LACHMAN CONSULTANTS ONCALL TELECONSULTING SERVICES
TERMS OF SERVICE AGREEMENT
THIS TERMS OF SERVICE AGREEMENT (“Agreement”) is made between Lachman Consultant Services, Inc. (“Lachman Consultants”) and any person or entity (“User”) who completes the registration process to open and maintain an account with the Lachman Consultants’ interactive oncall consulting service (“Service”). Lachman Consultants and User are collectively referred to as the “parties.”
- Service Terms and Limitations
a. Description. This Service is proprietary to Lachman Consultants and is protected by intellectual property laws and international intellectual property treaties. User’s access to the Service is licensed and not sold. Subject to the timely payment of all Fees and the terms and limitations set forth in this Agreement, Lachman Consultants agrees to provide User with a personal, non-transferable, and non-exclusive account enabling User to access and use the Service.
b. Accessibility. A response should be received by a User during normal business hours of 9:00am to 5:00pm (Eastern Time) Monday to Friday (“normal business hours”) within two (2) hours of an initial request through the Service, and within twenty-four (24) hours of requests made outside normal business hours, including weekends and holidays, however, response times may vary depending upon the volume of requests. In addition, User agrees that from time to time the Service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunction; (ii) periodic maintenance procedures or repairs which Lachman Consultants may undertake from time to time; or (iii) causes beyond the control of Lachman Consultants or which are not reasonably foreseeable by Lachman Consultants.
c. Confidentiality. Each party agrees to use commercially reasonable efforts to maintain the confidentiality of any confidential information of the other party that it obtains pursuant to this Agreement consistent with the efforts such party uses to protect its own confidential and trade secret information of like importance, and shall take reasonable steps to ensure that such confidential information is not disclosed or distributed by its employees, consultants, or agents to third parties not subject in writing to an agreement to protect such confidential information. Each party agrees that the Service and the Fees shall be deemed confidential information of Lachman Consultants.
d. Privacy. Lachman Consultants may collect certain information in aggregate form from and relating to users of the Service generally, including User, as part of the gathering of information for use and publication regarding matters of importance to the pharmaceutical and related allied health industries. When reasonably practicable, Lachman Consultants will make every effort to respect User’s privacy. Lachman Consultants will not disclose any personal information about User or User’s account, including its contents or User’s use of the Service, without User’s prior consent unless such action is necessary to: (i) comply with legal process or other legal requirements of any governmental authority; (ii) protect and defend the rights or property of Lachman Consultants; (iii) enforce this Agreement; or (iv) operate or conduct maintenance and repair of Lachman Consultants’ services or equipment, including the Service as authorized by law.
a. Payment. User shall pay Lachman Consultants for the Service at a rate of Two Hundred Dollars ($200) per hour for any consultation provided through the Service, which will be billed in one-quarter (1/4) hour increments (“Fees”). User’s use of the Service is capped at a maximum of four (4) hours of consultation time per session, as well as an annual limit of consultation time through the Service of twelve (12) hours per year, measured from the date the Service is first used by User. Any consultations that require more than four (4) hours per session or that may require more than twelve (12) hours in the applicable year will require the User to be engaged under Lachman Consultants’ standard consulting agreement, not through the Service. Upon acceptance of the terms and conditions set forth herein, and prior to the commencement of the Service, an authorization hold will be placed on User’s credit card or other acceptable method of payment for Fees for four (4) hours of consultation time, however, the final charges will be based on the actual consultation time for the Service in one-quarter (1/4) hour increments in accordance with this Section 2. Lachman Consultants expressly reserves the right to change the Fees at any time, upon notice to User.
b. Collection and Taxes. User shall be responsible for and shall pay Lachman Consultants all applicable currency conversion charges, sales, use, value-added, or other tax, duty, or levy of any kind, including interest and penalties thereon (“Taxes”), whether imposed now or hereinafter by any governmental entity. All Fees, Taxes, and other applicable charges shall be billed to User’s credit card or other designated method of payment. User shall promptly pay Lachman Consultants in the event of any refusal of User’s credit card issuer or other payment service to pay any amount to Lachman Consultants for any reason. User agrees to pay interest at the rate of 1.0% per month on any outstanding balance, together with costs of collection, including attorneys’ fees and costs. In the event User fails to pay any amount when due, Lachman Consultants may immediately suspend or terminate this Agreement and User’s access to the Service.
- User Representations
User represents and warrants to Lachman Consultants that: (a) User has the power and authority to enter into and perform User’s obligations under this Agreement; (b) all information provided by User to Lachman Consultants is truthful, accurate, and complete; (c) User is the authorized signatory of the credit or charge card or account provided to Lachman Consultants to pay the Fees; (d) User shall comply with all terms and conditions of this Agreement, including, without limitation, the provisions set forth in Section 4; and (e) User has provided and will provide accurate and complete registration information, including, without limitation, User’s legal name, address, and telephone number.
- Prohibited Uses
User is solely responsible for any and all acts and omissions that occur under User’s account or password, and User agrees not to engage in unacceptable use of the Service, which includes, without limitation, use of the Service to: (a) disseminate, store, or transmit unsolicited messages, chain letters, or unsolicited commercial email; (b) disseminate or transmit material that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, or malicious; (c) disseminate, store, or transmit files, graphics, software, or other material that actually or potentially infringes the copyright, trademark, patent, trade secret, or other intellectual property right of any person; (d) create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication; (e) export, re-export, or permit downloading of any message or content in violation of any export or import law, regulation, or restriction of the United States and its agencies or authorities or any other applicable jurisdiction, or without all required approvals, licenses, or exemptions; (f) interfere, disrupt, or attempt to gain unauthorized access to other accounts on the Service or any other computer network; (g) disseminate, store, or transmit viruses, trojan horses, or any other malicious code or program; or (h) engage in any other activity deemed by Lachman Consultants to be in conflict with the spirit or intent of this Agreement.
This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated. User may terminate this Agreement for any reason upon thirty (30) days prior notice to Lachman Consultants. Lachman Consultants reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Service; (b) suspend User’s access to or use of all or any portion of the Service; and (c) terminate this Agreement.
- Disclaimer of Warranties
THE SERVICE IS PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE IS AT USER’S SOLE RISK. LACHMAN CONSULTANTS DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES LACHMAN CONSULTANTS MAKE ANY REPRESENTATION OR WARRANTY AS TO ANY RESULTS, RECOMMENDATIONS, OR ADVICE THAT MAY BE OBTAINED BY USE OF THE SERVICE. LACHMAN CONSULTANTS EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND any warranties arising from course of performance, course of dealing and usage of trade, IN RELATION TO THE SERVICE AND ANY RESULTS, RECOMMENDATIONS, OR ADVICE IN CONNECTION THEREWITH.
- Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL LACHMAN CONSULTANTS BE LIABLE TO USER OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (including, but not limited to, loss of profits or loss of use damages OR LOSS OR CORRUPTION OF DATA), whether based on contract, tort, or otherwise FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE, OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, ANY RESULTS, RECOMMENDATIONS, OR ADVICE IN CONNECTION WITH THE SERVICE, USER’S USE OR INABILITY TO USE THE SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR NOT RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE, even if Lachman Consultants has been advised of the possibility of such damages or losses. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL LACHMAN CONSULTANTS’ TOTAL AGGREGATE LIABILITY FOR DAMAGES EXCEED THE TOTAL FEES PAID BY USER TO LACHMAN CONSULTANTS HEREUNDER. IF USER IS DISSATISFIED WITH THE SERVICE OR ANY RESULTS, RECOMMENDATIONS, OR ADVICE IN CONNECTION WITH THE SERVICE, USER’S SOLE EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE SERVICE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 5.
User agrees to indemnify, hold harmless, and defend Lachman Consultants, its shareholders, directors, officers, employees, consultants and agents from and against any action, cause, claim, damage, debt, demand, or liability, including reasonable costs and attorneys’ fees, asserted by any person, arising out of or relating to: (a) this Agreement; (b) User’s use of the Service and any results, recommendations or advice in connection with the Service, including any data or work transmitted or received by User; and (c) any unacceptable use of the Service, including, without limitation, any statement, data, or content made, transmitted, or republished by User which is prohibited as unacceptable pursuant to Section 4.
a. Governing Law and Jurisdiction. This Agreement and User’s access and use of the Service shall be governed by and construed in accordance with the laws of the United States of America and the State of New York, without regard to any conflicts of laws principles. The exclusive venue for any action arising out of or related to this Agreement or the Service shall be the federal and/or New York state courts located in the County of New York, State of New York.
b. Notices. All communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses as may be designated by a party from time to time.
c. Entire Agreement. This Agreement constitutes the sole and entire agreement between Lachman Consultants and User with respect to the Service. Notwithstanding the foregoing, this Agreement shall not alter or affect any other agreement between Lachman Consultants and User not related to the Service, and shall not apply to any other services provided by Lachman Consultants outside of the Service.
d. Amendment. Lachman Consultants shall have the right, at any time and without notice, to add to or modify the terms of this Agreement, simply by delivering such amended terms to User by email at the address provided to Lachman Consultants by User. User’s access to or use of the Service after the date such amended terms are delivered to User shall be deemed to constitute acceptance of such amended terms.
e. Assignment. User shall not assign or otherwise transfer any of its rights, or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Lachman Consultants’ prior written consent, which consent Lachman Consultants may give or withhold in its sole discretion. Any purported assignment or transfer in violation of this Section is void. Lachman Consultants may freely assign or otherwise transfer all or any of its rights, or otherwise transfer all or any of its obligations or performance, under this Agreement without User’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
f. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.