...
Studytrax Subscription Agreement Terms & Conditions
1. Application License and Ownership
1.1 License Grant. ScienceTRAX Studytrax provides a web-based research software application called StudyTRAX that StudytraxTM that allows users to collect, analyze, and report outcomes research data. Subject to these terms and conditions, ScienceTRAX Studytrax grants to Subscriber a nonexclusive, non-transferable license for the authorized sites to use the service applications (the “Service Applications”) and any related applicable documentation (“Documentation”) during the Initial Term and any subsequent Renewal Term.
1.2 Title. ScienceTRAX Studytrax retains all right, title and interest in the Service Applications licensed hereunder and any associated Documentation, updates or revisions thereof.
...
2. Scope of Services. For the Subscription Fees (the “Subscription Fees”) specified for the Initial Term and any Renewal Term for which a Subscription Fee is paid, ScienceTRAX Studytrax shall provide access for the Subscriber to the Service Applications provided that Subscriber acknowledges and agrees that ScienceTRAX Studytrax does not control the data flow to its hosting environment, nor does it control the availability of Subscriber’s access to the Service Applications via Subscriber’s internet service. ScienceTRAX Studytrax shall use all commercially reasonable efforts to maintain availability in accordance with the SLA.
...
4.1 Subscription Fees. In consideration of the Service Applications to be provided by ScienceTRAXStudytrax, Subscriber shall pay the Subscription Fees for the Initial Term and any subsequent Renewal Term pursuant to the terms and conditions stated herein.
4.2 Payment Terms. All payments not otherwise due and payable on a date set forth herein, shall be due within forty-five (45) days from the date of ScienceTRAX’ Studytrax’ invoice. All payments shall be made in U.S. dollars and shall be non-refundable. Subscriber is responsible for the payment of all sales and use taxes in connection with all licensed Service Applications if not tax exempt.
4.3 Late Payments. If Subscriber is delinquent in any payment, ScienceTRAX Studytrax may require assurances of payment and may suspend the provision of some or all of the Service Applications pending receipt of payment.
...
6.1 Subscriber Representations. Subscriber represents that to the best of Subscriber’s knowledge (a) all information provided to ScienceTRAX Studytrax by Subscriber which shall be contained in the application database and any application regarding the Service Applications of Subscriber, are true, accurate and correct as of the date incorporated into the application and (b) it has the authority to enter into this Agreement on behalf of each of its authorized locations.
6.2 ScienceTRAX Studytrax Representation. ScienceTRAX Studytrax warrants that it has the right to grant the licenses set forth herein.
6.3 DISCLAIMER OF WARRANTY. THE FOREGOING REPRESENTATION IS IN LIEU OF, AND SCIENCETRAX Studytrax HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, OR NON-INFRINGEMENT.
...
6.5. Indemnification for Infringement. ScienceTRAX Studytrax shall defend, at its expense, any action brought against Subscriber based on a claim that the use of the Service Applications within the scope of this Agreement infringes any United States patent, trade secret or copyright. ScienceTRAX Studytrax will pay the actual costs and damages incurred by Subscriber in such action that are attributable to such claim, provided that Subscriber promptly notifies ScienceTRAX Studytrax of the claim, allows ScienceTRAX Studytrax to control the defense thereof and does not agree to any settlement without ScienceTRAX’ Studytrax’ prior consent. Subscriber agrees to provide, at ScienceTRAX Studytrax expense, such information and assistance as ScienceTRAX Studytrax may reasonably request. This indemnity will not apply to any claim of infringement resulting from any modifications, additions, alterations or other changes made by Subscriber to the data contained in the Service Applications. Should any of the Service Applications become, or in ScienceTRAX’ Studytrax’ opinion be likely to become, the subject of a claim of infringement of a patent, trade secret or copyright, ScienceTRAX Studytrax shall at its option (i) procure for Subscriber the right to continue to use the Service Applications, or (ii) replace or modify the Service Applications to make it non-infringing.
...
6.7 Accuracy of Information. ScienceTRAX Studytrax shall have no obligation to verify, check or otherwise inspect the source, accuracy or reliability of information furnished by Subscriber. Subscriber hereby assumes full and complete responsibility and liability for the content of such information and any demand, claim or liability associated therewith.
6.8 LIMITATION OF LIABILITY. SCIENCETRAX Studytrax LIABILITY HEREUNDER IS LIMITED TO THE SUBSCRIPTION FEES PAID BY SUBSCRIBER IN CONNECTION HEREWITH, AND IN NO EVENT SHALL SCIENCETRAX Studytrax BE RESPONSIBLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, WHETHER OR NOT SCIENCETRAX Studytrax HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IT IS FURTHER EXPRESSLY AGREED THAT SCIENCETRAX Studytrax SHALL NOT BE LIABLE TO ANY THIRD PARTY FOR ANY DAMAGES OR INJURIES WHICH SUCH PARTY INCURS, DIRECTLY OR INDIRECTLY, AS A RESULT OF ERRORS OR OMISSIONS OF SUBSCRIBER OR IN CONNECTION WITH ANY SERVICE APPLICATIONS PROVIDED.
...
7.1 Relationship of the Parties. The relationship of ScienceTRAX Studytrax and Subscriber shall be that of independent contractors. Neither Party shall have the right to enter into contracts or pledge the credit of or incur expenses or liabilities on behalf of the other Party.
7.2 Confidentiality. Each Party will regard any information provided to it as proprietary or confidential and each Party will protect the confidentiality of all such proprietary information in the same manner as it protects its own such information. The Parties expressly agree that the Service Applications, the related Documentation and these terms and conditions are proprietary to ScienceTRAXStudytrax. Subscriber will not remove or destroy any proprietary marking or legend contained in the Service Applications or the Documentation.
7.3. Subscriber Data. Subscriber shall own all data, information or material that Subscriber enters into the Software (“Subscriber Data”). Subscriber is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Subscriber Data. Subscriber acknowledges and agrees that ScienceTRAX Studytrax may use statistical data based on data entered as additional data points together in aggregate form with other statistical information related to the usage, traffic patterns and behavior of the users of the Software to provide and improve its Software and related services to its Subscribers.
...
7.4 Assignment. These Terms and Conditions shall be binding upon and will inure to the benefit of each Party and their respective successors and assigns, provided that, the rights and obligations of the Subscriber shall not be assigned without the express written consent of ScienceTRAXStudytrax.
7.5 Waiver. Either Party’s failure to exercise in any respect any right provided herein shall not be deemed a waiver of any right hereunder.
...