WHEREAS, Participant wishes to access certain digital information, including but not limited to visual assets, social media templates, files, and educational material (collectively the “Materials”);
WHEREAS, Company is in the business of receiving donated pharmaceutical products, providing access to such products free of charge for the care of ill individuals in need of such products in accordance with Company’s stated mission, and providing educational services and materials regarding such products, and has the knowledge, experience and expertise to fulfill such business; and
WHEREAS, Participant wants to access the Materials of Company and Company is willing to provide such access;
NOW, THEREFORE in consideration of the mutual promises, covenants and agreements hereinafter set forth, the parties agree as follows:
In consideration of the mutual covenants and agreements set forth in this document and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and subject to the terms and conditions of this Agreement, the parties agree as follows:
1. Term. The term of this Agreement commences upon the Effective Date and expires six (6) months following the conclusion of the last time Participant accesses the Materials (the “Term”).
2. Activities. Participant has requested and Company has agreed to grant the following rights, provide the following services, and/or to engage in the following activities in connection with the Materials:
2.1 Marks. Company and Participant recognize and acknowledge that they have no right, title or interest, and agree that neither will claim any, in or to any trademarks and service marks including logos (collectively the “Marks”) owned by the other party. Company and Participant acknowledge that each party is the exclusive owner of and to all rights, title and interest of their respective Marks. Except as specifically set out in this Agreement, including any exhibits hereto, nothing in this Agreement will grant, suggest, or imply any authority for one party to use the name, trademarks, service marks, or trade names of the other for any purpose whatsoever, absent written consent of the other party. Subject to the terms and conditions of this Agreement, Company and Participant hereby grants to the other for the duration of the Term a non-exclusive, non-transferable, royalty free license to apply the other’s Marks solely as may be provided by such party and solely in connection with and in conformity to this Agreement and any applicable amendment. For clarity, Participant may not sell or otherwise use Company’s marks for any commercial activity without prior written consent from Company.
Use of Marks.
2.1.1 Each party will comply with all standards for usage and design specifications of the other’s Marks issued or to be issued by the other party and furnished to it or updated from time-to-time. Any change, modification or supplementation of the other party’s Marks will be approved in writing by the party owning such Marks, prior to publication.
2.1.2 Neither party may combine the other party’s marks with any other trademarks, trade names, trade symbols or other proprietary marks to create a new, unitary mark without the other party’s prior written consent.
2.1.3 Except as otherwise provided herein, as soon as commercially practicable, upon termination or expiration of this Agreement, each party will cease displaying or using the other party’s marks on any materials and will destroy any materials used in connection with this Agreement which bears the other party’s Marks.
2.2 Online Access. Participant has chosen to engage with Company’s Materials which include Company’s digital assets covering Overdose Prevention, Response Training, and Community Engagement (hereinafter referred to as the “Digital Activity”). The Digital Activity comprises of knowledge, techniques, and use of materials to test for hazardous and unknown chemic elements [i.e. drug testing] and/or how to respond to an overdose and administer potentially life-saving medication. These trainings may require the inherent performance of physical skills that may be arduous and/or hazardous. Those participating in the Digital Activity (each, a “Trainee”) may be exposed to hazards including, but not limited to: injuries, potential contact with allergenic materials, overexertion, overheating, injuries from a lack of fitness or conditioning, equipment failures, and negligence of others.
2.1.1 For Educational and Informational Purposes Only. The information provided in or through the Materials is for educational and informational purposes only.
2.1.1.1 Not Medical Advice. Company is not, nor is Company holding itself out to be a doctor/physician, nurse, physician’s assistant, advanced practice nurse, or any other medical professional (“Medical Provider”), psychiatrist, therapist, counselor, or social worker (“Mental Health Provider”). Company is not providing health care, medical or therapy services, or attempting to diagnose, treat, prevent or cure any physical, mental or emotional issue, disease or condition. The information provided in or through the Materials is not intended to be a substitute for the professional medical advice, diagnosis or treatment provided by a Medical Provider or Mental Health Provider. Participant expressly agrees and acknowledges that Company is not providing medical advice or mental health advice in any way. Always seek the advice of your own Medical Provider and/or Mental Health Provider regarding any questions or concerns you have about your specific health or any medications and before implementing any recommendations or suggestions from the Materials. Do not disregard medical advice or delay seeking medical advice because of information you have read in the Materials. Do not start or stop taking any medications without speaking to a Medical Provider or Mental Health Provider. If you suspect that you have a medical or mental health problem, contact your own Medical Provider or Mental Health Provider promptly. The information contained in the Materials has not been evaluated by the Food and Drug Administration.
2.2.2 Trainee Requirements. Participant will be solely responsible for ensuring that each Trainee’s physical limitations they may possess are addressed before that Trainee begins any training. Participant will endeavor to have each Trainee complete a Liability Waiver for Participant prior to engaging in any training.
2.2.3 Assumption of the Risks. Participant freely assumes and permits the above-mentioned risks in relation to any Company Materials, with knowledge that such risks exist. Participant also assumes any risks that are not expressly listed, but that are part of the Activity. Any harm, injury, or loss that may occur to Participant (or Trainee) or to Participant’s (or Trainee’s) property because of participation in the digital Activity, during any transportation to or from the Digital Activity, as well as performing the methods and techniques of any provided training outside the Digital Activity. Participant also understands that any equipment that is used during the Digital Activity will be at Trainee’s own risk and that any such equipment is provided without any express or implied warranty about its condition, suitability, or merchantability.
2.2.4 Participant Liability Waiver. To the extent allowed by law, Participant hereby releases Company, its employees, volunteers, agents, officers, directors, assigns, partners, and contractors, as well as the providers of any equipment used in the Digital Activity from all liabilities, causes of action, claims and demands that arise in any way from any injury, death, loss or harm that may occur to Participant or to any other person, or to any property, during the Digital Activity or in any way related to the Digital Activity. Participant agrees not to sue or make a claim against the parties mentioned in this section for death, injuries, loss or harm that occur during the Digital Activity, in use of the methods and techniques taught at the Digital Activity, or in any way related to the Digital Activity.
2.2.5 Digital Assets. “Digital Assets” are digital resources that Company possess or uses that assists in achieving its business objectives. The Digital Assets include, but are not limited to, digital information and supporting or operational technology. Company owns the Digital Assets. Company does not transfer any ownership rights in the Digital Assets to Participant or Trainees, despite any statements to the contrary in any outside agreements or conversations related to this Agreement. Company may repatriate any or all Digital Assets at any time during or after this Agreement’s termination or expiry. After repatriation, Participant must ensure that Digital Assets are segregated from non-Company assets at all times.
2.2.6 Use of Digital Assets. Participant may not use the Digital Assets in any way that is related to the buying, selling, or exchange of goods, products, or services for profit, or activities that facilitate these exchanges (“Commercial Activity”). Any use of the Digital Assets, or any other Company Material, for Commercial Activity will be deemed a material breach, and willful misconduct, which will immediately relieve Company of all liabilities and obligations under this Agreement.
2.2.7 Participant Data. Company will not store, copy, disclose or use any of the Participant’s personal or professional online data (“Participant Data”) except as necessary for the performance by the Company of its obligations under this Agreement, or as otherwise expressly authorized by Participant. If at any time Company suspects or has reason to believe that Participant Data has or may become vulnerable, then Company will notify Participant promptly.
2.2.8 Digital Security. Company is authorized to restrict access to Digital Assets to authorized end users whose identity has been verified, and to secure transmission of information over the Internet between such end users and Company, when accessing the Digital Assets. Access to, and use of, Digital Asset may be protected by a digital certificate-based public-key encryption process, requiring Participant to accept the terms of further legally binding [“click-wrap”] agreements.
3. Representations and Warranties.
3.1 Mutual Warranties.
3.1.1 Each party is duly organized, validly existing, and in good standing in the jurisdiction of its organization;
3.1.2 Each party is qualified and licensed to do business and in good standing in every jurisdiction where such qualifications and licensing would be required to perform its obligations under this Agreement;
3.1.3 The execution and performance of this Agreement has been fully authorized by all necessary corporate action of each party;
3.1.4 The execution and performance of this Agreement will not breach or in any other way violate any other agreement, understanding, or duty of either party to another person;
3.1.5 When executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each party, enforceable against each party in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws and equitable principles related to or affecting creditors’ rights generally, or as may be limited by the effect of general principles of equity;
3.1.6 Each party represents and warrants that this Agreement was prepared and negotiated independently, without any exchange of information, discussion or collusion whatsoever between the parties and any other potential or actual suppliers of Organizer; and
3.1.7 Neither party is aware of any fact which would prevent full performance of its obligations under this Agreement as of the Effective date.
3.2 Warranties of Participant.
3.2.1 Participant and its personnel and representatives are and at all times will be in compliance with all applicable state, federal, national and trans-national anti-bribery and anti-corruption laws, rules, and regulations, including but not limited to the US Foreign Corrupt Practices Act (collectively, the “Anti-Bribery Laws”).
3.2.2 Neither Participant nor any of its personnel or representatives has or will, directly or indirectly, offered, paid, promised, or authorized the giving of money or anything of value to any: (A) Government Official; (B) person or entity; or (C) other person or entity while knowing or having reason to believe that some portion or all of the payment or thing of value will be offered, given, or promised, directly or indirectly, to a Government Official or another person or entity (with the exception of lobbying activities complying with all applicable laws); for the purpose of: (1) influencing any act or decision of such Government Official or such person or entity in his or her or its official capacity, including a decision to do or omit to do any act in violation of his or her or its lawful duties or proper performance of functions; or (2) inducing such Government Official or such person or entity to use his or her or its influence or position with any Government Entity or other person or entity to influence any act or decision; in order to obtain or retain business for, direct business to, or secure an improper advantage for Company or Participant.
4. Compliance with Law. Without otherwise limiting the obligations of Participant set forth in this Agreement, Participant will at all times comply with all laws related to Participant’s performance of this Agreement, including with respect to its marketing and promotion activities hereunder. Without limiting the generality of the foregoing, Participant will not act or fail to act or engage in any transaction involving Company, Company’s Intellectual Property Rights, or Product , including by way of marketing, promotion, advertising, the solicitation of the sale, lease, use, or otherwise, that violates any law, including federal, state, and local anticorruption laws, federal, state, and local public procurement laws, the Federal Health Care Program Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), all state anti-kickback statutes, the Federal False Claims Act, 31 U.S.C. § 3729 et seq, and the Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1, et seq., laws related to the storage, sales, distribution and use of Product, and laws related to marketing pharmaceuticals to healthcare professionals.
5. Liability. LIABILITY OF COMPANY TO PARTICIPANT FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE, WILL NOT EXCEED THE RETAIL PURCHASE PRICE OF THE GOODS PROVIDED TO PARTICIPANT WITH RESPECT TO WHICH ANY DAMAGES ARE CLAIMED. COPMANY WILL NOT BE LIABLE TO PARTICIPANT OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES NOR FOR ANY INJURY TO PERSONS OR PROPERTY, UNDER ANY CLAIM OR THEORY OF RECOVERY, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR IF THE PARTY OR MEMBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Indemnification.
6.1 Subject to the limitations set forth in this Agreement, Company agrees to indemnify Participant and its respective officers, directors, employees, agents, successors and assigns against, and agrees to hold them harmless from, any loss due to a claim, action or suit brought or instituted by a non-affiliated third party (a “Claim”) arising from or relating to the gross negligence or willful conduct of Company or any breach by Company of this Agreement.
6.2 Participant agrees to indemnify Company and their respective officers, directors, employees, agents, successors and assigns against, and agrees to hold them harmless from, any loss due to a Claim (including claims relating to “class of trade” pricing) arising from or relating to the negligence or misconduct of Participant or any breach by Participant of this Agreement.
6.3 Upon the assertion of any Claim or the filing of any lawsuit or other legal action against a party to this Agreement that may give rise to a right of indemnification under this Agreement, the indemnified party will give prompt notice to the indemnifying party of the existence of the Claim (providing reasonable details of the nature and basis of such Claim), and give the indemnifying party reasonable opportunity to defend, settle or satisfy or otherwise dispose of such Claim at its expense and with counsel selected by it and reasonably acceptable to the indemnified party, except that the indemnified party may participate in such defense with counsel selected by it at its own expense. A delay in so notifying the indemnifying party will not relieve the indemnifying party from any obligation under this Agreement unless and solely to the extent that the indemnifying party is prejudiced by the delay. If the indemnifying party elects to defend the Claim, (a) the indemnifying party will keep the indemnified party regularly and promptly informed of the status of the Claim and its defense; (b) the indemnified party will cooperate to the extent reasonably necessary to assist the indemnifying party in defending, contesting or otherwise protecting against any such Claim provided that the cost in doing so will be paid by the indemnifying party; and (c) the indemnifying party will not enter into any settlement or consent to the entry of any judgment with respect to the Claim without the prior written consent of the indemnified party, which will not be unreasonably withheld, except that the indemnifying party may enter into a settlement or consent to the entry of a judgment with respect to the Claim without the consent of the indemnified party if the settlement or judgment only provides for a monetary payment or award that is, in fact, paid by the indemnifying party. If, within a reasonable period of time after such notice is given by the indemnified party, the indemnifying party fails or refuses to defend the Claim or after undertaking the defense, does not continue to diligently conduct the defense, then (i) the indemnified party may undertake and thereafter pursue its own defense of the Claim; (ii) all decisions concerning that defense will be at the sole discretion of the indemnified party; (iii) all reasonable costs, legal fees, disbursements and out-of-pocket expenses incurred by the indemnified party will be reimbursed by the indemnifying party within thirty (30) days after the indemnified party informs the indemnifying party in writing of the incurrence or payment of such amounts; (iv) the indemnifying party will be liable for and will promptly pay when due any judgment or damages levied against or amounts paid in settlement of such Claim by the indemnified party or any of its customers; and (v) the indemnifying party will provide all reasonable assistance requested by the indemnified party for the defense of any such Claim.
7. Force Majeure. Neither party will be responsible for any failure to perform or delay in performing if such failure or delay is due to any strike, riot, civil commotion, sabotage, embargo, government act or order, pandemic, epidemic (or reasonable measures affirmatively taken by a party, its employees, volunteers, agents, officers, directors, assigns, partners, contractors, or suppliers to respond to any pandemic, epidemic, or spread of infectious disease, such as requiring employees to stay home or closure of facilities), action by a legal or regulatory body, war or act of God or other cause beyond its reasonable control. In addition, Company will not be responsible for any failure to perform or delay in performing due to inability to obtain deliveries of necessary raw materials or packaging components where such inability is caused by a supplier to Company.
8. Confidential Information. The term “Confidential Information” means any and all materials, data and other information of every kind, character and nature, disclosed after the Effective Date, including, but not limited to, all business, financial and technical information, passwords and access codes, contacts, samples, data, compilations, product specifications, strategies, projections, processes, embodiments thereof of any kind whatsoever including, where appropriate and without limitation, all composition of or samples of products, product plans and designs, product development clinical and pre-clinical information, marketing information or plans or manufacturing processes, machinery, apparatus, records, reports, drawings, patent and trade secret applications and documents, and/or written or verbal descriptions, documents or information gathered or disclosed by the parties during the term of this Agreement which in any way relates to all or part of the business of either party, including, but not limited to, its operations, technology, affairs, activities, assets, processes, finances or business. The party receiving the Confidential Information will be the “Receiving Party” and the party disclosing the Confidential Information will be the “Disclosing Party”.
8.1 Use of Confidential Information.
8.1.1 The Receiving Party will use Confidential Information only for the purpose of fulfilling its obligations under this Agreement. The Receiving Party must take such measures with respect to prevent the unauthorized use, disclosure or duplication of the Confidential Information as the Receiving Party would use to protect its own confidential information, and in no event may such measures be less than a reasonable degree of care.
8.1.2 All Confidential Information disclosed by one party to the other party will remain the property of the Disclosing Party. Any Confidential Information or data acquired by a Receiving Party will be deemed a valuable, special and unique asset of the Disclosing Paty received by the Receiving Party in confidence and as a fiduciary, and the Receiving Paty will remain a fiduciary to the Disclosing Party with respect to all such information. Confidential Information must not be disclosed, divulged, communicated, used to the detriment of the Disclosing Party or for the benefit of any other person or entity, or misused in any way without prior written consent of the Disclosing Party, except (A) in the case of Service Provider to others who must be involved in the Services and who have agreed in writing to observe the confidentiality and non-use obligations with respect to the Confidential Information in the same manner and to the same extent as provided in this Agreement and by law to maintain this information in confidence, and (B) in the case of Company, to its and its affiliates’ respective officers, directors, employees, lenders, financing sources, insures, collaboration partners, service providers, agents and professional advisors (collectively, “Representatives”), who have a need to know the Confidential Information in furtherance of the purposes hereof and who are bound by obligations of confidentiality and non-use no less stringent than those set forth herein. Each party agrees to be responsible for any breaches hereof by its Representatives.
8.2 Confidentiality Term. The parties’ obligations with regard to Confidential Information will survive the expiration or termination of this Agreement and will continue in full force and effect for a period of one (1) year from the later of the conclusion of the Event, or expiration or termination of this Agreement. The obligations of the parties regarding the confidentiality and nondisclosure of Confidential Information will extend to and be binding upon all employees or agents and Representatives of the parties who have access to Confidential Information pursuant to this Agreement. The Receiving Party must obtain the agreement of those employees and agents and Representatives who are granted access to Confidential Information to comply with the terms thereof. The Receiving Party will be responsible for any unauthorized disclosure or use of Confidential Information by it, its employees, officers and agents and Representatives not authorized under this Agreement.
8.3 Exclusions. The obligations of the Receiving Party regarding the confidentiality and nondisclosure of Confidential Information will not apply to information which:
8.3.1 At the time of disclosure was in the public domain;
8.3.2 After disclosure becomes part of the public domain, except through breach of this Agreement by the Receiving Party;
8.3.3 The Receiving Party can demonstrate by its written records was in the Receiving Party’s possession prior to the time of disclosure by or on behalf of the Disclosing Party hereunder, and was not acquired directly or indirectly from the Disclosing Party.
8.3.4 Becomes available to the Receiving Party from a third party which, to the knowledge of the Receiving Party, is not legally prohibited from disclosing such Confidential Information; or
8.3.5 The Receiving Party can demonstrate by its written records was developed by or for the Receiving Party independently of the disclosure of Confidential Information by the Disclosing Party.
8.4 Obligation to Disclose. Notwithstanding the foregoing, in the event the Receiving Party becomes obligated by applicable law, regulatory rule, or judicial or administrative order to disclose Confidential Information, the Receiving Party must immediately notify the Disclosing Party, identify the Confidential Information to be disclosed and, if requested by the Disclosing Party, the Receiving Party will cooperate with efforts of the Disclosing Party to prevent the disclosure of the Confidential Information. If the Confidential Information is to be disclosed, the Receiving Party must only disclose the part or portion of the Confidential Information necessary to satisfy its obligation to disclose. If, in the absence of a waiver or protective order, Receiving Party is nonetheless, in the opinion of its counsel, required to disclose Confidential Information, disclosure may be made only as to that portion of the Confidential Information that counsel advises that the Receiving Party is required to be disclosed, and the Receiving Party will exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to the disclosed Confidential Information.
8.5 Protection of Personal Information. Performance under this Agreement will not involve the exchange of any information about individual persons “Personal Information”. The parties will not transmit, handle, store, maintain, use or destroy Personal Information for the purpose of this Agreement. The obligations and restrictions set forth in this Section will survive the termination or expiration of this Agreement. Participant will give authorization to the Company to keep the Participant’s employees contact information in its records, including restrictively their full name and their e-mail address, title, fax, and phone number which are ordinarily used in the normal course of their job.
9. Termination and Survival. Either party may terminate this Agreement for any reason and without cause upon ten (10) day’s notice. A non-breaching party may terminate this Agreement if it provides notice of a breach to the other party (breaching party) and such breach is not cured within three (3) days of such notice. The parties' rights and obligations under Section 9 will survive the termination of this Agreement.
10. Assignment. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party.
11. Waiver. Any waiver by either party of a breach hereunder will not operate as a waiver of any future breach nor as a continuing waiver.
12. Severability. In the event that any of the terms of this Agreement are or become illegal or unenforceable, such terms will be null and void and will be deemed deleted from this Agreement, and all the remaining terms of this Agreement will remain in full force and effect.
13. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the state of California without regard to any conflict of law or choice of law rules or provision. The parties consent and submit to jurisdiction and venue in Los Angeles, California regarding all actions or proceedings arising out of or related to this Agreement. Each party accepts for itself and in connection with its properties, generally and unconditionally, the exclusive jurisdiction of such court and waives any defense of forum non conveniens, and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement.
14. Headings. The descriptive headings of the sections of this Agreement are inserted for convenience only and will not control or affect the meaning or construction of any provision.
15. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior contracts, agreements and understandings (whether oral or in writing) between the parties as to the subject matter hereof. This Agreement may not be amended except in writing (email sufficing) agreed to by authorized representatives of the parties hereto.
16. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. Electronic signatures will be deemed and binding as an original.