOD PRECEDING THE DATE ON WHICH THE FIRST CLAIM OR CAUSE OF ACTION AROSE.
THE ALLOCATIONS OF LIABILITY IN THIS SECTION REPRESENT THE AGREED, BARGAINED-FOR UNDERSTANDING OF THE PARTIES AND UPTODATE’S COMPENSATION HEREUNDER REFLECTS SUCH ALLOCATIONS. THE LIMITATIONS OF LIABILITY AND TYPES OF CLAIMS HEREBY LIMITED AND DISCLAIMED SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ARE INTENDED BY THE PARTIES TO APPLY REGARDLESS OF THE FORM OF THE CLAIM OR ACTION (WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, STATUTE OR OTHERWISE), AND REGARDLESS OF WHETHER ANY LIMITED REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
11. PRIVACY: The Clinical Effectiveness Privacy & Cookie Notice and/or the Emmi My-Emmi Privacy Statement apply to your access and use of the Licensed Materials. The Clinical Effectiveness Privacy & Cookie Notice is designed to inform you about the types of information that UpToDate may collect from and/or about you when you use the Licensed Materials, including such tools that may record interactions with UpToDate and/or the Licensed Materials, including, but not limited to, clicks, mouse movements, hovers and scrolling, keystrokes in non-excluded fields, IP address, location and similar meta data.
12. DATA PROTECTION: To the extent that UpToDate Processes Personal Data of Data Subjects (as such terms are defined in the Data Protection Annex) located in the European Economic Area and/or United Kingdom in performing its obligations under this Agreement, the terms displayed at https://www.wolterskluwer.com/en/solutions/uptodate/data-protection-annex-eula or such other website address as may be notified to you from time to time (the "Data Protection Annex") applies to such Processing and is incorporated into, and made part of, this Agreement. UpToDate may, in its sole discretion, amend or replace the Data Protection Annex at any time without notice to you and you should review the terms of the latest Data Protection Annex that applies to this Agreement at regular intervals.
13. FEEDBACK: You agree and acknowledge that You have the valid right to provide your Feedback without restriction. “Feedback” means your suggestions, enhancement request, recommendation, comments, corrections, discoveries, ideas, improvements, insights, opinions, preferences, or any other feedback provided by you to UpToDate in connection with your use and access of the Licensed Materials, including, without limitation, with respect to existing, new and potential products, services, technology, features and/or functions You grant to UpToDate and/or its licensors a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license to use any Feedback for any purpose. Feedback is voluntary and UpToDate and its licensors are not required to hold it in confidence. Any and all error corrections, bug fixes, patches, or changes, based on Feedback, or other revisions, enhancements, modifications, improvements and corrected versions shall be the sole property of UpToDate (or its licensors, as applicable).
14. GENERAL: In the event that any provision of this Agreement is held to be illegal, or otherwise unenforceable, such provision will be severed, stricken and replaced with a legal and enforceable provision which most closely reflects the intent with respect thereto and the remainder of this Agreement shall remain valid and continue in full force and effect. This Agreement may be modified only in writing by an authorized representative of UpToDate. UpToDate may, in its sole and absolute discretion, modify this Agreement from time to time by posting such modified Terms at https://www.wolterskluwer.com/en/know/clinical-effectiveness-terms. UpToDate’s waiver of any breach of any provision this Agreement shall not constitute a waiver of any subsequent breach of the same or any other provision hereof, or any other right in the future. This Agreement, the access and use of the Licensed Materials permitted hereunder, and any claims or disputes arising out of or related thereto, shall be enforced in accordance with the laws of the State of New York, including its statutes of limitations, without regard to any law or statutory provision which would require or permit the application of another jurisdiction’s substantive or procedural law. You agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any action arising out of or relating to this Agreement will be brought exclusively in the courts located in the State of New York, U.S. located in New York County, and/or the United States District Court for the Southern District of New York, which will have exclusive jurisdiction over any dispute or claim (including non-contractual disputes or claims) relating to this Agreement, its subject matter or formation, or the access and use of the Licensed Materials permitted hereunder, and you consent to the exclusive jurisdiction of those courts. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU KNOWINGLY, VOLUNTARILY AND UNCONDITIONALLY WAIVES ANY RIGHT YOU MAY HAVE TO A JURY TRIAL FOR ANY CLAIM OR DISPUTE RELATING TO THIS AGREEMENT. This Agreement constitutes the entire understanding between the parties relating to the subject matter of this Agreement and supersedes and extinguishes all prior and contemporaneous agreements, understandings, representations, warranties, proposals and communications, whether oral or written, between the parties relating to such subject matter, other than any Master Agreement. In addition to any other provision of this Agreement that by its terms survives expiration or termination of this Agreement, Sections 2--14 will survive in full force and effect following expiration or termination of this Agreement. Any translation of this Agreement is provided for your convenience only. The meanings of terms, conditions and representations herein are subject to definitions and interpretations in the English language. In the event of a conflict or inconsistency between the English version and any translated version, the English version shall control.
Should you have any questions regarding this Agreement, Emmi Solutions, and/or UpToDate Solutions, you may contact UpToDate at the email address or telephone numbers set forth below.
UpToDate, Inc.
[email protected]
Telephone: +1-800-998-6374 or +1-781-392-2000
ISSN: 1090-3496
