IMPORTANT – READ CAREFULLY
1. Registration/Access and Use.
a. Use of the URL via the Website and eLearning(s) will require Customer to: (i) pay a one-time URL setup fee at Medidata’s then current rates, which as of the date of this TOU is $1,875 (such fee may be waived if Customer has previously paid for same URL under a separate Medidata contract); and (ii) register and complete the iMedidata eLearning training sessions listed below:
b. Upon completion, Medidata will provide Customer access and use to the URL via the Website. Customer account is authorized for Customer access and use, is non-transferable, and has been set up for Customer as a “URL Holder”. As such, Customer may provide authorized access and use of the URL to Customer’s employees, contractors and third-party service providers (including contract organizations) solely for the purpose to access Medidata services on your behalf (“Authorized Users”), which may be contracted separately. Customer shall be liable for the acts and omissions of such Authorized Users and/or any loss that Customer may incur as a result of Authorized Users access. The access and use rights granted to Customer under these TOU terminate immediately if Customer fails to comply with the terms and conditions in these TOU. Medidata also has the right, but not the duty, to terminate or suspend Customer access to the URL, without notice, for any conduct that Medidata, in its sole reasonable discretion, believes is in violation of any applicable law or is harmful to the interests of Customer, another user, a service provider or Medidata. Customer must at all times keep secure and maintain the confidentiality of all copies of downloaded materials in Customer’s possession or control, including the period following termination of Customer’s access rights.
c. Each party will not disclose to any third party the confidential information of the other and shall use at least the same degree of care, discretion and diligence in protecting the confidential information of the other party as it uses with respect to its own confidential information.
2. Authorized Users. Customer has been granted express authority by Medidata to permit Authorized Users to access the URL via the Website for Medidata services on your behalf. Customer shall not provide any third parties access to the URL for any other purposes including hosting, service bureau, time sharing, outsourcing, or other commercial services not permitted by this TOU. Customer shall be solely responsible for verification of the identity of such Authorized Users, including obtaining and maintaining records of such Authorized Users accessing the URL. Any such third-party access shall be subject to these TOU.
3. Access and Use and Limitations. Subject to these TOU, Customer shall enable access to the URL for use only by Customer and Authorized Users for Customer’s internal business purposes in accordance with these terms, and not for the benefit of any third party or for any other purpose. By execution of the TOU, Customer agrees and acknowledges the responsibility for i) completion of the eLearning training modules as included in 1 above; ii) user administration of Customer’s URL (including Authorized Users); iii) ensuring appropriate resource availability for granting/changing access to URL in a timely manner; and iv) reviewing, approving and confirming timelines for hotfixes or upgrading URLs in writing; v) not to: a) decompile, disassemble, or reverse engineer any software, b) copy, distribute, sell, lease, sub-license or transfer any such software or materials available to Customer or c) alter, modify or create derivative works based on any such software or materials. In addition, Customer agrees not to: (d) misattribute the source of or otherwise falsify the information transmitted through the Website; (e) place false or misleading information on the Website; (f) use or access the Website and/or URL in a manner not expressly permitted by Medidata; (g) input or upload to the Website and/or URL any information which contains viruses or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, the Website and/or URL, or that infringes the intellectual property rights of another; and (h) use or access the Website and/or URL in any way that, in Medidata’s judgment, adversely affects the performance or function of the Website and/or URL or interferes with the ability of Authorized Users to access the Website and/or URL. Except as described in these TOU, no other rights or licenses are granted to Customer concerning access or use of the URL, Website or any other content provided to Customer by Medidata.
4. Copyright. Medidata, its suppliers or the original creator of the material own all copyrights to material on the documentation and all other intellectual property rights related to the URL. Medidata grants Customer permission to copy materials to which Customer have authorized access on the URL solely in support of Customer’s use of the URL, associated training, or, if applicable, other Medidata products. Customer agree that any copies of material shall retain all copyright and other proprietary notices in the same form and manner as the original. Customer may not, without Medidata’s permission, “mirror” any material contained on the URL or associated training. Except as specified above, nothing contained in the TOU shall be construed as conferring by implication, estoppel or otherwise any license or right under any trademark, patent, copyright, or any other intellectual property right of Medidata or any third party.
5. Trademarks. Medidata, the Medidata logo, and the products and services described in iMedidata and eLearning(s) are either trademarks, service marks or registered trademarks of Medidata Solutions, Inc. in the U.S. and/or other countries and may not be copied, imitated or used, in whole or in part, without the express written permission of Medidata. All other trademarks, registered trademarks, product names or logos appearing on the Website and eLearning(s) are the property of their respective owners or of Medidata Solutions, Inc. in the U.S. and/or other countries.
6. Information Provided to Medidata. To the extent permitted by data protection laws (see Section 9 of this TOU) Customer agrees that Medidata and its related companies may use Customer’s submissions (which include the professional, demographic, user, facilities or training profile information maintained by Customer) without notice, compensation, or acknowledgment to Customer, in the course of Medidata’s business purposes, including but not limited to developing its own products and services. Other than as set forth in the preceding sentence, Medidata will not provide Customer’s data for any purpose to any third party except to its own providers (such as subprocessors or subcontractors) subject to restrictions of confidentiality at least equal to those set forth herein. Except as set forth in this TOU, Customer submissions shall not be subject to any obligation on Medidata’s part, including, without limitation, any obligation of confidentiality, and we shall not be liable for any use or disclosure of any submissions. Customer bear sole responsibility for maintaining the accuracy of the information Customer provides to Medidata utilizing the Website and/or URL, including Customer’s submissions.
7. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW AND REGARDLESS OF THE FORM OR CAUSE OF ACTION OR THE ALLEGED BASIS OF THE CLAIM, MEDIDATA, ITS RELATED COMPANIES, DIRECTORS, EMPLOYEES, REPRESENTATIVES OR AGENTS MAY NOT, UNDER ANY CIRCUMSTANCES BE HELD LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF (OR THE INABILITY TO USE) THE WEBSITE OR ANY MATERIAL ON THE WEBSITE. THIS INCLUDES, BUT IS NOT LIMITED TO, THE LOSS OF DATA OR LOSS OF PROFIT, EVEN IF MEDIDATA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AND ACKNOWLEDGE THAT YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY DEFECT OR DISSATISFACTION WITH THE SITE IS TO CEASE TO USE THE SITE. SOME JURISDICTIONS DO NOT ALLOW THESE LIMITATIONS OF LIABILITY AND EXCLUSIONS OF WARRANTIES; THEREFORE, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE OR WITHIN NATIONAL JURISDICTIONS.
8. Governing Law. The validity, construction and performance of this Agreement will be governed by the substantive laws of the State of New York, without giving effect to any provisions that would result in this Agreement being governed by the law of any jurisdiction other than that of the State of New York, USA. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods. Customer consents to the exclusive jurisdiction of, and venue in, any federal or state court located in the Borough of Manhattan, New York City for the purposes of adjudicating any matter arising from or in connection with these TOU. YOU EXPRESSLY WAIVE ANY OBJECTION THAT YOU MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE OR TO THE JURISDICTION OF ANY SUCH PROCEEDING. YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE, AND/OR CONTENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE.
9. Privacy. Medidata believes strongly in protecting user privacy and providing Customer notice of Medidata’s collection and use of data, including Personal Data, as defined under the General Data Protection Regulation (EU) 2016/679 (the “GDPR”) and any successor laws governing data protection. Medidata uses Customer’s Personal Data to provide Customer access to the URL and eLearnings (including the Website) where Customer registered for, access and make use of, the URL. Beyond the purpose of providing Customer access to the Website, URL and eLearnings, Medidata acts as a processor (as defined under the GDPR) for and on behalf of Customer. As processor, Medidata will process Customer’s Personal Data only according to this TOU and any written amendments thereto (the “Instructions”). As such, Medidata may make use of your Personal Data to: (1) provide Customer with notice of updates to this TOU, (2) improve the Website or Authorized Applications, and (3) develop products related to the Website or Authorized Applications. Medidata will apply all applicable protections for Customer’s Personal Data contained in our Data Processing Exhibit hereby incorporated into this TOU by reference (along with, where referenced, the Standard Contractual Clauses). Medidata maintains an EU-US and Swiss-US Privacy Shield certification, and will execute the Standard Contractual Clauses referenced in the prior sentence with Customer only upon Customer’s request.
10. Compliance with Law and Good Clinical Practices. Customer agrees to use the Website and its content in strict compliance with all applicable laws, rulings and regulations and in a fashion that does not, in the sole judgment of Medidata, negatively reflect on the goodwill or reputation of Medidata. Customer further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law or regulation. While Medidata has designed its software and services to adhere to
International Conference on Harmonisation (ICH) Good Clinical Practices (GCP) and similar international regulations and guidelines (such as those issued by EMA and FDA) applicable to electronic clinical research data, each Medidata customer and their Authorized Users are responsible for ensuring that their use of the software and services comply with all such regulations and practices.
12. Disclaimers. Material, including software, on the Website, is provided “as is”, and Medidata may change the information on the Website. As Customer does not have to remunerate Customer’s access to the Website, Medidata does not provide any warranty, unless acting willfully or with gross negligence. Medidata specifically disclaims any warranties of merchantability or fitness for a particular purpose with respect to the URL or any content or material on the URL. Medidata makes no warranty that (i) the URL will meet Customer’s requirements, (ii) access to the URL will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Website and/or URL will be accurate or reliable.