License Agreement & Terms of Service

 

SAAS SERVICES AND SUPPORT

1. Company will provide to Customer subscriber access to the Company’s data extraction and visualization software platform for clinical outcome data in medical research (the “Services”) for the period from when the Customer creates an account and the Termination of this Agreement (the “Subscription Period”).
2. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services.  As part of the registration process, Customer will register for an account as provided in the Policy (as defined below). Customer acknowledges and agrees that no person other than Customer may use the Services or otherwise access the Customer’s account. Company reserves the right to refuse registration of, or cancel passwords, of Customer it deems inappropriate in its sole discretion.
3. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the Company’s standard practice.

 

RESTRICTIONS AND RESPONSIBILITIES

1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.  
2. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.  
3. Customer represents, covenants, and warrants that Customer will (i) not permit access to or use of the Services by any person other than Customer, (ii) use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.  Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

 

CONFIDENTIALITY; PROPRIETARY RIGHTS

1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services.  Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.  
2. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.  Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with support, and (c) all intellectual property rights related to any of the foregoing.     
3. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and  Company will be free (during and after the Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.   
4. Company may incorporate Customer’s trademarks, service marks, names and/or logos (collectively, the “Customer Marks”) in Company’s marketing, advertising, and promotional materials. Customer hereby grants Company a limited, non-exclusive, non-transferable, royalty-free license during the Term to use the Customer Marks solely for the purposes described in this section.

 

PAYMENT OF FEES

1. Customer agrees to pay Company the applicable monthly per-user fee that Customer selected from the Pricing page (the “Fees”) in advance of and in order to gain access to the applicable Software and/or Services.
2. For the duration of the Subscription Period, Customer agrees to pay the Fees in advance of the first day of the monthly billing cycle (the “Monthly Billing Period”). In order to prevent immediate Termination of the Agreement, the Customer must pay at least 50% of the Fees for the applicable Monthly Billing Period (the “Monthly Minimum Amount”) and have no outstanding late payments.
3. If the Customer pays a greater amount than the Fees applicable to a given Monthly Billing Period, the Fees associated with the subsequent Monthly Billing Period will be reduced by the amount overpaid. If the Customer pays a lesser amount than the fees, but more than Monthly Minimum Amount, the underpayment will be added to the amount owed in the following month.
4. If the Customer fails to pay the Monthly Minimum Amount, or has outstanding late payments that are not resolved within 30 days (either, a “Payment Failure”), Company will deactivate the Customer’s account and Terminate the Services. 
5. Company reserves the right to change the Fees or applicable charges in advance of any Monthly Billing Period.
6. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to the Company contact as designated in the Policy.
7. Customer agrees to share payment information with the Third Party Payment Platform of Company’s choice.
8. Customer hereby authorizes the Company to automatically charge Customer’s designated payment method(s) as provided in this Agreement. Customer may from time to time update its payment methods through Customer’s account.
9. Company may choose to bill Customer for any Fees through an invoice, in which case, full payment must be received by Company thirty (30) days after the mailing date of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

 

TERM AND TERMINATION

1. Subject to earlier termination as provided below, this Agreement is for the first Monthly Billing Period, and shall be automatically renewed for additional periods so long as a Payment Failure does not occur (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
2. Should the Customer desire to reactivate the Services and the account, the Customer must make any required updates to payment methods and pay all outstanding amounts, as well as the payment for the next Monthly Billing Period.
3. If the Customer voluntarily terminates this Agreement, the account and Services will be deactivated immediately and no refund will be given for any outstanding positive amount.
4. In addition to any other remedies it may have, (i) Company may suspend access to the Services and (ii) either party may terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), in each case, if the other party materially breaches any of the terms or conditions of this Agreement.  Customer will be responsible for payment in full for the Services during the Term. 
5. Upon any termination, Company will make all exportable Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 

 

DISCLAIMER OF WARRANTY

THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND THE SOFTWARE.

 

INDEMNITY 

Customer agrees to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) use of the Services by Customer, (b) any violation of this Agreement or the Policy by Customer, (c) any violation of applicable laws or regulations by Customer or (d) any Customer Data. Company reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify the Company, and Customer agrees to cooperate with the Company’s defense of these claims. Customer agrees not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify Customer of any such claim, action or proceeding upon becoming aware of it.

 

LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR CUSTOMER’S USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY DEVICE, COMPUTER SYSTEM OR ANY OTHER EQUIPMENT OF CUSTOMER, OR LOSS OF DATA RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. 

 

ARBITRATION

Any dispute, controversy or claim between the parties arising out of or relating to this Agreement or the breach, termination or validity hereof shall be referred to and finally resolved by binding arbitration in Minneapolis, Minnesota, to the exclusion of all other procedures, in accordance with the rules then in force of the American Arbitration Association, which are deemed to be incorporated by reference into this Section 9.  In any such arbitration, one arbitrator shall be appointed in accordance with such rules.  Where the rules of the American Arbitration Association do not provide for a particular situation, the arbitrator shall determine the course of action to be followed.  To the maximum extent permitted by applicable law, the parties agree not to assert any rights to have any court rule on a question of law affecting the arbitration or to hear any appeal from or entertain any judicial review of the arbitral award. 

 

MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent.  Company may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of the State of [Minnesota] without regard to its conflict of laws provisions; provided that, nothing in this Section shall permit any party to bring any action, claim, demand, litigation or other legal proceeding arising out of or relating to this Agreement in any tribunal other than as set forth in Section 9, except to enforce an award issued by the arbitrator in accordance with Section 9. In the event a conflict arises in the application or interpretation of any provision of this Agreement and the Policy, this Agreement will control.