SPCD COMPARATIVE ANALYSIS SOFTWARE LICENSE AGREEMENTPLEASE READ THIS SPCD COMPARATIVE ANALYSIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY. BY CLICKING THE “I AGREE TO THIS AGREEMENT” BUTTON AS PART OF THE REGISTRATION PROCESS REQUIRED TO ACCESS AND USE THE RCT LOGIC SOFTWARE (AS DEFINED BELOW) ON THE WEB SITE OWNED AND OPERATED BY RCT LOGIC, LLC (“RCT LOGIC”) AT WWW.RCTLOGIC.COM, YOU, AS A LICENSEE (“LICENSEE”), ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE RCT LOGIC SOFTWARE. THE TERM “LICENSEE” FOR PURPOSES OF THIS AGREEMENT, MEANS BOTH YOU IN YOUR INDIVIDUAL CAPACITY, AND THE COMPANY OR OTHER ENTITY WHOM YOU REPRESENT AND ON WHOSE BEHALF YOU ACCESS AND USE THE RCT LOGIC SOFTWARE UNDER ACTUAL OR APPARENT AUTHORITY. BY AGREEING TO THIS AGREEMENT AND/OR USING THE RCT LOGIC SOFTWARE, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO REPRESENT AND LEGALLY BIND THE COMPANY OR OTHER ENTITY FOR WHOM YOU ARE ACTING. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU ARE SOLELY RESPONSIBLE FOR ALL ACTS AND OMISSIONS RELATING TO YOUR USE OF THE RCT LOGIC SOFTWARE.
1.1 “Documentation” means any printed, online, or other electronic user documentation that may be supplied by RCT logic for use with the RCT Logic Software.
1.2 “Feedback” means any comments, suggestions or other information regarding the operation, performance and characteristics of the RCT Logic Software, including without limitation, user experiences using the RCT Logic Software, including ease of use, problems or defects encountered, software errors, new features or functionality suggested or recommended for the RCT Logic Software, and other feedback that would reasonably be of interest to RCT Logic, including, any suggestions for modifications, changes or improvements to the RCT Logic Software.
1.3 “Intellectual Property Rights” means any and all now known or hereafter existing: (i) rights associated with works of authorship throughout the universe, including exclusive exploitation rights, copyrights and moral rights; (ii) trademark and trade name rights; (iii) trade secret rights; (iv) patents, designs, algorithms, mask works, and other industrial property rights; (v) other intellectual property and proprietary rights of every kind and nature throughout the universe, whether arising by operation of law, by contract or license, or otherwise; and (vi) all registrations, applications, renewals, extensions, combinations, divisions, or reissues of the foregoing.
1.4 “RCT Logic Software” means RCT Logic’s proprietary comparative analysis software which analyzes the statistical “power” of clinical trial designs, including the sequential parallel comparison design (“SPCD”).
2.1 Grant. Subject to the Licensee’s compliance with the terms of this Agreement, RCT Logic hereby grants to the Licensee a limited, non-exclusive, non-transferable, non-sublicensable license during the term of this Agreement, to access the RCT Logic Software and Documentation through the RCT Logic web site and to use, on the RCT Logic web site, the RCT Logic Software and Documentation solely for the Licensee’s own internal use pursuant to the terms of this Agreement. The RCT Logic Software will at all times be hosted by RCT Logic on the RCT Logic web site, and the Licensee may not download or copy the RCT Logic Software. The Licensee may print or download a reasonable number of copies of any Documentation made available by RCT Logic, on condition that: (i) the Licensee uses the Documentation for the sole purpose of assisting the Licensee to use the RCT Logic Software for its permitted purpose as set forth in this Section 2.1; (ii) the Licensee does not provide a copy of the Documentation to any third party; and (iii) the Licensee must reproduce, on all copies of the Documentation, and must not remove, alter, or obscure in any way, all proprietary rights notices (including, but not limited to, copyright notices) of RCT Logic or its licensors on or within the copies of the Documentation furnished by RCT Logic to the Licensee, or on or within the copies of the Documentation made by the Licensee as permitted under this Section 2.1.
2.2 Restrictions. The Licensee acknowledges and agrees that the structure, organization and sequence of the RCT Logic Software constitute valuable trade secrets of RCT Logic and its licensors. The Licensee agrees not to, and agrees not to permit or induce any third party to: (i) copy, download, modify, adapt, alter, translate, or create derivative works from, the RCT Logic Software; (ii) merge the RCT Logic Software with other software; (iii) distribute, sublicense, lease, rent, loan, or otherwise transfer the RCT Logic Software to any third party, or enable the use of the RCT Logic Software on a time-share or service bureau basis; or (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the RCT Logic Software. RCT Logic is not required to provide any technical or other support to the Licensee in connection with the Licensee’s use of the RCT Logic Software.
2.3 Ownership & Reservation of Rights. The RCT Logic Software, Documentation and RCT Logic trademarks, and all worldwide Intellectual Property Rights embodied therein, or applicable thereto, are the sole and exclusive property of RCT Logic and its licensors. All rights, title and interest in and to the RCT Logic Software, Documentation and RCT Logic trademarks not expressly granted to the Licensee in this Agreement, are reserved by RCT Logic and its licensors. There are no implied rights. WITHOUT LIMITING THE FOREGOING, THE LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (I) THIS AGREEMENT ONLY PERMITS THE LICENSEE TO ACCESS AND USE THE RCT LOGIC SOFTWARE FOR ITS INTERNAL USE; (II) THE SPCD TECHNOLOGY AND METHODS ARE THE SUBJECT OF ONE OR MORE ISSUED OR PENDING UNITED STATES PATENTS THAT ARE EXCLUSIVELY LICENSED TO RCT LOGIC, AND NO LICENSE OR OTHER PERMISSION IS GRANTED TO THE LICENSEE UNDER SUCH PATENTS OR ANY OTHER APPLICABLE INTELLECTUAL PROPERTY RIGHTS PURSUANT TO THIS AGREEMENT; AND (III) IF THE LICENSEE WISHES TO LICENSE RCT LOGIC’S INTELLECTUAL PROPERTY RIGHTS COVERING THE SPCD TECHNOLOGY OR METHODS, THE LICENSEE WILL CONTACT RCT LOGIC TO DISCUSS THE TERMS OF A POTENTIAL LICENSE; PROVIDED HOWEVER, THAT NOTHING IN THIS AGREEMENT WILL BE INTERPRETED TO REQUIRE RCT LOGIC TO NEGOTIATE OR EXECUTE ANY SUCH LICENSE WITH THE LICENSEE.
3. ADDITIONAL LICENSEE OBLIGATIONS.
3.1 Conduct of Business. In connection with this Agreement, the Licensee will maintain the highest standards of professionalism and will at all times comply with all applicable laws, rules and regulations and refrain from any unethical or other conduct that could reasonably damage the reputation of RCT Logic, the RCT Logic Software or RCT Logic’s name or trademarks.
3.2 Feedback. Any Feedback provided by the Licensee to RCT Logic concerning the RCT Logic Software, will be the sole and exclusive property of RCT Logic and RCT Logic will be free to use the Feedback for any and all purposes, without attribution or compensation to the Licensee or any third party.
4. DISCLAIMER OF WARRANTIES. THE RCT LOGIC SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. RCT LOGIC ON BEHALF OF ITSELF AND THE OTHER RCT PARTIES (AS DEFINED BELOW) HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS, OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE RCT LOGIC SOFTWARE IS ERROR-FREE, WILL FUNCTION WITHOUT INTERRUPTION, OR IS SUFFICIENTLY DOCUMENTED TO BE USABLE BY THE LICENSEE. THE LICENSEE ASSUMES THE ENTIRE RISK ARISING OUT OF THE PERFORMANCE OR USE OF THE RCT LOGIC SOFTWARE AND DOCUMENTATION. TO THE EXTENT THAT RCT LOGIC MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW. THE LICENSEE ACKNOWLEDGES THAT IT HAS RELIED ON NO REPRESENTATIONS OR WARRANTIES (INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS, WARRANTIES, OR OTHER STATEMENTS THAT MAY HAVE BEEN MADE ORALLY OR IN WRITING), AND IS RELYING SOLELY UPON ITS OWN JUDGMENT AND EXPERTISE, AS TO THE SUITABILITY OF THE RCT LOGIC SOFTWARE AND DOCUMENTATION FOR THE LICENSEE’S USE.
5. INDEMNIFICATION. The Licensee will: (a) defend RCT Logic and its parents, affiliates, subsidiaries, licensors, and third party service providers, and its and their directors, officers, members, employees, contractors, agents, successors and assigns (collectively, the “RCT Logic Parties”) at the Licensee’s own expense, from and against any third party claim, action or proceeding brought or made against RCT Logic to the extent such action is based upon: (i) the Licensee’s breach of the terms of this Agreement; or (ii) the Licensee’s negligence or willful misconduct; and (b) indemnify and hold the RCT Logic Parties harmless from all damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) incurred in connection with the matters specified in clause (a) of this Section.
6. LIMITATIONS OF LIABILITY.
6.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL THE RCT LOGIC PARTIES BE LIABLE TO THE LICENSEE OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, DATA, BUSINESS, OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE RCT LOGIC SOFTWARE OR DOCUMENTATION, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ANY RCT LOGIC PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
6.2 TOTAL LIABILITY. IN NO EVENT SHALL THE RCT LOGIC PARTIES' CUMULATIVE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY, EXCEED THE SUM OF ONE HUNDRED US DOLLARS (US$100). THIS LIMITATION OF LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT.
6.3 Basis of Bargain. The parties expressly acknowledge and agree that RCT Logic has agreed to license the RCT Logic Software and Documentation on the terms set forth in this Agreement in express reliance upon the limitations of liability specified herein, which allocate the risk between RCT Logic and the Licensee.
7. TERM AND TERMINATION.
7.1 Term. The term of this Agreement will commence on the date on which the Licensee clicks the “I Accept the Terms of this Agreement” button as part of the registration process required to access and use the RCT Logic Software on the RCT Logic web site.
7.2 Termination. This Agreement will terminate upon written notice by either party to the other party, which notice of termination may be provided for any or no reason. In addition, this Agreement will automatically be deemed to terminate if: (i) the Licensee fails to access the RCT Logic Software for more than 90 calendar days; or (ii) if the Licensee breaches the terms of this Agreement.
7.3 Effects of Termination. Upon the termination of this Agreement for any reason: (i) all licenses granted in this Agreement will immediately cease to exist, and the Licensee must promptly discontinue all further use of the RCT Logic Software and Documentation, and destroy any copies of the Documentation in its possession; and (ii) Sections 1 (Definitions), 2.2 (Restrictions), 2.3 (Ownership & Reservation of Rights), 3.2 (Feedback), 4 (Disclaimer of Warranties), 5 (Indemnification), 6 (Limitations of Liability), 7.3 (Effects of Termination), and 8 (Miscellaneous) of this Agreement will survive the termination of this Agreement.
8.1 Assignment. The Licensee may not assign this Agreement or delegate any of its obligations under this Agreement, by operation of law or otherwise (including, without limitation, by merger, sale of assets, or consolidation), without RCT Logic’s express prior written consent. Any attempted assignment in violation of this Section 8.1 will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
8.2 Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws of the State of New York, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and shall not apply to this Agreement. Furthermore, this Agreement (including, without limitation, the RCT Logic web site and RCT Logic Software) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
8.3 Severability. If for any reason a tribunal of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
8.4 Notices. All notices required or permitted under this Agreement will be in writing and delivered by hand, confirmed facsimile, courier, overnight delivery service, or certified mail, and in each instance will be deemed given upon receipt. Notices to RCT Logic will be sent to RCT Logic, LLC, 830-13 Route A1A North, Suite 327, Ponte Vedra, FL 32082-3287, fax no.: 914-725-1424. Notices to the Licensee will be sent to the address or fax number provided by the Licensee during the registration process completed by the Licensee to enable it to access and use the RCT Logic Software. In addition to the foregoing, RCT Logic may terminate this Agreement pursuant to Section 7.2 above, by sending an e-mail to the Licensee indicating such termination, and such e-mail will constitute written notice for purposes of Section 7.2.
8.5 Relationship of Parties. The parties are independent contractors, and no agency, employment, partnership, fiduciary, or joint venture relationship is intended or created by this Agreement. Neither party (nor any agent or employee of that party) is the representative of the other party for any purpose and neither party has the power or authority as partner, agent, employee, or in any other capacity, to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. There are no third party beneficiaries to this Agreement.
8.6 Waivers. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
8.7 U.S. Government Users. The RCT Logic Software and Documentation are a “Commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through § 227.7202-4, as applicable, the RCT Logic Software and Documentation are licensed to U.S. Government end users: (i) only as “Commercial items”; and (ii) with only those rights as are granted to all other licensees pursuant to the terms and conditions of this Agreement.
8.8 Entire Agreement. This Agreement contains the complete understanding and agreement of the parties, and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter hereof. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the parties.
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