ScienceTRAX Subscription Agreement Terms & Conditions

1. Application License and Ownership

1.1 License Grant.  ScienceTRAX provides a web-based research software application called StudyTRAX that allows users to collect, analyze, and report outcomes research data. Subject to these terms and conditions, ScienceTRAX 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 retains all right, title and interest in the Service Applications licensed hereunder and any associated Documentation, updates or revisions thereof.

1.3 License Restrictions. Subscriber will not have the right to grant access to Service Applications and the Documentation to any persons other than the Users at the authorized location(s). The right to access will not include the right to reproduce the Service Applications, or to reproduce or alter the object code contained therein, or to access the data of any third party. Subscriber’s access will be limited to information and portions of databases relating solely to Subscriber. Except as expressly authorized in this Agreement, Subscriber may not reproduce, alter, distribute or transfer (by any means), display, sublicense, rent, lease, reverse engineer, decompile or disassemble, use in a service bureau, or create derivative works from any Service Applications or Documentation or use the Services to attempt any of the foregoing.

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 shall provide access for the Subscriber to the Service Applications provided that Subscriber acknowledges and agrees that ScienceTRAX 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 shall use all commercially reasonable efforts to maintain availability in accordance with the SLA.

3. Responsible Use of Subscriber.  It is the sole and exclusive responsibility of Subscriber to use the Subscription Services in accordance with all applicable local, state, federal and foreign laws and regulations. Subscriber shall be solely and exclusively responsible for all costs, expenses and penalties relating to Subscriber’s failure to comply with such laws and regulations.

4. Payment Terms

4.1 Subscription Fees. In consideration of the Service Applications to be provided by ScienceTRAX, 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’ 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 may require assurances of payment and may suspend the provision of some or all of the Service Applications pending receipt of payment.

5. Term and Termination

5.1 Term.  Access to the Service Applications continues for the period set forth in the Initial Term and then automatically renews for additional one-year Renewal Terms unless and until either Party has provided the other Party with written notice of termination, not less than thirty (30) days prior to the expiration of the Initial Term or then current Renewal Term.

5.2 Termination.  Either Party may terminate the license and access to Service Applications described herein, if the other Party commits a material breach or default (including non-payment of fees) and fails to remedy such breach or default within ten (10) days after receipt of written notice describing the breach. Upon the termination of this Agreement as a result of the expiration of the Term or otherwise, Subscriber’s access to the Services and Licensed Applications shall terminate.

6. Representations, Warranties and Indemnification; Limitation of Liability

6.1 Subscriber Representations. Subscriber represents that to the best of Subscriber’s knowledge (a) all information provided to ScienceTRAX 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 Representation.  ScienceTRAX 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 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.

6.4 General Indemnification.  Each Party shall indemnify and hold harmless the other Party from any action brought against the other Party based on the negligence or willful misconduct of the Party in breach. The Party in breach will pay the actual costs and damages incurred by the indemnified Party in such actions provided that the indemnified Party promptly notifies the Party in breach of the claim. Neither Party shall be indemnified for its own negligence of willful misconduct.

6.5. Indemnification for Infringement. ScienceTRAX 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 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 of the claim, allows ScienceTRAX to control the defense thereof and does not agree to any settlement without ScienceTRAX’ prior consent. Subscriber agrees to provide, at ScienceTRAX expense, such information and assistance as ScienceTRAX 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’ opinion be likely to become, the subject of a claim of infringement of a patent, trade secret or copyright, ScienceTRAX 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.

6.6 Exclusive Remedy. This Article 6 states the exclusive remedy of Subscriber with respect to any Service Applications infringement of third-party patents, trade secrets, copyrights or other proprietary rights.

6.7 Accuracy of Information. ScienceTRAX 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 LIABILITY HEREUNDER IS LIMITED TO THE SUBSCRIPTION FEES PAID BY SUBSCRIBER IN CONNECTION HEREWITH, AND IN NO EVENT SHALL SCIENCETRAX BE RESPONSIBLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, WHETHER OR NOT SCIENCETRAX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IT IS FURTHER EXPRESSLY AGREED THAT SCIENCETRAX 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. Miscellaneous Provisions

7.1 Relationship of the Parties. The relationship of ScienceTRAX 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 ScienceTRAX. 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 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.

7.3 Electronic Signatures.  Each Party acknowledges and agrees this Agreement may be entered into electronically and e-signatures of each Party will have the same force and effect as written signatures.

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 ScienceTRAX.

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.

7.6 Severability. If any provision hereof shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby.

7.7 Choice of Law. These terms shall be governed by, construed and interpreted in accordance with state law applicable to Subscriber’s location, without reference to principles of conflict of law.

7.8 Entire Agreement. Each Party acknowledges that it has read these terms and conditions, understands them, and agrees to be bound by the terms set forth herein and further agrees that these Terms and Conditions together with any separate agreement which the Parties elect to execute in connection with each Party’s obligations under HIPAA, constitute the complete and exclusive Agreement between the Parties, which supersedes all prior proposals, understandings and agreements, oral or written between the Parties relating to the subject matter hereof.