Terms of Use
Version __
Effective Date:____
Welcome to SureMed Guided Packaging made available by Omnicell, Inc. (the “Company”). Please read these Terms of Use (“Terms”) carefully.
BY ACCESSING OR USING THIS SUREMED GUIDED PACKAGING SERVICES (THE “SERVICES”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE, CLICKING ON THE “I ACCEPT” BUTTON, OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE LEGAL ENTITY, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
IF YOU SUBSCRIBE TO THE SERVICES FOR THE INITIAL ONE (1) YEAR TERM (THE “INITIAL TERM”), THEN AT THE END OF THE INITIAL TERM YOUR SUBSCRIPTION AND THESE TERMS WILL AUTOMATICALLY RENEW FOR ADDITIONAL PERIODS OF ONE (1) MONTH EACH AT COMPANY’S THEN-CURRENT FEES FOR SUCH SERVICES UNLESS YOU (OR COMPANY) PROVIDE NOTICE THAT YOU (OR COMPANY) ARE NOT RENEWING FOR ANY ADDITIONAL MONTHS IN ACCORDANCE WITH SECTION 7.1 BELOW.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY THE COMPANY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, the Company will make a new copy of the Terms of Use available at the Website and if we make any material changes, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective thirty (30) days after posting of notice of such changes on the Website, provided that any material changes shall be effective upon the earlier of thirty (30) days after posting of notice of such changes on the Website or thirty (30) days after dispatch of an email notice of such changes to Registered Users (defined in Section 1.1 below). The Company may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. Registration.
1.1 Registering your Account. In order to access the Services you are required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Website (“Account”). As the administrator of your Account, when registering, you may create subaccounts for your users that will be accessing the Services on your behalf, referred to as “Authorized Users.” You must ensure that all such Authorized Users are bound by and comply with the Terms.
1.2 Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (a) notify Company immediately of any unauthorized use of your password or any other breach of security; and (b) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof).
1.3 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
2. Use of the Services and Services.
2.1 Right to Access. Subject to the Terms and your payment of the applicable fees for the Services (“Subscription Service Fees”) in accordance with the payment and tax provisions stated, all of the foregoing as identified on the Website, the Company grants you a nontransferable, nonexclusive, revocable, limited right to access and use the Services solely at the pharmacy site(s) identified in your registration statement. Except as otherwise stated, all fees for the Services are non-refundable.
2.2. Updates.You understand that the Services are evolving. You acknowledge and agree that the Company may update the Services with or without notifying you. You may need to update third-party software from time to time in order to receive the Services or use the Services.
2.3 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall use the Services solely for your own internal business purposes in packaging medications for your end customers and not for access or use by any third party; (b) you shall not license, sell, rent, lease, transfer, assign, reproduce, or distribute the Services; (c) you shall not access the Services in order to build a similar or competitive service; and (d) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Terms. The Company, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Services terminates the licenses granted by the Company pursuant to the Terms.
2.4 Information You Provide. Before providing or making accessible to the Company any information about a reasonably identifiable individual, you must ensure that the individual has received all notifications and provided all consents required under applicable laws relating to privacy and health records so that the Company and its subcontractors may lawfully collect, use and disclose that information for the purposes of this Agreement. You acknowledge that Company has no obligation to review any information you provide to the Service (“Content”), although Company reserves the right in its sole discretion to refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. Company has no obligation to store any of your Content that and has no responsibility or liability for the deletion or accuracy of any Content or the failure to store, transmit or receive transmission of Content. You are responsible for your use of the Services and compliance with all applicable laws and regulations relating to such use.
3. Ownership.
3.1 Services. The Services, including the information and content available in the Services, are protected by copyright laws throughout the world. You agree that the Company and its suppliers own all rights, title and interest in the Services (including but not limited to, computer code, concepts, artwork, methods of operation, moral rights and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
3.2 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to the Company through its suggestion, feedback or similar pages (“Feedback”) is at your own risk and that the Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to the Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services.
4. Indemnification. You agree to indemnify, defend and hold the Company, its parents, subsidiaries, affiliates, successors, assigns, officers, employees, agents, partners and licensors (collectively the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, the Services or any set of circumstances whereby there is any intervening action or conduct by you or personnel controlled by you (“Intervening Conduct”) between any negligence of the Company and the stated liability claim including without limitation, claims arising in contract or tort, except for claims resulting from the Company’s intentional misconduct, or claims for infringement. The Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the Services.
5. Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY PARTIES make no WARRANTY, representation OR CONDITION about the impact of YOUR use of the sERVICES. The USE OF THE SERVICES AND any clinical information contained THEREIN is intended TO SERVE as a supplement to, and not a substitute for the knowledge, expertise, skill, and judgment of physicians, pharmacists, or other healthcare professionals 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. as such, in no event will the company parties BE LIABLE FOR ANY DAMAGES ASSOCIATED WITH YOUR use of the SERVICES.
THE COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THE COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE COMPANY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
6. Limitation of Liability. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE COMPANY PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY ARISING OUT OF OR IN CONNECTION WITH THE TERMS, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES; (2) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (3) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY THE COMPANY AS A RESULT OF YOUR USE OF THE SERVICES IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT CLAIM. IF YOU HAVE NOT PAID COMPANY ANY AMOUNTS IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT ANY SUCH CLAIM, THE COMPANY’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED FIFTY DOLLARS ($50). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU.
7. Term and Termination.
7.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect for a period of one (1) year (the “Initial Term”), unless terminated earlier in accordance with the Terms. At the end of such Initial Term, your subscription to the Services and the Terms will automatically renew for additional periods of one (1) month each (“Renewal Term”), unless either party notifies the other in writing of its intent not to renew, with such notice being provided at least thirty (30) days prior to the end of the Initial Term or the then-current Renewal Term.
7.2 Termination of Services by Company. If you have materially breached any provision of the Terms, have failed to pay the applicable Subscription Service Fees, or if the Company is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), the Company has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in the Company’s sole discretion and that the Company shall not be liable to you or any third-party for any termination of your Account.
7.3 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related Content and other information associated with or inside your Account (or any part thereof). All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
8. Remedies. In the event that the Company determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Services, the Company reserves the right to: (a) warn you via e-mail (to any e-mail address you have provided to the Company) that you have violated the Terms; (b) discontinue your subscription to any Services; and/or (c) pursue any other action which the Company deems to be appropriate.
9. General Provisions.
9.1 Electronic Communications. The communications between you and the Company use electronic means, whether you visit the Services or send Company e-mails, or whether the Company posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from the Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
9.2 Notices. Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following address: Omnicell, Inc. 590 E. Middlefield Road, Mountain View, California 94043, Attn: Office of General Counsel. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
9.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without the Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
9.4 Force Majeure. The Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
9.5 Disputes. Except as provided below, all disputes arising from or relating to the Terms shall be resolved as follows: the senior management of both parties shall promptly meet to attempt to resolve such disputes. If such senior management cannot resolve the dispute within two (2) business days (or other mutually acceptable time frame), either party may make a written demand for formal dispute resolution and specify therein the scope of the dispute. Within ten (10) business days after such written notification, the parties agree to meet for one (1) day with an impartial mediator (mutually and reasonably agreeable by the parties) and consider in good faith dispute resolution alternatives other than litigation. If an alternative method of dispute resolution is not agreed upon within twenty (20) business days after the written demand for formal dispute resolution, either party may begin litigation proceedings and the parties agree to the exclusive jurisdiction of the courts located in California for any such action or proceeding. This provision shall not preclude either party from seeking equitable relief to protect its interests, including but not limited to seeking preliminary and permanent injunctive relief, as well as money damages, in any dispute involving its confidential information or intellectual property rights.
9.6 Governing Law. The Terms shall be governed in accordance with the laws of the State of California, without reference to conflict of laws principles that would require the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Terms.
9.7 Independent Contractors. The relationship of the Company and you established in the Terms is that of independent contractors, and nothing contained in the Terms shall imply a partnership, joint venture, principal and agent, or employer and employee relationship between the parties. Neither party shall have the right, power, or authority to create any obligation, expressed or implied, on behalf of the other party.
9.8 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.9 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
9.10 Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
9.11 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
End of Terms
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