PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SITE OR THE MATERIALS.
Welcome to Sermo.com. The website is owned and operated by Sermo, Inc., 215 First Street, Cambridge, Massachusetts, USA ("Sermo"). These website and materials are designed to comply with U.S. laws and regulations.
This is a binding agreement ("Agreement") between Sermo, Inc. and you ("You" or Your"). This Agreement governs Your use of the website (www.sermo.com) (the "Site" or "Sites"), including, without limitation, all content such as text, information, images, Sermo, Forums, Sermo Blog and Heard Around The Community online community, software and other information, services and materials (collectively, the "Materials") and all information made available to You or by You through this Site by Sermo and/or third parties.
1. OWNERSHIP OF MATERIALS
All Materials are provided by Sermo unless indicated otherwise. All intellectual property rights in the Materials (including copyrights, trademarks, trade secrets and patents) are the property of Sermo unless indicated otherwise. Sermo retains all copyrights in the individual pages, and their components, and collective works available at the Site. The Materials are copyrighted and are protected by federal and worldwide copyright laws and treaty provisions. They may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, without Sermo's prior written permission. Sermo, the Sermo logo and Know More. Know Earlier. are registered trademarks of Sermo and Sermo Blog, and Heard Around The Community are trademarks and the property of Sermo. All other names and trademarks are the property of their respective holders. Sermo.com and its Materials and services are covered by one or more pending U.S. and foreign patent applications.
2. USE LICENSE
Any unauthorized use of any Materials or information at this Site may violate patent, copyright, trademark, and other laws. Any use of this Site or the Materials shall be considered a limited use license, not a transfer of title, and is subject to the following restrictions: You may not: (a) modify the Materials or use them for any commercial purpose, or any public display, performance, sale or rental; (b) decompile, reverse engineer, disassemble or make derivative works of the Materials; (c) remove any confidentiality, privacy, patent, copyright, trademark or other proprietary notices from the Materials; (d) transfer the Materials to another person or entity in manners inconsistent with this Agreement and current Sermo policies. You agree to prevent any unauthorized copying of the Materials or information.
3. TERMINATION OF THIS USE LICENSE
Sermo may terminate this use license at any time if You are in breach of the terms of this Agreement or if You are found to be in violation of Sermo's Code of Conduct. Upon termination, You will immediately destroy any Materials in your possession, if any, and cease use of the Site.
4. CONDITIONS OF USE AND TERMS
To use any Materials, You must (a) be a currently licensed physician in the US, (b) be a registered participant of Sermo.com, and (c) be a resident in the 50 states of the United States of America, exclusive of its commonwealths, territories and possessions ("United States"). Prior to the use of this Site, You must provide Sermo with valid confirmation of (a) & (c), above, including all of the following: (i) Your name; (ii) Your mailing address (i.e., so we can mail you any accrued payments); (iii) jurisdictions of licensure; and (iv) other confirmatory demographics. By submitting that information to Sermo, You hereby certify all assertions made under this Section and agree that You authorize Sermo to confirm the veracity of such information.
5. METHODS OF PAYMENT AND TAXES
In the event any payment due under this Agreement is subject to or becomes subject to any tax or other deduction payable by You, such tax or deduction shall be paid by You, so that the payments by Sermo shall be in full and free of all liability for such tax or other deductions. You agree to pay and bear the expense of local, state and/or federal government licenses, sales and use, foreign withholding tax, property and ad valorem taxes, which may be imposed or assessed with respect to payments made by Sermo to You under this Agreement. In the case where You have or will have been paid in an amount greater than $600 in a single fiscal year, Sermo reserves the right to request and receive a Tax ID No. or other information from You prior to making any subsequent payments. Sermo shall make all payments due under provisions of this Agreement in United States dollars (US$).
6. OPPORTUNITIES AND PAYMENT POLICY
Sermo and its clients may present You with opportunities ("Opportunities") for interaction with with Sermo and its clients. Participation in Opportunities may include interactions on third party websites. You may be offered compensation for participation in certain Opportunities. Your completion of such an Opportunity does not constitute confirmation of Sermo's obligation to compensate You for such participation. Compensation for such Opportunities shall require that You are automatically returned to the Sermo Site upon completion of such Opportunity and receive a confirmation message on the Site. No payments shall be made by Sermo without Your receipt of such confirmation page. The value of an Opportunity is subject to change at any time without notice. The criteria by which an Opportunity becomes eligible for payment is subject to change at any time. Sermo reserves the right at any time to withhold or cancel any of Your payments or fees due for any reason including any actions or omissions on Your part that are not completed, unauthorized, fraudulent or otherwise violate the terms of this Agreement.
7. MODIFICATION TO PAYMENT OR TERMS
SERMO RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PAYMENT AND OTHER TERMS PROVIDED BY THIS SITE, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SITE OR BY E-MAIL DELIVERY TO YOU.
This Site is intended by Sermo to require a valid, working e-mail address and password to access and use the Materials on the Site. Certain other Materials or functionalities on the Site may require additional access codes. You are solely responsible for (1) maintaining the strict confidentiality of the e-mail address, passwords and codes (collectively, "ID(s)") assigned to you, (2) not allowing another person to use your IDs to access the Site, (3) any damages or losses that may be incurred or suffered as a result of You or Your failure to maintain the strict confidentiality of Your ID, and (4) promptly informing Sermo in writing of any need to deactivate an ID due to potential or actual security concerns. Sermo is not liable for any harm related to the theft of Your ID, Your disclosure of Your ID, or Your authorization to allow another person or entity to access and use the Site using Your ID. You agree to immediately notify Sermo in writing of any unauthorized use of Your ID.
9. MEDICAL DISCLAIMERS
The Materials available are for informational and educational purposes only and are not a substitute for the professional judgment of a health care professional in diagnosing and treating patients. Sermo or You are not permitted to advise, diagnose, or otherwise treat users of this Site. Neither the content nor any other service offered by or through this Site is intended to be for medical diagnosis or treatment. Persons accessing this information assume full responsibility for the use of the information and agree that Sermo, Inc. is not responsible or liable for any claim, loss, or damage arising from the use of the information. Sermo does not recommend or endorse any specific drugs, tests, physicians, products, procedures, opinions, "off-label" drug uses or other information that may be mentioned on the Site. Your reliance upon the Materials obtained or used by You is solely at Your own risk.
As a user of this Site, You are liable for the accuracy of the information that You provide to us, including, but not limited to, Your personal and professional representation as provided in Section 4. You hereby certify that You are not a paid consultant or have any other financial interests in the information you provide to this Site, including, but not limited to, the promotion of "off-label" drug uses, the disclosure of confidential clinical trial or other proprietary information.
11. PATIENT DATA AND LEGAL COMPLIANCE
The Site is not intended for the transmission, storing, review or receipt of confidential patient information ("Patient Information"). However, if you upload such Patient Information to the Site, the following terms apply. State and Federal laws, as well as ethical and licensure requirements of Your profession may impose obligations with respect to patient confidentiality that may limit the ability of physicians, health care providers, and persons acting on their behalf, to make use of certain Materials or to transmit certain information to third parties. You represent and warrant that You will, at all times during the term of this Agreement and thereafter, comply with all laws directly or indirectly applicable to You that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of the Patient Information, and use Your best efforts to cause all persons or entities under Your direction or control to comply with such laws. You are, at all times during the term of this Agreement and thereafter, solely responsible for obtaining and maintaining all patient consents, if applicable, and all other legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view the Patient Information You transmit, store, or receive in connection with the Site, the Materials and any third party site. You agree that Sermo, Sermo's licensors and licensees, and all other persons or entities involved in the operation of the Materials and functionalities provided through the Site, have the right to monitor, retrieve, store, review and use Patient Information, if applicable, in connection with the operation or use such Materials, and are acting on Your behalf in transmitting Patient Information.
WE CANNOT AND DO NOT ASSUME ANY RESPONSIBILITY FOR YOUR USE OR MISUSE OF PATIENT INFORMATION OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED OR RECEIVED WHILE USING THE SITE OR THE MATERIALS. WE RESERVE THE RIGHT TO AMEND OR DELETE ANY MATERIAL (ALONG WITH THE RIGHT TO REVOKE ANY MEMBERSHIP OR RESTRICT ACCESS TO SERMO) THAT IN OUR SOLE DISCRETION VIOLATES THE ABOVE.
12. GENERAL DISCLAIMERS
THE MATERIALS AND THE SITE IS PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, OR FITNESS FOR ANY PARTICULAR PURPOSE OR WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OR TRADE. IN NO EVENT SHALL SERMO, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS AND AGENTS BE LIABLE TO YOU OR ANY OTHER ENTITY FOR ANY AND ALL DAMAGES INCLUDING BUT NOT LIMITED TO DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND LOSS OF BUSINESS OPPORTUNITIES) ARISING OUT OF OR RELATING TO (1) THE USE OF OR INABILITY TO USE THE MATERIALS, OR (2) RELIANCE ON THE CONTENT AND MATERIALS OR THE SITE, OR (3) ERRORS, INACCURACIES, OMISSIONS, DEFECTS, UNTIMELINESS, SECURITY BREACHES, OR (4) INFORMATION COMMUNICATED THROUGH CHAT ROOMS OR MESSAGE BOARDS, (5) THE COMPLIANCE WITH ANY LAW, RULE, REGULATION, LAW ENFORCEMENT, GOVERNMENT OFFICIALS OR LEGAL AUTHORITY OR THE LIKE, OR (6) ANY OTHER FAILURE TO PERFORM BY SERMO OR SERMO'S CONTENT PROVIDERS. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SERMO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SERMO ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT YOUR ACCESS TO AND USE OF THE SITE, MATERIALS, OR THIRD PARTY SITES (1) WILL BE UNINTERRUPTED OR ERROR-FREE, (2) IS FREE OF VIRUSES, UNAUTHORIZED CODE, OR OTHER HARMFUL COMPONENTS, (3) IS SECURE, OR (4) WILL MEET YOUR SATISFACTION. YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS YOU BELIEVE NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF YOUR USE OF THE SITE. Because some jurisdictions may not permit each of these disclaimers and limitations, the above limitation may not apply to You. Sermo and its parents, subsidiaries, affiliates and their respective members, directors, officers, employees, stockholders and agents further do not warrant the accuracy or completeness of the information, text, graphics, links or other items contained within these Materials. Sermo may make changes to these Materials, or to the services and/or products described therein, at any time without notice. Sermo makes no commitment to update the Materials. Any description of Materials is not a representation that any such Materials are available for sale or distribution in Your location.
13. LIMITATION OF LIABILITY
IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, SERMO SHOULD HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, YOU AND SERMO AGREE THAT SUCH LIABILITY SHALL UNDER NO CIRCUMSTANCES EXCEED THE VALUE OF $50.00. YOU AND SERMO AGREE THAT THE FOREGOING LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK BETWEEN YOU AND SERMO. YOU ACKNOWLEDGE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, SERMO WOULD NOT PROVIDE THE SITE OR MATERIALS TO YOU.
You agree to defend, indemnify and hold Sermo, its parents, subsidiaries, affiliates and their respective members, directors, officers, employees, stockholders and agents harmless against any losses, expenses, costs or damages (including Sermo's reasonable attorneys' fees, expert fees' and other reasonable costs of litigation) arising from, incurred as a result of, or in any manner related to (1) Your breach of this Agreement, (2) Your unauthorized or unlawful use of the Site or the Materials, and (3) the unauthorized or unlawful use of the Site by any other person using Your ID.
15. USER SUBMISSIONS
Unless otherwise agreed in writing prior to Your submission, any material, information or other communication You transmit or post to the Site or third party site will be considered non-confidential and non-proprietary ("Communications"). Sermo will have no obligations with respect to the Communications. You agree that from time to time Sermo may invite or otherwise make You aware of certain educational, promotional or financial opportunities relating to Your Communications and profile.
Sermo hereby grants You a non-exclusive, non-transferable license to re-use or republish your own contributions made to the Sermo Site in its original or derivative form for republication elsewhere, such as in journals or other professional publications. This license is restricted to Your own contributions and does not grant You rights to republish the contributions or postings of other Sermo members. Sermo and its designees will be free to use for any purpose, copy, disclose, sell, distribute, perform, incorporate and otherwise use the Communications and all data, images, sounds, text, and other things embodied therein for any and all commercial or non-commercial purposes to the extent permitted by applicable law. Sermo shall be free to use any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever including, but not limited to, developing, manufacturing, and marketing products and services incorporating such information. You are prohibited from posting or transmitting to or from this Site any unlawful, infringing, threatening, libelous, defamatory, obscene, pornographic, or other material that would violate any law. You are prohibited from revealing the name or other personally identifying information of any other Sermo member unless that individual has previously revealed his or her own name or personally identifying information in that specific Sermo post. Any attempt to obtain unauthorized access or to exceed authorized access to the Site shall be considered a trespass and computer fraud and abuse, punishable under state and federal laws. Sermo hereby notifies You that any or all Communications with this Site can and will be monitored, captured, recorded, and transmitted to the authorities as deemed necessary by Sermo in its sole discretion and without further notice. You are reminded that Sermo does not collect personal health information about individuals. To submit a post, You must provide and upload information to the Sermo server. Within Your uploaded submission, Sermo does not collect or maintain information that would associate this submission with a specific patient or individual. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy rule, which took effect on April 14, 2003, allows for the use of de-identified health information so long as identifiers have been "stripped" and a key is not disclosed that would allow the information to be re-identified. Sermo does not possess a key to re-identify patient data.
Once a registered participant, You may provide additional information in Your personal profile describing your credentials, professional experiences, academic background, biography and the like. Your personal profile shall be available for viewing by other registered participants of Sermo and will be considered non-confidential and non-proprietary. Providing additional information in Your personal profile beyond what is required at registration is entirely optional and can be altered or removed by You at any time.
16. COOPERATION WITH GOVERNMENT AUTHORITIES
If necessary and in accordance with applicable law, Sermo will comply with local, state, federal, international and/or worldwide with all laws, rules, regulations, law enforcement, government officials, legal authority or the like.
17. LINKS TO OTHER MATERIALS
The linked sites are not necessarily under the control of Sermo and Sermo is not responsible for nor does it certify the content of any linked site or any link contained in a non-affiliated linked site. Sermo reserves the right to terminate any link or linking program at any time. Sermo has selected the links for Your convenience. The selection or omission of links is not intended to endorse any particular companies or products. If You decide to access any of the third party sites linked to this Site, You do this entirely at Your own risk. Any links to any portion of the Site shall be the responsibility of the linking party, and Sermo shall not be responsible for notification of any change in name or location of any information of the Site. Sermo reserves the right to request any web site administrator to disable or remove any link that violates any rights of Sermo or causes interruption or deterioration of Materials provided by Sermo. Failure to abide by this request shall be dealt with as provided in this section.
18. APPLICABLE LAWS
This Site is controlled by Sermo from its offices within the Commonwealth of Massachusetts. Sermo makes no representation that Materials in this Site are appropriate or available for use in other locations, and access to them from territories where their content is illegal is prohibited. Those who choose to access this Site from other locations do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export the Materials in violation of United States export laws or regulations. Any claim relating to the Materials shall be governed by the internal substantive laws of the Commonwealth of Massachusetts.
19. DISPUTE RESOLUTION
Any dispute between Sermo and You arising out of this Agreement shall be resolved first by direct communication with one or more of Sermo's management team members. Should Sermo and You be unable to resolve the dispute by communication and both You and Sermo jointly agree to do so, Sermo or You may submit any dispute arising out of or relating to this Agreement, or the breach thereof, to final and binding arbitration administered by the American Arbitration Association nearest the place of Sermo's headquarters and pursuant to Massachusetts law. The arbitrator shall fully implement the intent and purposes of this Agreement. The party found liable shall indemnify the other party for and hold them harmless from all losses, costs, and expenses (including costs of arbitration and reasonable attorneys' fees) resulting from any breach or from defending against any allegations of a breach determined to be unfounded.
20. ENTIRE AGREEMENT
Your right to access and use the Site and Materials immediately terminates without further notice upon Your breach of this Agreement or if You are found to be in violation of Sermo's Code of Conduct. Sermo may terminate this Agreement and/or Your right to use the Site and Materials at any time, with or without cause. Sections 1, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24 and 28 of this Agreement survive the expiration or termination of this Agreement for any reason whatsoever. Sermo reserves the right to discontinue or make changes to the Site and/or Materials at any time.
Sermo may assign this Agreement, in whole or in part, in its sole discretion. You may not assign Your rights under this Agreement without Sermo's prior written permission. Any attempt by You to assign Your rights under this Agreement without Sermo's permission shall be void.
23. WAIVER OF BREACH
Any failure to enforce any term or provision of this Agreement shall not be deemed a waiver of that or any other breach of that or any other term or provision of this Agreement. In addition, any failure to enforce any term or provision of this Agreement shall not constitute a waiver of a future breach of that or any other term or provision of this Agreement.
24. FORCE MAJEURE
Sermo shall not be liable for any failure or unavailability of the Site and/or the Materials or failure by Sermo to perform a transaction as a result of strikes, lockouts, calamities, acts of God, unavailability of suppliers, the loss or destruction of data, the deletion or corruption of storage media, power failures, natural phenomena, riots, acts of vandalism, acts or omissions of civil or military authority, war, terrorism or any other event beyond Sermo's control.
Sermo may deliver notice to You under this Agreement by means of electronic mail, a general notice on http://www.sermo.com, or by written communication delivered by first class U.S. mail to Your address on record in Sermo's account information. You may give notice to Sermo at any time via electronic mail to firstname.lastname@example.org or by letter delivered by first class postage prepaid U.S. mail or overnight courier to the following address:
215 First Street
Cambridge, MA 02142
Attn: Sermo Legal Department
If You object to any material found on this Site, please bring Your concerns to the attention of [email@example.com]. The Site administrator reserves the right to remove any material alleged to be infringing any third-party rights pending further investigation.
The headings of articles and sections contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
If any provision of this Agreement shall be held, be deemed or shall in fact be, invalid, inoperative or unenforceable as applied to any particular case or circumstance because of the conflicts of any provision with any law, regulation, ordinance or for any other reason, the provision or provisions in question shall not be invalid, inoperative or unenforceable in any other case or circumstance, nor shall any other provision or provisions herein contained thereby be or become invalid, inoperative or unenforceable and such provision shall be reformed so that it would be valid, operative and enforceable to the maximum extent permitted in such circumstances.
Sermo reserves the right to make changes to this Agreement at any time without advance notice. Sermo agrees to post all amended forms of this Agreement on the Site and such amended forms shall be effective immediately upon its posting. It is at all times Your responsibility to read the most current form of this Agreement before using the Site to ensure that You agree to the terms and conditions of any amendments made to this Agreement. You agree that these standards for notice of amendments to this Agreement are reasonable. You understand and agree that if you use the Sermo services or access the Site after the date on which the amendment has been posted, You consent to the such amendment.