Terms last updated on: 10/22/2015

Subscription Agreement – WISE-OnCall

The WISEmed website (the “Site”) is owned and operated by Fitzroy Emu LLC (“Emu”), a New York limited liability company with its principal place of business at 655 Third Ave, New York. By clicking “Accept”, you, the subscriber (“Subscriber” or “you,” collectively with Emu, the “Parties,” and each a “Party”), and Emu make, enter into, and agree to be bound by this Institutional Subscriber Agreement (the “Agreement”). Accordingly, Emu and Subscriber agree to the following:

  1. Services
  2. “Services,” as used in this Agreement, means the following: Subject to the terms and conditions of this Agreement, Emu’s providing access to the Site during the Subscription Period, including making every reasonable effort to make the Site available at all times during the Subscription Period subject to temporary unavailability or suspension of the Site for maintenance or due to factors outside of Emu’s control.

  3. Subscriber Obligations and Acknowledgments

    1. Subscriber agrees to the User Terms and Conditions of the Site, which are available at www.wisemed.org/user_terms and incorporated herein by reference.

    2. Subscriber agrees that access to the site and its Content is restricted to a limited number of people for whom access has been purchased for, including students, faculty and other administrators (collectively referred to as “Authorized Users”).

    3. Subscriber agrees and acknowledges that all Authorized Users are required by Emu, and shall be required by Subscriber, to accept the User Terms before accessing the Site.

    4. Subscriber agrees that the Site and all its content (collectively, “WISEmed Content” or “Content”) may only be used, accessed, or viewed for Subscriber’s (and Subscriber’s Authorized Users) non-commercial personal, educational, clinical or medical research, or, in the case of faculty in connection with teaching the relevant materials to Subscriber’s students.

    5. The Site contains the following two (2) restricted areas:

      1. “Educator’s Area” for all designated teaching faculty and administrators only; and

      2. “Super Administrator Area” for Emu and developers
      3. The Subscriber agrees and acknowledges that access to the Restricted Areas and the contents of the Restricted Areas may not be in any way shared with students or other Authorized Users.

    6. Subscriber agrees and acknowledges that the Site and Content are provided for educational purposes only; that the Site uses fictitious examples created for teaching purposes only; that the Site 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 Site case may not be the correct treatment for a similar patient; and that, while Emu strives to keep the Site and Content current, the cases cannot always reflect every change or nuance in medical practice.
  4. Payment
  5. Emu will coordinate Subscriber’s payment, according to terms set forth in a separate invoice to Subscriber, for Subscriber’s use of the Site and Emu’s rendering of the Services (the “Subscription Fee”). The date on which the Subscriber clicks “Accept” will deem the “Effective Date” of this Agreement. Subscriber’s payment of the Subscription Fee shall entitle the Subscriber, subject to the terms and conditions of this Agreement, to use the Services as provided under this Agreement for one calendar year beginning on the Effective Date.

  6. Intellectual Property & Ownership
  7. All content on the Site (the “Content” or “WISEmed Content”) are and remain the copyrighted and/or proprietary materials of Emu and/or its licensors and may not be reproduced without the written consent of the copyright holder. In no event shall Subscriber either remove any copyright notices from the Site or the Content or permit electronic access to any Content other than by Authorized Users through the Site. 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 on the Site are subject to change or termination without notice. All rights not expressly granted in the terms of this Agreement are reserved to Emu and its licensors. By submitting, posting, or creating content through or in connection with the Site, you are representing that you are the owner of such material or have authorization to distribute it, and, to the fullest extent permissible, you hereby grant Emu a worldwide, royalty-free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, adapt, perform, display, distribute, and publish any such content.

  8. Authority
  9. The individual who clicks “Accept” warrants and represents that such individual has the full power and authority to enter into this agreement on behalf of the Subscriber.

  10. Indemnity
  11. Each Party (the “Indemnifying Party”) shall defend, indemnify, and hold harmless the other Party (the “Indemnified Party”) from and against any and all damages, costs, liability, and expense whatsoever (including attorneys’ fees and related disbursements) incurred by Indemnified Party by reason of any breach by the Indemnifying Party of any representation, warranty, or covenant under this Agreement.

  12. Subscription Period and Termination

    1. Subscription Period and Automatic Renewal: This Agreement shall take effect on the Effective Date and shall continue in force for one (1) year (the “Initial Term”). Thereafter it will automatically renew for one (1) year (a “Renewal Term,” collectively with the Initial Term, as applicable, the “Subscription Period”) unless terminated by either Party within thirty (30) days notice prior to the end of the Initial Term or any Renewal Term.

    2. Subscriber’s Right to Terminate: Effective upon 90 days written notice to Emu, Subscriber may terminate this Agreement for any or no reason at all. In the case of such termination Subscriber shall not be entitled to a Subscription Fee refund of any kind.

    3. Emu’s Right to Terminate: Effective immediately upon sending written notice to Subscriber, Emu may terminate this Agreement for Subscriber’s breach of any representation, warranty, obligation (including but not limited to payment), or covenant under this Agreement. Subscriber shall not be entitled to a Subscription Fee refund of any kind.

  13. Limitation of Liability & No Express or Implied Warranties
  14. By clicking “Accept”, you agree on behalf of Subscriber and its authorized users that, to the extent permitted by law, in no event will Emu or any other party who has been involved in the creation, production, promotion or marketing of the Site or the Content be liable to you or any other party including your authorized users for any special, indirect, incidental, reliance, exemplary, or consequential damages, including (but not limited to) for loss of data or profits, or damages for personal injury or wrongful death, resulting from or connected with any use, misuse or inability to use the WISEmed Content, whether based on warranty, contract, tort, or any other legal theory, even if Emu or such other party has been advised of the possibility of such damages. In no event shall Emu or such other party's liability for any damages or loss to you or any other party exceed the subscription fee paid by you for access to and use of the Site and the Content.

    Neither Emu nor any other party makes any warranty or representation, expressed or implied, with respect to the licensed materials, which are licensed "as is" other than as expressly stated herein. To the fullest extent permissible by law, all other warranties are expressly excluded and disclaimed, including without limitation implied warranties of merchantability or fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade. Any statements or representations made by any other person or entity are void. You assume all risk as to the quality, function, performance, and accuracy of the Site and Content.

  15. Miscellaneous

    1. Assignment: Neither Party may assign or transfer this Agreement without the other Party’s prior written consent, except in connection with a merger including that Party, a consolidation including that Party, a reorganization of that Party, a sale of all or substantially all of that Party’s assets, or any similar transaction including that Party.

    2. Entire Agreement: This Agreement represents the entire agreement of the parties hereto relating to the subject matter hereof, and any prior agreements, promises, negotiations, or representations, whether oral or written, not expressly set forth in this Agreement are of no force and effect. This Agreement may be modified only by a writing signed by both parties.

    3. Nonwaiver: No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of the same term, provision or condition, or of any other term, provision or condition of this Agreement.

    4. Notice to Emu: Any notice to Emu required under this Agreement shall be provided by both email and certified mail using the following:
    5. EMU
      655 Third Ave
      Seventh Floor
      New York, NY, 11249

    6. Governing Law and Venue: This Agreement shall take effect under and be governed by the laws of the State of New York without regard to its conflict of laws provisions.