By using or accessing software made available by Endpoint Clinical, Inc., its licensors, or affiliates (collectively, “Endpoint”) you, on behalf of yourself, as a representative of your employer, and any entity with which you are associated (“You”) hereby agree:
1.1 As used throughout this Agreement, “Software” shall mean software products provided by Endpoint together with all applicable documentation, including, for example, the technical specifications, documentation, and user guides and all descriptions of or about the Software, or otherwise made available by or on behalf of Endpoint (collectively, “Documentation”). The term “Software” shall be deemed to include any source code, object code, binaries, executables, configurations, enhancements, additions, derivative works, or other modifications of or to the Software (including descriptions thereof).
1.2 You represent and warrant that (a) You have received a valid user id and password (“Access Credentials”) to access the Software, (b) You will not share or distribute the Access Credentials; (c) You will not permit any other person or entity to utilize the Access Credentials, and (d) You have been authorized by at least one sponsor (“Sponsor”) to access and use the Software in connection with its clinical trials (“Trials”). You shall be responsible for the actions and inactions of all users of the Access Credentials. You agree that all Access Credentials, the Software, and all descriptions thereof are Endpoint’s confidential information, and may not be used, shared, or shared with any third party without Endpoint’s express prior written consent.
1.3 Restrictions. You represent and warrant that neither You, anyone under Your control, any employees, agents or subcontractors thereof (neither themselves nor cause, authorize, encourage, or otherwise permit others to), whether by action or inaction, directly or indirectly, will do any (or attempt any) of the following: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software; (ii) modify or create derivative works (as defined under U.S. copyright laws) of the Software; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer any rights or ability to use the Software; (iv) use the Software for timesharing or service bureau purposes or otherwise for the benefit of any third party; (v) remove any proprietary notices from the Software, any search results or any other Endpoint materials furnished or made available hereunder; (vi) publish or disclose to third parties any evaluation or description of the Software without Endpoint’s prior written consent; (vii) use the Software to develop a database, online, or similar database service, or other information resource of any kind (print, electronic, or otherwise) for sale to, distribution to, display to or use by others or otherwise create or attempt to create a substitute or similar service or product through use of or access to any of the Software or proprietary information related thereto; (viii) use the Software to store, add, or transmit infringing, libelous, or otherwise unlawful or tortious material, or any material in violation of third-party rights (or otherwise use the Software in violation of any instructions or other documentation), including any rights of data privacy; (ix) store or transmit virus or other malicious code through the Software; (x) interfere with or disrupt the integrity or performance of the Software or third-party products or data contained therein; (xi) attempt to gain unauthorized access to the Software or the related systems or networks of Endpoint or its vendors; (xii) store in a retrieval system accessible to the public, transfer, publish, distribute, display to others, broadcast, sell or sublicense the Software, or any portion thereof; (xiii) pre-fetch, “crawl,” “spider,” or in any non-transitory manner store or cache any information obtained from the Software (including results or any part or copy or derivative thereof), except to store limited amounts of data provided by the Software for internal use so long as such storage is done temporarily, securely, and in a manner that does not permit use of the data outside of the Software. You agree, acknowledge, and warrant, without limitation, that no information You provide to Endpoint shall infringe or misappropriate any right of any third party; and use of or access to the Software not in strict accordance with the terms of this Agreement (1) is strictly prohibited, (2) shall constitute an act beyond the scope of the license grant to You, and (3) is an act of infringement by You under intellectual property laws of the United States and other jurisdictions.
1.4 Hardware. Endpoint disclaims all responsibility for liability for and relating to obtaining and maintenance of all computer hardware, software, and communications equipment used by You to access and use the Software (“Equipment”). You shall be responsible for paying all third-party fees and third-party access charges (e.g., ISP, telecommunications, bandwidth, and hosting) incurred while using or accessing the Software. You shall also be responsible for maintaining the security of the Equipment, Your accounts, passwords, Access Credentials (including, but not limited to, administrative and user passwords) and files, and for all uses of Your accounts or the Equipment. Equipment includes, but shall not be limited to, laptop and desktop computers, printers, and mobile devices, and all other devices controlled by or otherwise used by You to access and/or use the Software.
1.5 Third Party Solutions. With respect to software, Endpoint provides only the Software. As applicable, there may be code, applications, and data that are provided by entities or individuals other than Endpoint, that interoperate or integrate with the Software or Services, and/or made available with or for use with the Software (“Third Party Solutions”). Notwithstanding anything to the contrary, any right to use Third Party Solutions are governed solely by the terms of license agreements that apply to the Third Party Solutions and not under this Agreement. Endpoint does not provide any warranty on any Third Party Solutions or any information or Study Data (as herein defined) received therefrom, and the Third Party Solutions are not deemed part of the Software or Service. Notwithstanding anything to the contrary, Endpoint makes no warranties or representations whatsoever regarding such Third Party Solutions or any Equipment. You shall not provide any personal identifiable information (PII), personal data (Personal Data), any protected health information (PHI) into any system or application, for example, a telephone response system, provided by Endpoint relating to any Trial other than the Software.
1.6 Nature of Internet. You acknowledge that, notwithstanding any obligations of Endpoint, use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent precautions and illegally, or without authorization, gain or attempt to gain access to the Software and data. Accordingly, Endpoint cannot and does not guarantee the privacy, security, integrity, or authenticity of any information so transmitted over or stored in any system connected to the Internet or Equipment.
1.7 Suspension. Notwithstanding anything to the contrary, Endpoint at its discretion, without obligation to You, and without limiting any other remedy available at law or equity, may suspend or terminate access to any Service or Software: (a) prevent actual, threatened, or suspected damage to or degradation of or to the Software, the Study Data, or any other system, any violation these terms; or (b) comply with any law which requires immediate action.
2.1 Indemnification. You will defend, indemnify, and hold harmless Endpoint, and its successors and assigns, affiliates, officers, directors, shareholders, personnel, employees, and agents of any kind (“Endpoint Indemnitees”) against all actual or threatened, claims, investigations, demands, damages, judgments, losses, and liabilities (including reasonable costs, expenses, and attorneys’ fees), arising out of or related to, at least in part from, whether direct or indirect: any use of the Software by You; any breach of laws or this Agreement by You.
Any Party liable to provide indemnification hereunder shall be entitled to control the defense and settlement of any claim on which it is liable. The Parties shall reasonably cooperate in the investigation, defense, and settlement of any claim. Any indemnifying Party will have no obligation to defend, indemnify or hold harmless an indemnitee with respect to claims against an indemnitee which were settled by the indemnitee without the prior written consent, which consent may not be unreasonably withheld, of the indemnifying Party.
2.2 Notice. Any notice, statement, copy, or other communication provided for herein to Endpoint shall be in writing and shall be considered as duly delivered upon (a) actual receipt or when personally delivered, (b) when mailed by first class, registered or certified mail, postage prepaid, or (c) sent by reputable courier service to
Endpoint Clinical Inc.
55 Francisco Street
San Francisco, California 94133
Attention: General Counsel
With copy to: NOTICES@endpointclincical.com
2.3 Governing Law. The provisions of this Agreement, any SOWs, and any documents delivered pursuant hereto shall be governed by and construed in accordance with the laws of North Carolina, USA (excluding any conflicts-of-law rule or principle that might refer same to the laws of another jurisdiction). Each of the Parties hereto represents, warrants, and covenants that it has had ample opportunity to consider entering into this Agreement and has had an opportunity to consult with counsel regarding this Agreement to negotiate changes to this Agreement prior to executing the same, and the neither the Uniform Commercial Code nor the United Nations Convention on Contracts for the International Sale of Goods shall apply.
2.4 Dispute Resolution/No Indirect Damages.
2.4.1 In no event shall Endpoint be liable for any consequential, punitive, exemplary, special, incidental, or indirect damages of any kind, including, without limitation, loss or integrity of data, loss of profits, cost of procurement or replacement goods and services, cover, or reliance damages, arising out of or in connection with this Agreement or and SOW or the delivery, use or performance of any Service, or the Software, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability, or otherwise, and whether or not Endpoint has been advised of the possibility of such loss or damage. The Parties agree that these limitations will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
2.4.2 You agree that in all actions and proceedings arising out of or relating directly or indirectly to the terms herein, or any ancillary agreement or any other related obligations shall be litigated solely and exclusively in the state or federal courts located in North Carolina, USA and that such courts are convenient forums. Each party hereby submits to the personal jurisdiction of such courts for purposes of any such actions or proceedings and expressly waives objection thereto. You additionally waive any right to join in any class actions.
2.5 Waiver. The Parties may waive any rights or obligations of this Agreement only by a writing executed by the Party or Parties against whom the waiver is sought to be enforced. No failure or delay (a) in exercising any right or remedy, (b) in requiring the satisfaction of any condition under this Agreement or any SOW, and (c) no act, omission or course of dealing between the Parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver against any other person.
2.6 Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity of enforceability of any other provision hereof.
2.7 Compliance Provisions
2.7.1 Anti-Bribery. Pursuant to this Agreement, You represent that You have not and agree that will not violate the laws and regulations of the United States of America (including the Foreign Corrupt Practices Act), any local laws of the country of operation, the country in which business is being conducted, or any other relevant country as applicable (including the United Kingdom Bribery Act of 2010) pertaining to bribery, improper payments, and kickbacks.
Pursuant to this Agreement, You agree that You have not and will not, either directly or indirectly, engage in bribery, or offer, or promise, or solicit, or make, or receive any “improper payment”, including, but not limited to, cash, loan, gift, travel, entertainment, hospitality, facilitation payment, kickback, political or philanthropic contribution, anything of value for the benefit of the Parties or its personnel or any entity or individual associated with the Parties or its personnel, or for any other perceived benefit as an inducement to act or refrain from acting, or in order to improperly obtain or retain a business advantage in relation to this Agreement.
2.7.2 Trade Controls. Notwithstanding any other provision of this Agreement to the contrary, You shall comply with, and retain responsibility for its compliance with, all applicable export control laws (e.g., the U.S. Export Administration Regulations) and economic sanctions programs (e.g., economic sanctions maintained by the U.S. Treasury Department against certain countries and Specially Designated Nationals and Blocked Persons (“SDNs”)) relating to its respective business, facilities, and the provision of services to third parties (collectively, “Trade Control Laws”). It shall be in the sole discretion of the Parties to refrain from being directly or indirectly involved in the provision of goods, software, services, and/or technical data that may be prohibited by applicable Trade Control Laws, including sanctions currently in place against Cuba, Iran, North Korea, Sudan, Syria, the Crimea region of Ukraine, and SDNs.
2.7.3 Anti-Boycott. Notwithstanding any other provision herein, Your obligation to enter into or complete any order or otherwise furnish any products or services or technical data under this Agreement shall be, at all times, subject to its ability to do so in a manner consistent with all applicable anti-boycott laws and regulations of the United States, including those regulations administered by the U.S. Department of Commerce Bureau of Industry and Security’s (“BIS”) Export Administration Regulations (“EAR”), 15 C.F.R. § 760, and the U.S. Department of the Treasury Internal Revenue Service’s (“IRS”) Internal Revenue Code (“IRC”), I.R.C. § 999 and Treas. Reg. § 1.999-1 (collectively, “U.S. Anti-boycott Laws”). Endpoint shall not be required to take, or to refrain from taking, any action where to do so would be inconsistent with or penalized under the U.S. Anti-boycott Laws.
2.7.4 Consent. Notwithstanding any agreement or obligation you may have with the Sponsor or any third party, you warrant, without limitation, that any personal information provided to Endpoint, e.g., via the Software or other system, shall be deemed necessary to the conduct of the clinical trial and is recognized under all relevant statutes including data management and retention policies of both Endpoint and the Sponsor, and that all necessary consents have been obtained and maintained.
2.8 Assignment. You shall not assign, nor any of the rights, interests, or obligations hereunder without the prior written consent of Endpoint.