Terms & Conditions

The use of MTools is governed by the terms and conditions of this Beta Test Agreement:

 

BETA TEST AGREEMENT

THIS BETA TEST AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN THE INDIVIDUAL, AND THE ENTITY OR OTHER ORGANIZATION ON WHOSE BEHALF SUCH INDIVIDUAL ACCEPTS THIS AGREEMENT AND/OR ACCESSES THE PLATFORM (AS DEFINED BELOW) OR DOCUMENTATION (COLLECTIVELY, “USER”), THAT EITHER (A) CLICKS THE “I ACCEPT” BUTTON OR (B) INSTALLS, ACCESSES, OR USES THE PLATFORM OR ANY SOFTWARE OR DOCUMENTATION FROM TERMINOLOGIX, LLC (THE “COMPANY” AND, TOGETHER WITH USER, THE “PARTIES” AND EACH, INDIVIDUALLY, A “PARTY”).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT” BUTTON OR BY INSTALLING, ACCESSING, OR USING THE PLATFORM OR ANY SOFTWARE OR DOCUMENTATION FROM THE COMPANY, USER HEREBY AGREES TO BE BOUND BY THIS AGREEMENT AND REPRESENTS THAT IT IS AUTHORIZED TO DO SO.

IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “I DECLINE” BUTTON AND IMMEDIATELY CEASE ANY ATTEMPT TO ACCESS THE PLATFORM OR ANY SOFTWARE OR DOCUMENTATION FROM THE COMPANY.

 

1.    BACKGROUND

User is a duly-licensed user of the Medical Dictionary for Regulatory Activities (“MedDRA”) from the International Council on Harmonization for Pharmaceuticals for Human Use. The Company has developed an innovative web based software platform through which duly-licensed MedDRA users may view, search and manipulate MedDRA data (the “Platform” and, collectively with all related software, media, and documentation, the “Beta Product”), which the Company has not yet released for production use. User recognizes that a production version of the Beta Product could be of substantial value to User in connection with User’s MedDRA related activities, and the Company recognizes that candid feedback from live users of a non-production product will help to identify any potential deficiencies in, and opportunities to improve, the Beta Product (the “Beta Test”). Accordingly, the Parties have agreed to the terms of this Agreement.

 

2.    LICENSE GRANT, USE AND OWNERSHIP

(a)    Limited License. Subject to the terms and conditions of this Agreement, Company grants User a non-exclusive, nontransferable license (without the right to sublicense) (i) to use the Platform solely for purposes of internal testing and evaluation in a manner consistent with User’s MedDRA subscription (the “Permitted Use”); (ii) to use the documentation provided with the Platform (the “Documentation”) in support of User’s Permitted Use of the Platform; and (iii) to copy the Company software as, and solely to the extent, necessary for the proper functioning of the Platform. User represents and warrants to Company that User is a fully-paid subscriber to MedDRA and that the entry into, and performance of, this Agreement by User does not violate or conflict with, or cause a default under, any contract, covenant or commitment, including, without limitation, User’s MedDRA subscription agreement, to which User is a party or is otherwise bound or subject. User recognizes that Company’s agreement to grant User the license contemplated hereby is made in reliance upon the foregoing representation and warranty, and User intends for Company so to rely.

(b)    Evaluation Feedback. The purpose of this limited license is the testing and evaluation of the Beta Product. In furtherance of this purpose, User will attempt to provide feedback to Company concerning the functionality and performance of the Beta Product from time to time as reasonably requested by Company, including, without limitation, identifying potential errors, improvements, modifications, bug fixes, or enhancements (“Feedback”). Such Feedback will be in a manner convenient to User and will be subject to reasonable availability of User’s personnel. Notwithstanding the foregoing, prior to disclosing to Company any information in connection with this Agreement which User considers proprietary or confidential, User will obtain Company’s prior written approval to disclose such information to Company, and without such prior written approval from Company, User will not disclose any such information to Company. Feedback and other information which is provided by User to Company in connection with the Beta Product or this Agreement may be used by Company to improve or enhance its products and, accordingly, User grants Company a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback and information without restriction; provided, however, the Company shall not use or disclose User’s identity or any information that would be reasonably expected to identify User in connection therewith without User’s prior written approval, which approval may be granted, conditioned, or withheld in User’s sole discretion.

(c)    Restrictions. User shall not copy or use the Beta Product (including the Documentation) or disseminate Confidential Information (as defined below), to any third party except as expressly permitted in this Agreement. User will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form all or any part of the Platform or accompanying Documentation. In no event shall User use the Beta Products for User’s product development or any other commercial purpose or in any way in connection with User’s efforts to comply with the requirements of any governmental or regulatory body. The Beta Product and all performance data and test results, including without limitation, benchmark test results (collectively “Performance Data”), relating to the Beta Product are the Confidential Information of Company and will be treated in accordance with the terms of Section 4 of this Agreement. Accordingly, User will not publish or disclose to any third party any Performance Data relating to the Beta Product without Company’s prior written approval.

(d)    Ownership. Company shall own and retain all right, title and interest in and to the all intellectual property rights (including, without limitation, patent, copyright, trademark, trade secret, rights of accreditation, and moral rights) in the Beta Product and any derivative works thereof, subject only to the limited license expressly set forth in Section 2(a) hereof. User does not acquire any other rights, express or implied, in the Beta Product. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO COMPANY.

(e)    No Support Services. Company is under no obligation to support the Beta Product in any way or to provide any modifications, error corrections, bug fixes, new releases, or other update to or for all or any part of the Beta Product (collectively, “Updates”) to User. In the event Company, in its sole discretion, supplies any Update to User, such Update shall be deemed Beta Product hereunder and shall be subject to the terms and conditions of this Agreement.

(f)    Open Source Software. The terms and conditions of this Agreement shall not apply to any open source software accompanying or incorporated into the Beta Product. Any such open source software is provided under the terms of the open source license agreement or copyright notice accompanying such open source software. User is solely responsible for complying with, and shall comply with, the terms of any such open source license agreement or copyright notice. Open source software included with the Platform include, but may not be limited to, jQuery and Kendo UI. In addition to any and all other provisions of the respective license agreements, the following apply with respect to the specified open source software:

(i)    jQuery.  Copyright (c) 2020 The jQuery Foundation. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

(ii)    Kendo UI. Copyright © 2020, Progress Software Corporation and/or its subsidiaries or affiliates. All Rights Reserved.

 

3.    TERM AND TERMINATION

Unless otherwise terminated as specified under this Agreement, User’s rights with respect to the Beta Product will terminate upon the earliest of the following to occur: (a) the initial release by Company of a production version of the Beta Product; (b) the Company’s determination, in its sole discretion, to discontinue the Beta Test; and (c) User ceases to be a duly-licensed user of MedDRA. In addition to the foregoing, either Party may terminate this Agreement at any time for any reason or no reason by providing the other Party advance written notice thereof. Upon any expiration or termination of this Agreement, the rights and licenses granted to User under this Agreement shall immediately terminate, and User will immediately cease using, and, if applicable, will return to Company (or, at Company’s request, destroy), the Platform, the Documentation, and any item or thing in User’s possession or control that are proprietary to Company or contain Company Confidential Information. The rights and obligations of the parties set forth in Sections 2(b) – 2(f) and Sections 4 – 8 shall survive termination or expiration of this Agreement for any reason.

 

4.    CONFIDENTIALITY

For purposes of this Agreement, “Confidential Information” shall mean and include any and all confidential, proprietary, sensitive or other information of the Company, howsoever and whensoever obtained by User, whether or not protected or protectable under intellectual property, trade secret or other applicable laws, and whether or not labeled as such, including, without limitation: information relating to Company’s or any of its affiliates’ financial condition and projections; business, marketing or strategic plans; customer lists; price lists; databases; trade secrets; product prototypes; formulas; business strategies and methodologies, technologies, processes, know-how, procedures, the Beta Product and any Updates (including any and all source code), techniques, specifications, revenue models, manuals, confidential reports, and other similar proprietary information relating to Company’s products (including, without limitation, the Beta Product) and/or business operations; and all reports, analyses, compilations, memoranda, notes, studies or other documents or records or electronic media prepared by User that contain or otherwise reflect or are generated from any such information, other than information which User can demonstrate through clear and convincing evidence: (a) was already known to User, other than under an obligation of confidentiality, at the time of disclosure; (b) was generally available in the public domain at the time of disclosure to User; (c) became generally available in the public domain after disclosure other than through any act or omission by User; (d) was subsequently rightfully disclosed to User by a third party who was not under a duty or obligation of confidentiality with respect thereto; or (e) was independently developed by User without use of or reference to any information or materials disclosed by Company. User shall not, and shall ensure that its affiliates and their respective officers, directors, employees, members, managers, agents and representatives do not, (x) use the Confidential Information for any purpose other than the Permitted Use, (y) disclose, copy, reproduce, reveal, publish or disseminate in any manner whatsoever any Confidential Information, or give access thereto, to any individual or entity other than its representatives who are actively and directly participating in the Permitted Use and who have been advised by User of, and have been directed and have agreed to comply with, the terms and conditions of this Agreement, or (z) create any derivative works based on the Confidential Information or reverse engineer, decompile or disassemble any of such Confidential Information. For the avoidance of doubt, in no event shall User use the Beta Product or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service or in any way in connection with User’s efforts to comply with the requirements of any governmental or regulatory body. Without limiting the foregoing, User shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of such Confidential Information.

 

5.    LIMITATION OF LIABILITY

IT IS UNDERSTOOD THAT THE BETA PRODUCT IS PROVIDED WITHOUT CHARGE FOR LIMITED TESTING AND FEEDBACK PURPOSES. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY AND ITS PAST, PRESENT AND FUTURE AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE “COMPANY PARTIES”) SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY PERSON CLAIMING BY THROUGH OR UNDER CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT. IN THE EVENT THAT THE FOREGOING SENTENCE WOULD NOT BE ENFORCEABLE UNDER APPLICABLE LAW, THEN THE TOTAL LIABILITY OF THE COMPANY PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100). IN NO EVENT SHALL ANY COMPANY PARTY HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF A COMPANY PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

 

6.    WARRANTY DISCLAIMER

IT IS UNDERSTOOD THAT THE BETA PRODUCT, THE ASSOCIATED DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR LIMITED TESTING AND FEEDBACK ONLY. THE BETA PRODUCT, THE ASSOCIATED DOCUMENTATION, AND ANY UPDATES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ALL COMPANY PARTIES SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, THE COMPANY PARTIES DO NOT MAKE, AND SPECIFICALLY DISCLAIM, ANY WARRANTY, EXPRESS OR IMPLIED, THAT THE BETA PRODUCT WILL BE AVAILABLE FOR USE AT ANY PARTICULAR TIME OR FOR ANY PARTICULAR DURATION OR THAT ACCESS AND USAGE SPEEDS WILL BE CONSISTENT AND/OR NON-DISCRIMINATORY, IT BEING UNDERSTOOD AND AGREED THAT COMPANY MAY ADJUST ACCESS SPEEDS AMONG DIFFERENT USERS IN COMPANY’S SOLE AND EXCLUSIVE DISCRETION. User acknowledges that Company has not publicly announced the availability of the Beta Product, that Company has not promised or guaranteed to User that such Beta Product will be announced or made available to anyone in the future, that Company has no express or implied obligation to User to announce or introduce the Beta Product, and that Company may not introduce a product similar or compatible with the Beta Product. Accordingly, User acknowledges that any research or development that it performs regarding the Beta Product or any product associated with the Beta Product is done entirely at its own risk. Specifically, the Beta Product may contain features, functionality or modules that will not be included in the final production version of the Beta Product, if released, or that will be marketed separately for additional fees.

 

7.    USER’S DUTY TO INDEMNIFY

User and its affiliated entities shall indemnify, defend and save the Company Parties harmless from and against any and all claims, liabilities, damages, payments, obligations, losses, costs, and expenses (including reasonable attorneys’ fees and costs) incurred or suffered by any of them arising out of or resulting from, directly or indirectly, (a) any breach of this Agreement by User, (b) any inaccuracy or breach of any representation or warranty made by User hereunder, and (c) any use of the Beta Product other than the Permitted Use.

 

8.    OTHER PROVISIONS

(a)    Governing Law. This Agreement, and all disputes arising out of or related thereto, shall be governed by and construed under the laws of the State of Delaware without reference to conflict of laws principles. All such disputes shall be subject to the exclusive jurisdiction of the state and federal courts located in the State of Wisconsin, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.

(b)    Assignment. User shall not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise, without the prior written consent of Company. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

(c)    Export Regulations. User understands that Company is subject to regulation by U.S. and foreign governments and agencies, which prohibit export or diversion of certain technical products and information to certain countries and individuals. User warrants that it will comply in all respects with all export and re-export restrictions applicable to the technology and documentation provided hereunder.

(d)    Modification. This is the entire agreement between the parties relating to the subject matter hereof and all other terms are rejected. No waiver or modification of any provision of this Agreement shall be valid unless in writing signed by the Party against whom enforcement of such waiver or modification is sought. Notwithstanding the foregoing, Company may amend the terms and conditions of this Agreement or any other documents and policies referenced herein at any time, including, without limitation, by posting such revised terms on its website (terminologix.com) or the location of such other document or policy. Such amended terms and conditions shall be binding on User on the effective date of such change and shall supersede any prior version (including this Agreement) which may have accompanied the Beta Product itself. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any other term or breach hereof. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect unaffected thereby.

 

9.    PRIVACY NOTICE

A current copy of the Company’s Privacy Notice (the “Notice”) applicable to the Platform may be found on the Company’s website at terminologix.com/about#privacy-notice. For the avoidance of doubt, the Company makes no representation or warranty (express or implied), covenant or agreement with respect to the Notice, and hereby expressly disclaims all of the foregoing. The Company shall have no liability with respect to the Notice except in the case of the Company’s fraud or gross negligence, in which case the Company’s liability with respect to the Notice shall be limited as set forth in this Agreement.