Terms of Use
PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THIS WEBSITE. BY VISITING OR OTHERWISE USING THIS WEBSITE: (A) YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS OF USE (THE “AGREEMENT”); (B) IF ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BIND THAT ENTITY; (C) YOU ACCEPT THIS AGREEMENT AND AGREE THAT YOU AND ANY LEGAL ENTITY YOU REPRESENT, AS THE CASE MAY BE, ARE LEGALLY BOUND BY ITS TERMS; AND (D) YOU AGREE TO FULLY COMPLY WITH AND BE BOUND BY THE TERMS SET FORTH IN THIS AGREEMENT.
THIS AGREEMENT CONTAINS WARRANTY DISCLAIMERS AND OTHER PROVISIONS THAT LIMITS OUR LIABILITY TO YOU. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AND IN THEIR ENTIRETY. TO THE EXTENT THAT THESE TERMS OF USE CONFLICT WITH THE PROVISIONS OF A SEPARATE WRITTEN AGREEMENT EXECUTED BY YOU AND ALCHEMY, THE TERMS OF SUCH SEPARATE WRITTEN AGREEMENT WILL PREVAIL.
1. DEFINITIONS. As used in this Agreement, the parties agree to the following definitions:
1.1. “Agreement” means these Terms of Use.
1.2. “ALCHEMY” means Alchemy Healthcare Solutions LLC.
1.3. “Authorized User” means a person employed by Licensee, or otherwise bound by a legal obligation to comply with the terms of this Agreement, and permitted by Licensee to access or use the Content, or such other person or entity approved in writing by ALCHEMY to access or use the Content under the terms of this Agreement.
1.4. “Content” means the data and information supplied by ALCHEMY, its affiliates and their respective licensors and made available within or through www.BuyandBill.com including any Third Party Material.
1.5. “Documentation” means, individually or collectively, any ALCHEMY documentation manual, user manual, developer manual, implementation manual, release note, web-site notice, read-me note, specification, technical bulletin, or similar information and documentation related to the Content, however titled, including updates and modifications thereto, in any form, supplied or otherwise made available to you by ALCHEMY.
1.6. “Licensee” means you or the entity on whose behalf you are using the Website.
1.7. “Permitted Use” means the use the Content only as a source of drug product information for Licensee’s internal business operations to analyze drug pricing and coding information, subject to the restrictions set forth in the Agreement.
1.8. “Third Party Material” means any data, information, content, software, or other material supplied or licensed to ALCHEMY by third parties and made available as part of the Content.
1.9 “Website” means www.Buyand Bill.com.
2. LICENSE GRANT — RESTRICTIONS — GENERAL USE PROVISIONS.
2.1. License Grant. Subject to all the conditions in this Agreement, ALCHEMY grants to Licensee, and Licensee accepts, a limited, non-exclusive, non-transferable and revocable license to access and use the Content (including Documentation) in conformance with the Permitted Use. This is not a sale of the Content or of a copy of the Content. Licensee agrees that, as between ALCHEMY and Licensee, all right, title and interest in and to the Content, including all copyrights and other intellectual property inherent therein or appurtenant thereto, are, and at all times shall remain, the sole and exclusive property of ALCHEMY, its affiliates or licensors. Rights not expressly granted to Licensee are reserved to ALCHEMY. Any use or attempted use of the Content other than for the Permitted Use and in accordance with this Agreement is prohibited.
2.2. Conformance to Permitted Use; Geographic Scope. Only Authorized Users may access the Content, and Authorized Users may only use the Content in accordance with the Permitted Use. The Content was developed for use only in the United States (including United States territories), and in the case of certain identified types of Content, for use in Canada. Authorized Users may not store, use, or access the Content outside of the United States and Canada.
2.3. Authorized Users Compliance. Licensee shall use reasonable means to ensure Authorized Users’ compliance with the terms of this Agreement. Licensee shall be directly liable for any breach of the terms of this Agreement by any Authorized User. Licensee shall promptly report to ALCHEMY any breach of this Agreement by an Authorized User, but in no event later than two (2) business days after becoming aware of an actual breach.
2.4. License Restrictions. Unless expressly within the scope of a Permitted Use, neither Licensee nor any Authorized User may:
(a) use, permit the use of, permit access to, or distribute the Content to any third-party, (b) print all or any substantial portion the Content, (c) modify, translate, reverse engineer, decompile, disassemble, or attempt to derive or alter any of the Content or any underlying source code or software, (d) use the Content to provide service bureau, time sharing, or similar services to third parties, including any parent, subsidiary, or other affiliate of Licensee, (e) distribute or sublicense the Content, or make any attempt to do so, (f) sell, assign, transfer, rent, lease, pledge, or encumber any Content or make any attempt to do so, (g) alter, remove, or hinder delivery of any Content, including without limitation any formatting, ordering or placement of Content, or any copyright, disclaimer, warning, data expiration date, or last updated date included in the Content, (h) take any action compromising the enjoyment and use of the Content by any other ALCHEMY customer, or (i) take any action compromising ALCHEMY’s rights in the Content. This Section shall not prohibit Licensee from making a copy of Content as part of Licensee’s automated information archival, backup, or disaster recovery systems, provided that such copy is not otherwise used or restored except for a Permitted Use.
2.5. Compliance with Laws. Licensee and its Authorized Users shall use the Content and the information contained therein and results derived therefrom, in compliance with all applicable laws, including but not limited to applicable federal, state or provincial, and local laws, rules, and regulations.
2.6. Additional Restrictions for Third Party Material. Additional terms and conditions may apply to Licensee’s use of Third Party Material, if any, that is included in the Content. Such additional terms and conditions, if applicable, shall be presented in writing (including through Documentation) to Licensee. In the event of changes in the terms applicable to such material, ALCHEMY reserves the right to terminate access to the Third Party Material, modify the Third Party Material accessible hereunder, or add additional terms and conditions applicable to the Third Party Material, in each case effective immediately upon notice to Licensee. In the event that ALCHEMY exercises its rights under this Section, Licensee’s recourse is limited to requesting a pro-rata refund of any prepaid but unused License Fees specifically relating to affected Content containing the Third Party Material based on the number of months remaining in the applicable Fee Term, as reasonably determined by ALCHEMY.
2.7. No Competition. Under no circumstances shall Licensee use the Content, any portion thereof or any information derived therefrom, to develop or to 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 Content or any other content or service(s) provided by ALCHEMY or its affiliates.
2.8. Use of Names. Except as provided in this Section, neither ALCHEMY nor Licensee will use the name of the other party, or any trademark or service mark owned by the other party, except: (a) as expressly permitted in this Agreement, (b) as authorized in writing by the other party, or (c) as required by law or the rules of a stock exchange listing a party’s securities. At no time shall Licensee state or imply to any third party that ALCHEMY has any responsibility or liability for any services of Licensee. Licensee shall attribute to ALCHEMY copyright ownership of any Licensed Content that Licensee includes in any user manuals, screen displays and reports, or that Licensee electronically displays, prints or distributes in hard copy to an Authorized User to indicate that ALCHEMY is the owner and source of the Content.
2.9. Confidentiality. Licensee shall treat the Agreement and any License Fees related to the Agreement as ALCHEMY's confidential information and may not disclose this Agreement or any other terms herein or fees charged to Licensee by ALCHEMY to any third party. Further, Licensee agrees that the Content, and the applicable processes, formulas, algorithms, system architecture, database schemas and production methodology used in producing the Content are the proprietary property of ALCHEMY and/or its affiliates and/or ALCHEMY’s licensors, and (b) the Content is protected by copyright, trade secret and other intellectual property laws (collectively, “Confidential Information”). Prior to executing this Agreement or promptly upon receiving notice that any law (including without limitation any Freedom of Information Act), legal process, judicial order, or governmental or regulatory mandate requires or may require Licensee to disclose any portion of the Agreement or any Confidential Information, Licensee shall promptly notify ALCHEMY so that ALCHEMY may take appropriate action, at its own expense, to object to such disclosure. ALCHEMY acknowledges that if Licensee is a public entity, Licensee’s obligations under this Section may be limited by law, and nothing in this Section shall be deemed to require Licensee to act in contravention of such applicable law.
2.10. Implementation; Updates. Licensee agrees to obtain, install and maintain, at its expense, all third-party services, hardware, non-ALCHEMY software and other technology necessary to access, update and use the Content. ALCHEMY is not required to provide any updates, enhancements or modifications to the Content or as otherwise is generally made available to all users of such Content at no additional fee while Licensee is under active subscription for such Content.
2.11. Licensee Modifications. Licensee shall not modify, or create a derivative work from, the Content without the explicit, prior written permission from ALCHEMY. Licensee assumes all liability for and agrees to indemnify, defend and hold ALCHEMY harmless with respect to any modification made by Licensee or on behalf of Licensee at the direction or request of Licensee.
2.12. Professional Responsibility.
2.12.1 Licensee acknowledges that different types of Content included with the Content have different intended uses, scopes, capabilities, and limitations. Licensee further acknowledges that ALCHEMY has no way to verify that any Authorized User has the knowledge and training necessary to properly and effectively use the Content. Licensee shall be solely responsible for ensuring Authorized Users have the training necessary to properly and effectively use the Content.
2.12.2. The Content is intended to serve as an informational reference and not as a complete reference source. The Content does not include information concerning every health condition, therapeutic agent, laboratory test, or diagnostic procedure available. Licensee acknowledges and agrees that ALCHEMY provides no business, medical, pharmaceutical, or other professional advice or patient services in connection with this Agreement or as part of or as a result of the provision of the Content. Licensee agrees that ALCHEMY has no ability or responsibility to determine the appropriateness of the use of Content by Licensee or any Authorized User in the course of their business or practice of healthcare, or to determine the appropriateness of the use of the Content with any individual or to determine whether an individual understands his or her health conditions, medications, or other potential treatment options.
2.12.3 The Content is clinically oriented and intended to be used only by Authorized Users. Authorized Users will rely on their own discretion, experience and judgment in medical diagnosis and treatment, including without limitation, determining the correctness, completeness, timeliness, and suitability of the Content for individuals. Licensee acknowledges 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 the healthcare professionals providing direct patient care or pharmacy services. Licensee acknowledges that the medical and related Content supplied by ALCHEMY, its affiliates and their respective licensors and made available within the Content as applicable: (a) is not a substitute for verbal medication counseling or physical demonstration of an administration technique for a patient or caregiver by a healthcare professional, (b) may be confusing to certain patients or caregivers when not interpreted by a healthcare professional, and (c) is designed to support the verbal information transfer by healthcare professionals and to serve as a noncomprehensive take home reference source for patients or caregivers.
2.12.4 Standards and practices in medicine change as new data become available. Licensee acknowledges that: (a) Authorized Users should consult a variety of sources and not rely solely on the Content to provide information potentially relevant to patient care decisions or counseling, and (b) Authorized Users must also regularly review manufacturer published product information regarding prescription drugs for potential changes in usage, dosing, contraindications, interactions, and adverse effects.
2.13. Trial License. During the Term, upon written request by Licensee, and written approval by ALCHEMY at ALCHEMY’s sole discretion (which request and approval may be by fax or other electronic means), ALCHEMY may grant Licensee a limited, one-time, trial, non-exclusive, non-transferable license solely to evaluate ALCHEMY content not previously included in the Content (“Trial Content”). The evaluation period shall not exceed ninety (90) days unless the parties otherwise agree in writing (“Trial Period”). In the event that ALCHEMY grants a trial license, all the provisions of this Agreement apply to the use of the Trial Content except Section 4, and in all other respects the Trial Content is considered to be included in the Content during the Trial Period. Licensee may only use the Trial Content for purposes of evaluating the suitability of the Trial Content for use by Licensee. No updates to the Trial Content will be provided during the Trial Period. At the conclusion of the Trial Period, Licensee shall: (a) cease use of the Trial Content, (b) delete any and all copies of the Trial Content or data derived therefrom from any applicable computer system, and (c) at Licensee’s expense, return to ALCHEMY any physical copies of the Trial Content in Licensee’s possession. In order for Trial Content to become Content and be included in this Agreement after the Trial Period, the parties must agree to add the Trial Content to the Content in a signed amendment to the Agreement.
2.14. Additional Conditions for Certain Software. If the Content includes application program interfaces (APIs), applications or other software sent to, or downloaded by Licensee, Licensee shall not include the Content in software made available under an open-source license.
2.15. Additional Conditions for a Permitted Use That Includes Display of Content. Licensee or any Authorized User shall be permitted to print or distribute a hard copy of any Content, provided that Licensee obtains ALCHEMY’s prior written consent and ensures that such hard copy displays the Content as formatted, ordered, and placed by ALCHEMY, attributes copyright ownership to ALCHEMY and includes any disclaimer, warning, data expiration date, or last updated date included by ALCHEMY.
2.16. Information Analysis. ALCHEMY may collect information regarding queries submitted through the Content, content reviewed, and other uses of the Content by Licensee and Authorized Users; provided, however, the information will be de-identified and collected in the aggregate so as not to identify individual customers. Licensee agrees that ALCHEMY owns such de-identified, collected information. ALCHEMY will not receive or collect personally identifiable health information.
2.17. Content Modification and Development by ALCHEMY. Licensee acknowledges that in the regular course of its business, ALCHEMY may determine that modifications to the Content, format, layout, scope or functionalities of the Content, beyond those associated with ordinary Content updates, are necessary. ALCHEMY will not be required to provide notice of such modifications unless reasonably determined to adversely impact licensees generally. In such event, ALCHEMY will give Licensee reasonable written notice before any such material modifications are implemented.
3. TERMINATION/CHANGES.
3.1 To the extent permitted by law, ALCHEMY reserves the right to terminate your access to and use of the Website or Content without notice and liability, including, without limitation, if Licensee fails to pay in full any fees when due or we believe Licensee’s conduct fails to conform to these Terms of Use, as amended. Licensee agrees that ALCHEMY will not be liable to Licensee or to any other party for any modification, suspension or discontinuance of the Website or any part thereof.
3.2 Upon termination of this Agreement for any reason, Licensee shall: (a) immediately cease all use of the Content, (b) take such steps as are necessary to prohibit further use of the Content, including by Authorized Users, and (c) if requested by ALCHEMY, furnish a written description of the steps taken. Within thirty days of expiration or termination of this Agreement, Licensee shall remove the Content from Licensee’s computer system, if so installed, and, at ALCHEMY’s option, either return to ALCHEMY or destroy all copies of the Content, in whole and in part, in Licensee’s possession or under its control and, if so requested by ALCHEMY, deliver to ALCHEMY a certificate executed by an officer of Licensee attesting to the return or destruction. If required by law or a regulatory agency, Licensee may retain data from the Content for archival purposes only if the data was derived in accordance with the Permitted Use.
3.3 The provisions of this Agreement that by their nature are intended to survive expiration, non-renewal, rescission, or termination of this Agreement shall do so.
4. INDEMNIFICATION. Licensee shall defend, indemnify, and hold harmless ALCHEMY and its affiliates, and their respective officers, directors, employees, contractors and agents, from and against all claims, damages, liabilities, and expenses (including reasonable attorneys’ fees and court costs) arising out of, connected with, or resulting in any way from any third party action, claim, or any other assertion of legal right (including by a government entity) even if the Claim is groundless, fraudulent, or false, in connection with, resulting from, arising out of, or relating to, Licensee’s or Authorized Users’: (a) use of the Content, (b) provision of any Content to others, and (c) modification of the Content. ALCHEMY acknowledges that if Licensee is a public entity, Licensee’s obligations under this Section may be limited by law, and nothing in this Section shall be deemed to require Licensee to act in contravention of such applicable law, but Licensee will otherwise provide the indemnifications to the full extent permitted subject to any statutory limitations.
THE INFORMATION, CONTENT AND DOCUMENTATION AVAILABLE THROUGH OUR WEBSITE ARE PROVIDED “AS-IS,” “AS AVAILABLE,” WITH “ALL FAULTS”, AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). OUR WEBSITE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. ALCHEMY HAS NO LIABILITY WHATSOEVER FOR YOUR USE OF OUR WEBSITE OR SERVICES. ALCHEMY CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE WEBSITE OR CONTENT, INCLUDING, BUT NOT LIMITED TO, RELATED SOFTWARE.
ALCHEMY DOES NOT REPRESENT OR WARRANT THAT OUR CONTENT, OUR SERVICES, OR ANY SOFTWARE FOUND WITHIN ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT ANY SUCH ITEMS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH CONTENT OR SOFTWARE, AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND REMOVE VIRUSES. ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES SOMEHOW ATTRIBUTED TO OUR CONTENT, SERVICES, AND RELATED SOFTWARE IS DISCLAIMED. WITHOUT LIMITING THE FOREGOING, LICENSEE UNDERSTANDS AND AGREES THAT IT DOWNLOADS OR OTHERWISE OBTAINS CONTENT AND RELATED SOFTWARE FROM OR THROUGH THE WEBSITE OR SERVICES AT LICENSEE’S OWN RISK AND THAT LICENSEE WILL BE SOLELY RESPONSIBLE FOR ITS USE THEREOF AND ANY DAMAGES TO ITS MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT.
ALCHEMY IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION AND LIMITATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LICENSEE AND ALCHEMY. THE WEBSITE AND CONTENT WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM ALCHEMY THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
ALCHEMY shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions from THE Website or CONTENT, (b) the unavailability or interruption of THE Website or CONTENT, (d) THE use of THE Website our Content, (e) the content contained on our Website or Services, or (f) any delay or failure in performance of THE Website beyond ALCHEMY’S reasonable control.
IN NO EVENT WILL ALCHEMY OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF OUR WEBSITE, CONTENT, SERVICES, OR ANY RELATED SOFTWARE, ACCESSED THROUGH OR DOWNLOADED FROM OUR WEBSITE OR SERVICES, EVEN IF ALCHEMY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ALCHEMY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR WEBSITE AND/OR SERVICES ACCESS DURING THE PREVIOUS MONTH OF YOUR MEMBERSHIP PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
5. Miscellaneous.
5.1 Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties and supersedes prior letters of intent, trial licenses, quotes, proposals, negotiations, representations, or understandings, whether written or oral, with respect to the subject matter hereof. The terms of a purchase order or similar instrument issued by Licensee will not amend, supersede, or otherwise affect the terms of this Agreement. This Agreement may not be amended unless such amendment is in writing, states it is an amendment to this Agreement, and is signed by authorized representatives of all parties to this Agreement.
5.2. Waivers; Remedies. Failure of a party to enforce a provision of this Agreement is not a waiver of such provision or of the right of the party thereafter to enforce the provision. Remedies provided for in this Agreement or available at law are cumulative. Election of one or more remedies is not a waiver of other available remedies.
5.3. Assignment; No Third-Party Beneficiary. Neither this Agreement nor the rights granted hereunder may be assigned, in whole or in part, voluntarily or by action of law, by Licensee without the prior written consent of ALCHEMY. Licensee’s duties may not be delegated by Licensee, voluntarily or by action of law, in whole or in part, without the prior written consent of ALCHEMY. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies upon any person or entity other than the express parties to this Agreement.
5.4 Independent Contractor. The parties are independent contractors, and this Agreement does not make either party the employee, agent, partner, or representative of the other for any purpose. Neither party is granted any authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party.
5.5 Governing Law. This Agreement will be governed in all respects by the laws of the state of Florida, without regard to any conflicts of law principles, decisional law, or statutory provision which would require or permit the application of another jurisdiction’s substantive law. Any suit hereunder will be brought solely in Florida County, Florida. Each party agrees to subject itself to the exclusive personal jurisdiction of such courts and shall not contest such jurisdiction or the venue of such courts or the convenience of the forum. If the Uniform Computer Information Transaction Act (“UCITA”) is enacted as part of the law of the State of Florida, this Agreement will be governed by the law as it exists without reference to or application of the UCITA. The application of the United Nations Convention for Contracts for the International Sales of Goods is expressly stated to be inapplicable.
5.6 Notice. Except as otherwise set forth herein, notices, demands and approvals given under this Agreement shall be in writing and delivered in person, via certified mail, or recognized same-day or overnight courier, addressed as set forth on the signature page below. If no address for Licensee is set forth on the signature page, the address for notice to Licensee shall be the address set forth in Exhibit 1, Section A. Either party may change its address for notices and authorizations by giving written notice of the new address to the other party as provided herein. Such notice or authorization is deemed received upon the earlier of: (a) actual receipt by the other party, or (b) on (i) the date of transmission if sent by same-day courier, or (ii) on the business day after the date of transmission. Such notice or authorization is deemed received upon the earlier of (1) actual receipt by the other party; or (2) on (i) the date of transmission if sent by same-day courier; or (ii) on the business day after the date of transmission if sent by recognized overnight courier.
5.7 Interpretation; Counterparts. Section headings are given for convenience only and do not limit the applicability or affect the meaning of any provision. The use of “including” means “including but not limited to.” The word “and” includes “or” and vice versa. References to days are to calendar days, not business days. The parties contributed equally to the drafting of this Agreement and this Agreement shall be construed without regard to any presumption or rule requiring construction against the party causing such document to be drafted. If any provision of this Agreement or its application to particular circumstances is found by a court to be invalid or unenforceable, that provision (or its application to those circumstances) shall be deemed stricken and the remainder of this Agreement (and the application of that provision to other circumstances) shall continue in full force and effect insofar as it remains a workable instrument to accomplish the intent and purposes of the parties. The severed provision will be replaced with a provision that will come closest to reflecting the intention of the parties underlying the severed provision but that will be valid, legal, and enforceable; provided, a finding by a court that Licensee’s obligation to pay fees under Section 4 is to be severed from this Agreement terminates this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
5.8 Force Majeure. Neither party to this Agreement shall be liable nor deemed in default for any delay or failure in performance under this Agreement during such period of delay or failure resulting from acts of nature or God, civil or military authority, acts of the public enemy, terrorism, war, fires, explosions, earthquakes, hurricanes, floods, vandalism, labor strikes, epidemics, embargo, wide-spread Internet service outages, failure of a World Wide Web hosting service, telecommunications disruptions, or any cause beyond the reasonable control of the party affected thereby. Each party shall utilize good faith efforts to perform its obligations under this Agreement in the event of any such occurrence. Force Majeure does not include the financial difficulties of a party.
5.9 Government End-Users. The Content, all its components, and the information contained therein qualify as “commercial computer software” and “commercial computer software documentation” under Federal Acquisition Regulation (“FAR”) 2.101 and 12.212, paragraph (a)(1) of the Department of Defense FAR Supplement (“DFARS”) clause 252.227-7014, “Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation,” and DFARS 227.7202. Consistent with FAR 12.212 and DFARS 227.7202, all U.S. Government Licensees/Authorized Users acquire the Content, Content and/or Technical Documentation with only those license rights set forth in this Agreement.
