END USER AGREEMENT
This Agreement dated as of the 23 day of March, 2017 (the “Effective Date”), is entered into by and between Study Scavenger LLC (“SS”) and ______________ (“End-User”) for the licensing of certain software. SS grants the software license to the End-User, subject to (a) End-User agreeing in writing to, and complying with, the terms and conditions described below and delivering such written agreement to SS, and (2) End-User’s performance of its obligations hereunder.
- “Clinical Trial” shall mean a research study with a unique protocol number or code conducted under a single protocol.
- “Documentation” means any user manuals, product descriptions or other written materials relating to the Software.
- “Intellectual Property” means any intellectual property or proprietary rights, including, but not limited to, copy-rights, trademarks, patents, and trade secrets.
- “Proprietary Technology” means SS’s proprietary application (app) computer programs and software, and all data, information, and tables created by SS, and all fixes, releases and updates related thereto and derivations thereof, which search, retrieve, organizes and present data from disparate sources.
- “Software” means the software, services and a research study database provided by SS.
Grant of License and Use
- By SS. The license hereby granted by SS to End-User is a personal, nonexclusive, nontransferable and non-assignable license (“License”) to use the Software in the United States solely in connection with search for a clinical trial. All Proprietary Technology, and all copies thereof, including translations, compilations, derivative works, and partial copies, are and shall at all times remain the property of SS. End-User is approved to use the software only through the SS app Site. No title or other ownership rights in Intellectual Property, Proprietary Technology, or otherwise in the Software shall pass to End-User under this License.
- Term. The term of the License hereby granted shall continue until such time as the search is completed and/or End-User’s study search is completed or upon such earlier termination in accordance with Paragraph 2.k. herein.
- Restrictions on Use. End-User will not use the Software for any purposes other than the designated uses specified in herein. End-User will not install the Software on any equipment and will only use the Software through the SS Site. Under no circumstances will End-User download the Software from the SS Site.
- Passwords and Security. End-User will be responsible for maintaining the confidentiality of End-User’s user name and password, and End-User shall be responsible for any liabilities or damages arising in connection with the use or misuse of End-User’s user name and password. End-User shall not transfer or share End-User’s user name or password or access to or use of the SS app Site to any third party without SS’s prior written permission. Further, End-User agrees to immediately notify SS if End-User becomes aware of any loss, theft or unauthorized use of End-User’s user name and/or password.
- All Rights Reserved. Except for the limited license granted herein, SS reserves all rights in the Software and Proprietary Technology, including title, ownership rights, and intellectual property rights. End-User acknowledges that the Software and the Software’s code sequence, structure, organization, source code, executable code, Documentation and any modifications thereto; constitute the valuable intellectual property rights of SS in which End-User has no interest.
- License Exclusions. To the extent permissible under applicable law, the license granted under this Section 1 shall not grant any rights to the End-User (and will not permit any third party to):
- modify, adapt, alter, or translate the Software;
- sell, distribute, transfer sublicense, lease, rent, or loan the Software to any third party;
- reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code;
- use the Software in connection with the operations of business, in a time-sharing environment, or for the benefit of any third party;
- remove, erase or hide from view any copyright, trademark, confidentiality notice, mark or legend appearing on any of the Software, the Documentation, or any form of output produced by the Software;
- create derivative works from the Software;
- make the Software available for download over a public network, including but not limited to the Internet and/or peer-to-peer networks;
- export the Software outside the United States;
- and/or attempt any of the foregoing or aid, abet or permit others to do so.
- Software Identification. End-User will not remove any product identification, trademark, copyright or other proprietary rights notices from the Software or Documentation. End-User will not make, have made or permit its employees or third parties to make any copies of the Software or Documentation for any purposes or for any reason without written permission from SS.
- Management Tools. End-User acknowledges and agrees that the Software furnished by SS is an information management tool only and that use of such Software contemplates and requires the involvement of End-User’s learned intermediaries. End-User acknowledges that SS:
- has no control of or responsibility for the End-User’s use of the Software,
- has no knowledge of the specific or unique circumstances under which the Software provided may be used by the End-User, and
- has no liability to any person or institution for any change made to or data or information added to the Software by the End-User or any party other than SS.
- Audit and Remote Access. At SS’s request and upon reasonable notice, SS will have the right to inspect and audit End-User’s compliance with these License terms during normal business hours. End-User will cooperate with the audit and will grant assistance and access to applicable records, materials, equipment, and personnel. In addition, End-User will provide remote access to its systems to SS to enable SS to electronically audit End-User’s compliance with the License terms. If an audit reveals any unlicensed copies of the Software or any use of the Software in violation of these license terms, End-User will immediately cease using the Software and SS shall be entitled to injunctive relief.
- User Conduct. When using this application, End-User agrees not to: (A) impersonate any person or entity or otherwise misrepresent End-User’s affiliation with a person or entity; (B) violate any applicable federal, state or local laws, rules or regulations; (C) upload or otherwise transmit any material that contains software viruses or any other computer code or programs designed to interrupt, destroy or limit the functionality of any software, hardware or telecommunications equipment; or (D) upload or otherwise transmit any content or domain name that is unlawful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable.
- Termination of License. SS may terminate the license granted under this Section 1 if, within five (5) business days of End-User’s receipt of a reasonably detailed written request to cure, End-User has not cured all breaches of license limitations or restrictions. Upon such termination: the License granted pursuant to Section 1 will terminate and End-User will immediately cease using the Software; within ten (10) days of the effective date of the termination of this License, End-User will erase all copies of the Software from End-User’s smart phone and return to SS all copies of the Software, all Documentation, and any other property (including Proprietary Technology) belonging to SS in End-User’s possession or control; and upon the request of SS, End-User must certify in writing to SS that End-User has fully complied with the foregoing requirements. Termination of the License will be in addition to and not a waiver of, any remedy at law or in equity available to SS arising from End-User’s breach of this License.
Ownership and Transfer Title.
- Title, interest and all rights to the Software remains with SS.
- Sole Property. End-User acknowledges that all copies, whether partial or complete, of the Software, as well as all Proprietary Technology, are and will remain the sole property of SS. End-User will have only the limited use rights specifically granted by this Agreement.
- Trademark Restrictions. End-User will have no right to use, advertise, reproduce or distribute any name, trademark or trade name, whether or not registered, associated with or used in conjunction with the Software without the prior written permission of SS.
Acceptance of Software
The Software will be deemed to be accepted by End-User on the first date that the Software is available for use to End-User on the SS application. SS will not be responsible for entry or loading of End-User data into the Software. End-User acknowledges and understands that SS shall not provide any Software support services hereunder.
End-User understands and agrees that SS is the exclusive owner of, and holds all rights and title to, the Proprietary Technology, including without limitation all Intellectual Property therein. Both parties agree that SS shall own all right, title and interest in and to any and all information, data, and compilations received by SS pursuant to End-User’s use of the Software, as well as all data resulting from, or related to, the use of the Proprietary Technology (the “SS Data”). Without limiting the foregoing, SS shall be entitled to retain, maintain, store, use and/or disclose the SS Data as permitted by the Clinical Trial and applicable law, even if this Agreement is terminated or End-User otherwise requests SS to return or destroy such SS Data. End-User understands and agrees that the content, maintenance and operation of the SS application and the Proprietary Technology related thereto will be exclusively controlled and owned by SS, and will be hosted on SS’s computer equipment.
Disclaimer of Warranty
- End-User expressly acknowledges and agrees that use of the Software, Documentation and Proprietary Technology is at End-User’s sole risk. SS assumes no liability for the Software, the Documentation and the Proprietary Technology. THE SOFTWARE, PROPRIETARY TECHNOLOGY AND DOCUMENTATION ARE PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. SS does not warrant that the Software, Documentation and Proprietary Technology will meet User’s requirements, or that the operation of the Software or Proprietary Technology will be uninterrupted or error-free, or that defects in the Software or Proprietary Technology will be corrected. Furthermore, SS does not warrant or make any representation regarding the use or the results of the use of the Software (including the related Documentation), or the Proprietary Technology in terms of their correctness, accuracy, reliability, or otherwise. Should the Software or the Proprietary Technology prove defective, End-User (and not SS) assume the entire cost of all necessary servicing, repair, or correction. **SS EXPRESSLY DISCLAIMS ANY WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE, THE DOCUMENTATION, OR THE PROPRIETARY TECHNOLOGY.**
- The Software may be provided with third party plug-ins or other third party software, or this Software may be provided as a plug-in for, or otherwise in association with, third party software.
Limitation of Liability
- Limitation on Damages. IN NO EVENT WILL SS BE LIABLE FOR ANY LOSS OF OR DAMAGE TO DATA, REVENUES, PROFITS OR GOODWILL OR OTHER SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM ITS PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THE TERMS OF THIS AGREEMENT OR ANY ATTACHMENTS HERETO, OR RESULTING FROM THE FURNISHING, PERFORMANCE, OR LOSS OF USE OF ANY SOFTWARE OR OTHER MATERIALS DELIVERED TO END-USER INCLUDING ANY INTERRUPTION OF BUSINESS, WHETHER RESULTING FROM BREACH OF CONTRACT OR BREACH OF WARRANTY, EVEN IF SS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Maximum Liability. SS’s maximum liability for damages arising out of or in any way connected to this Agreement will be, in the aggregate, limited to Ten Dollars ($10). IN NO EVENT WILL SS, ANY PARENT, SUBSIDIARY, OR AFFILIATE, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR COSTS (INCLUDING ATTORNEY’S FEES) REGARDING THIS LICENSE OR RESULTING FROM OR IN CONNECTION WITH THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, SUPPORT, OR OTHER PRODUCTS OF SERVICES, EVEN IF SS HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
- Effect of Limitation. The parties acknowledge that the limitations set forth in this Section 6 are integral to the License of the Software, and recognize that were SS to assume any further liability beyond that set forth in this Section 6, such License would not be provided.
- End-User’s Liability for Infringement. THERE SHALL NOT BE ANY LIMITATION ON END-USER’S LIABILITY FOR A VIOLATION OF SS’S INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY TECHNOLOGY, INCLUDING THROUGH A BREACH OF THE LICENSE OR REVERSE ENGINEERING or otherwise with respect to any infringement claim based upon, but not limited to:
any use of the Software not in accordance with this Agreement or for purposes not intended by SS;
any use of the Software in combination with other products, equipment, software, or data which End-User is not authorized to use in conjunction with the Software;
any use of any release of the Software other than the most current release made available to End-User;
any modification of the Software by any person other than SS;
End-User’s continued alleged infringing activity after being informed of modifications that would have avoided the alleged infringement;
or any combination of the End-User’s use of the Software with any other activities of the End-User or others.
- Injunctive Relief. Since unauthorized use, copying or other transfer of the Software or any proprietary information will diminish substantially that value of SS of the trade secrets and Proprietary Technology that are the subject of this Agreement, if End-User breaches any of its obligations with respect to limited use, transferability or confidentiality of the Software, SS will be entitled to obtain equitable relief, without bond, to protect its interests, including injunctive relief, as well as money damages. End-User hereby acknowledges that remedies other than equitable relief are inadequate to protect fully SS’s rights. The rights and remedies set forth in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law.
- Use of this License shall be deemed to have occurred in the State of New York. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of New York, exclusive of conflict of law rules. All disputes, controversies, or claims hereunder shall be resolved by final and binding arbitration by a single arbitrator selected in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). All arbitration proceedings shall take place in New York County, NY. The arbitrator must be an individual with experience in information systems similar to the system and services provided by SS hereunder. The arbitrator shall have the power to grant all legal and equitable remedies and award compensatory damages, but not punitive damages, as provided for by New York law; subject to the limitations of liability in Section 6 hereof. The award rendered by the arbitrator (the “Award”) shall be in writing and be provided to the parties and must include written factual findings and the legal conclusions upon which the Award is based. The arbitrator shall not have the power to make an Award that is inconsistent with the provisions of this Agreement or New York substantive law. Judgment on an arbitral award may be entered by any court of competent jurisdiction, or application may be made to such a court for judicial acceptance of the award and an appropriate order including enforcement. If any party should bring an action to resolve any claim related to this Agreement, the prevailing party in such action (as determined by the arbitrator) shall be entitled to receive from the non-prevailing party all of its costs and expenses incurred in such action (including, without limitation, reasonable attorneys’ fees). The arbitration proceedings contemplated by this Section shall be as confidential and private as permitted by law. To that end, the parties shall not disclose the existence, content or results of any arbitration proceedings conducted in accordance with this provision, and materials prepared or submitted in connection with such proceedings shall not be admissible in any other proceeding, provided, however, that this confidentiality provision shall not prevent a petition to vacate or enforce an arbitral award, and shall not bar disclosures required by law. Each party shall be entitled to seek equitable relief against the other party (in addition to any other rights available under this Agreement or at law) for any breaches of its obligations under this Agreement (without the necessity of posting a bond). SS shall not be liable for any failure or delay in performance caused by anything or event beyond its control such as, but not limited to, acts of God, labor disputes, natural disasters or the actions of a third party.
- This Agreement constitutes the entire understanding between the parties with respect to the subject matter contained herein. This Agreement may be amended or modified from time to time by SS, and no amendment shall be effective without SS’s prior approval. This Agreement supersedes any prior agreements and understandings between the parties with respect to the subject matter contained herein. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. No waiver by any party of any provision of this Agreement in any instance shall be effective unless in writing, signed by the affected party, and no such waiver shall constitute a waiver as to any other provision of this Agreement in any other instance. All terms which by their nature survive termination or expiration of this Agreement shall survive, including, without limitation Sections 3, 4, 5, 6, 7, and 8.