The Terms and Conditions below were updated on October 1, 2003.
THESE TERMS AND CONDITIONS FORM PART OF THE ANNUAL SUBSCRIPTION AGREEMENT ("AGREEMENT") BETWEEN THE FOUNDATION FOR ADVANCEMENT OF INTERNATIONAL MEDICAL EDUCATION AND RESEARCH ("FAIMER") AND THE ORGANIZATION NAMED ON THE AGREEMENT ("SUBSCRIBER").
- Database Access and License.
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| 1.1 |
Upon signing of the Agreement by Subscriber, and acceptance and signing by FAIMER, FAIMER will provide Subscriber with Internet access to the International Medical Education Directory maintained by FAIMER (the “Licensed Database”). Subject to all provisions of this Agreement, FAIMER grants Subscriber a non-exclusive, worldwide, transferable (in accordance with this Agreement), royalty-free license (the “License”) to use the Licensed Database, including the right to download copies of the Licensed Database by Internet File Transfer Protocol (“FTP”). The License includes any updates to the Licensed Database by FAIMER made during the term of the License. |
| 1.2 |
The License may only be used by authorized representatives of the Subscriber. Subscriber acknowledges that FAIMER claims ownership of all intellectual property and other rights in and to the Licensed Database, except for those rights expressly licensed by FAIMER to Subscriber under this Agreement. Any material breach of the License by Subscriber shall be grounds for termination of the License and this Agreement. FAIMER reserves the right to suspend access to the Licensed Database by Subscriber in the event that FAIMER, in its sole discretion, determines that there has been or may have been a material breach of this License. |
| 1.3 |
Except as expressly permitted provided in this Agreement, Subscriber shall not, nor permit any third party to: (i) distribute, export, copy (except for its internal use), transfer, sell, loan, lease, license, sublicense, give, disseminate, publish, assign, (whether directly or indirectly, by operation of law, or otherwise), or transmit the Licensed Database by any medium; or (ii) modify, adapt, or create derivative works based upon the Licensed Database or any part thereof. Nothing in this provision shall restrict Subscriber from using the information in the Licensed Database during the term of the License to communicate with institutions listed in the database or from creating subsets or analysis of information in the Licensed Database for its own internal use. |
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| 2.1 |
The term of the License shall be one year. Subject to agreement by FAIMER, Subscriber may renew the License by paying the current annual fee for subscription to the Licensed Database, which shall be posted on the Internet web site maintained by FAIMER. |
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- Disclaimer of Warranties and Limitation of Liability.
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| 3.1 |
Except as expressly set forth in this agreement, regardless of any advertisements, marketing materials, or web sites, FAIMER hereby disclaims all warranties, express or implied, relating to the licensed database and all modifications or updates thereto, regardless of form, and related documentation, including warranties of non-infringement, freedom from interference with enjoyment, merchantability, quality, accuracy, fitness of resulting work product, fitness for a particular purpose or that the licensed database will generate certain results. |
| 3.2 |
Subscriber hereby acknowledges and agrees that except as expressly set forth in this agreement: (a) no other representations and warranties have or will become part of the basis of the bargain between the parties under this agreement or otherwise, and (b) subscriber has not relied on any promises or other commitments other than as expressly included in this agreement, whether, in the case of (a) or (b), contained in or based on advertisements, marketing materials, product descriptions, product samples, models or demonstrations, or other materials, discussions or means. |
| 3.3 |
In no event will FAIMER or the Educational Commission for Foreign Medical Graduates or any of their directors, officers, employees or affiliates be liable to subscriber under any contract, negligence, strict liability or other legal or equitable theory for any indirect, special, consequential or incidental damages whatsoever (including, but not limited to, damages for loss of business profits, business interruption, loss of business information and the like), arising from subscriber’s use of (or inability to use) the licensed database. |
| 3.4 |
FAIMER’s total liability under this agreement is limited to direct damages of no more than the annual subscription fee in effect at the time in which any damage to subscriber is first incurred. Subscriber acknowledges and agrees that the foregoing amount is not an estimate of damages and will not be admissible for any purpose in any action against FAIMER. This limitation of liability is independent of, and shall survive any failure of, any exclusive remedies otherwise provided for in this agreement. |
| 3.5 |
FAIMER does not warrant, and expressly disclaims any warranties, express or implied, that the Licensed Database will be accessible over the Internet or work on Subscriber’s computer hardware or in connection with any operating systems or other computer programs, regardless of whether the same were selected or recommended by FAIMER. |
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| 4.1 |
Each party represents and warrants that it has the right, power and authority to enter into this Agreement. |
| 4.2 |
Either party may freely assign this Agreement upon written notice to the non-assigning party, provided that the assignee signs and provides to the non-assigning party a copy of this Agreement. The License may only be transferred as part of an assignment of this Agreement. This Agreement shall be binding upon the parties and their heirs, successors and permitted assigns. This Agreement shall be governed by and construed in accordance with the law of the Commonwealth of Pennsylvania and the federal law of the United States without regard to any conflicts of laws principles. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. |
| 4.3 |
This Agreement contains the entire understanding of the parties with respect to the subject matter contained herein. There are no promises, covenants or undertakings other than those expressly set forth. |
| 4.4 |
The parties to this Agreement are independent contractors. Neither party under this Agreement shall be deemed an employee or employer of the other. Neither party shall have the right to control the employees or agents of the other. This Agreement shall not be construed as a partnership agreement, and the parties to this Agreement are not partners. This Agreement is not exclusive to either party. Neither party has authority to enter into agreements on behalf of the other. Neither party is authorized to bind the other in any way. Each party shall be solely responsible for its own employees, including the withholding of taxes and payment of any benefits for such employees. |
| 4.5 |
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, or any other claim or controversy between the parties, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Supplementary Procedures for Online Arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties shall mutually choose one arbitrator experienced in database licensing agreements within 30 days of instituting the arbitration; otherwise the AAA shall choose the arbitrator. Any hearings will be held in Philadelphia, Pennsylvania. Any request for emergency or injunctive relief may be submitted under the AAA’s Optional Rules for Emergency Measures of Protection. |
| 4.6 |
If any provision of this Agreement is declared to be invalid or unenforceable, such provision shall be severed from this Agreement, and the other provisions shall remain in full force and effect. |
| 4.7 |
This Agreement is solely between the parties to this Agreement and confers no benefits to any other party other than permitted successors and assigns. This Agreement may not be construed to create any third-party beneficiary rights in any other individual, partnership, corporation, or other entity. |
| 4.8 |
All provisions of this Agreement that provide rights or create responsibilities for the parties after termination of this Agreement shall survive the termination of this Agreement for any reason. Such provisions that survive termination include, without limitation, provisions regarding the restrictions of the License, limitations of liability, choice of law, arbitration, termination, destruction of copies of the Licensed Database, and this provision. |
| 4.9 |
Failure by any party to comply with any material term or condition under this Agreement (“defaulting party”) shall entitle the other party (“non-defaulting party”) to give the defaulting party written notice of such default. If the defaulting party has not cured the default within ten (10) calendar days of its receipt of the notice, the non-defaulting party shall be entitled to terminate this Agreement effective immediately upon sending of a second written notice. The rights under this provision are in addition to all other rights the non-defaulting party may have, and the failure to enforce such rights shall not be deemed to be a waiver of those rights. |
| 4.10 |
Should Subscriber have a right to claim sovereign immunity or otherwise limit FAIMER’s right to bring claims against Subscriber under this Agreement, Subscriber hereby agrees to waive, and does hereby waive, its sovereign immunity or such other limitation to the fullest extent possible under all applicable laws, regulations and treaties. This waiver applies to any and all entities that may claim sovereign immunity or any other restriction on the applicability of law arising out of the Subscriber’s legal status, including without limitation whether Subscriber is a branch, agency or part of a governmental entity in or for any country, a State or Provincial Government, or a Local Government (including without limitation any county, parish, township, borough or city government). |
| 4.11 |
This Agreement is effective when the accompanying annual subscription agreement form is signed by an authorized representative of Subscriber and countersigned by an authorized representative of FAIMER. The Agreement is effective until termination or expiration, either through mutual agreement by the parties, or immediately upon Subscriber’s material breach of this Agreement, or upon written notice by FAIMER. If FAIMER so directs upon expiration or termination of this Agreement, Subscriber shall immediately destroy all copies of the Licensed Database (including copies stored in computer memory), and shall so certify to FAIMER that it has done so in writing. |
| 4.12 |
All notices required or permitted to be given under this Agreement (each, a “Notice”) shall be in writing and shall be given either by personal delivery against a signed receipt, by express delivery using a nationally recognized overnight courier, or by email (with confirmation of receipt). All Notices shall be properly addressed to the parties identified on the annual subscription agreement form. Notice shall be deemed to be effective upon personal delivery or, if sent via overnight delivery, upon receipt thereof; a Notice sent via email is deemed effective on the same day (or if such day is not a Business Day, then on the next succeeding Business Day) if such email is sent before 5:00 p.m. Philadelphia time and on the next day (or if such day is not a Business Day, then on the next succeeding Business Day) if such Notice is sent after 5:00 p.m. Philadelphia time. |
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