Project Data Sphere, LLC, a Delaware non-profit, limited liability company ("Project Data Sphere"), manages an online platform that includes a database (the "Database") containing data ("Data") from completed studies in the field of cancer research, social media tools, analytical tools and other technology through which the foregoing are made available for your access and use (collectively, the "Platform"). Certain research driven entities have sponsored or conducted studies ("Data Providers") and have agreed to share Data with Project Data Sphere to allow for the creation of the Database and to facilitate and encourage secondary research in the scientific community for the public good. Because Project Data Sphere and the Data Providers share the goal that all research using the Platform under this Agreement will be open research, you are encouraged to publish and present the results of your research using the Data, and you must agree to certain restrictions on your rights to seek and enforce patent protection for the results of your research using the Data.
Access to the Platform will be provided to bona fide researchers who submit a completed online application and agree to the terms, covenants and conditions in this Agreement, upon receiving access authorization from Project Data Sphere (each, including you, an "Authorized User"). For purposes of this Agreement, the term "research" means "one or more systematic investigations, each including research development, testing and evaluation, and designed to develop or contribute to generalizable knowledge."
You and Project Data Sphere are the parties to this Agreement; however, you acknowledge and agree that each licensor of technology or Data to Project Data Sphere, Project Data Sphere's hosting Platform provider, and each affiliate of Project Data Sphere or of a licensor of technology or Data, is a third-party beneficiary of this Agreement with the legal right to enforce in its own name the terms, covenants and conditions of this Agreement.
* For example, you may be notified at the time of your request for particular Data that such Data is not downloadable, in which event you are entitled to access such data within the Platform, but you will not be able to download such Data from the Platform to your personal computer or to an external storage device. You are expressly prohibited from copying (manually, electronically or otherwise) any Data that is identified to you as non-downloadable.
* In addition, you may be notified at the time of your request for particular Data that such Data (including but not necessarily limited to data made available through the Platform by the National Cancer Institute) is subject to additional terms, covenants and conditions ("Supplemental Terms") to which you are required to agree as a condition of your receiving access to such Data. Upon your agreement to Supplemental Terms for particular Data, you may access and use such Data solely in accordance with the terms, covenants and conditions of this Agreement and the applicable Supplemental Terms. If you aggregate Data that is not subject to any Supplemental Terms with any Data that is subject to any Supplemental Terms, your use of the resulting aggregated Data will be subject to the terms, covenants and conditions of this Agreement and the applicable Supplemental Terms.
Neither the license granted herein nor your use of any Data entitles you to assistance from any personnel associated with the clinical trial(s) from which the Data was derived.
These usage rules (the "Rules") cover your access to and use of the Platform. You must adhere to and abide by the Rules and other guidelines provided to you by Project Data Sphere from time to time. Project Data Sphere reserves the right to terminate or limit use of the Platform without notice in the event of any unauthorized access to or use of the Platform.
* use the Platform for any purpose other than the Purpose (as identified in Section III(A) of this Agreement); or
* upload to the Platform or otherwise make available to Project Data Sphere any credit or debit card number, personal identification number, password or other electronic identification number that you use for payment or to access personal or financial information or resources; or
* use the Platform to misuse or abuse any third-party property (including, without limitation, software, equipment, networks, and network devices); or
* reverse engineer, reverse assemble or decompile any software that you may access through the Platform or in any way attempt to recreate the source code for any such software, except and only to the extent that applicable laws specifically prohibit such restriction; or
* make any unauthorized use of or interfere with any property of SAS Institute, Inc. ("SAS"), which hosts the Platform for Project Data Sphere, or of any customer of SAS; or
* delete, obscure or modify any copyright notice or proprietary rights notice of Project Data Sphere or any of its licensors that is displayed through the Platform; or
* engage in any activity that is in violation of the law or aids or assists any criminal activity in connection with your access to or use of the Platform; or
* impair or disrupt any connections to the Platform; or
* upload to the Platform any software or application(s).
* to send unsolicited marketing material or unsolicited communications in any form (commonly referred to as "SPAM"); or
* to engage in any activities or actions that infringe or misappropriate the intellectual property rights of others, including but not limited to, using third party copyrighted materials without appropriate permission, using third party trademarks without appropriate permission or attribution, or using or distributing third party information protected as trade secret information in violation of a duty of confidentiality; or
* to engage in any activities or actions that would violate the personal privacy rights of others; or
* to send or transmit harassing, offensive, abusive, libelous, or obscene materials or assist in any similar related activities; or
* to intentionally omit, delete, forge, or misrepresent transmission information, including headers, return mailing, and Internet protocol addresses; or
* to engage in any activities or actions intended to misuse or abuse other users' passwords or other confidential information; or
* for any illegal purpose, in violation of any applicable laws or regulations, or in violation of the rules of any other Platform provider engaged by or for your benefit; or
* to endorse, advertise, or promote any political cause or candidate, or without the prior written consent of Project Data Sphere, which Project Data Sphere may grant or withhold in its sole discretion, to endorse, advertise, or promote a product or a Platform, or to advertise or solicit employment; or
* to assist or permit any person to engage in any of the prohibited activities described above.
Project Data Sphere collects additional demographic information from an Authorized User who wishes to use the Community Tools, including a display name and, optionally, a photo image. Display names and full names of such Authorized Users will be available to all Authorized Users who use the Community Tools, and each such Authorized User has the option to make his or her email address and/or optional photo available to other Authorized Users who use the Community Tools. You might receive communications from other Authorized Users. Although Project Data Sphere attempts to limit access to the Community Tools to only Authorized Users, please be aware that no security measures are perfect or impenetrable. Additionally, Project Data Sphere cannot control the actions of others with whom you may choose to share your User Contributions or your personal information. Project Data Sphere shall have no obligation to monitor Authorized Users' or other persons' use of any User Contribution or personal information that an Authorized User shares.
* review any User Contribution;
* remove or refuse to post all or any portion of any User Contribution for any or no reason in its sole discretion;
* take any action with respect to any User Contribution that it deems necessary or appropriate in its sole discretion, including if it believes that such User Contribution fails to meet the requirements set forth in this Agreement or in any applicable Supplemental Terms, threatens the personal safety of Authorized Users or the public, or could create liability for Project Data Sphere; and
* terminate or suspend your access to all or part of the Community Tools for any or no reason.
You acknowledge that each Data Provider retains ownership of, and all intellectual property rights in, the Data it has made available in the Database and that you acquire no rights in the Data other than those limited rights set forth in this Agreement. You do not obtain any rights under any patents, copyrights or other intellectual property rights of any Data Provider ? whether implicitly, by estoppel or any other legal theory ? other than the limited license to use the Data as expressly permitted by this Agreement and subject to all terms, covenants and conditions set forth herein and in any applicable Supplemental Terms.
You retain your intellectual property rights to any User Contributions you post on or through the Community Tools. By posting User Contributions on or through the Community Tools, you grant to Project Data Sphere and to all Authorized Users to whom you make the User Contributions available a worldwide, non-exclusive, transferable, sub-licensable, royalty-free, perpetual and irrevocable license to use, copy, reproduce, process, adapt, modify, publish, transmit, perform, display and distribute such User Contributions in any and all media and distribution methods (now known or hereafter developed) for the Purpose. You hereby waive your moral rights in any User Contributions.
You acknowledge that Data Providers have elected to make their Data, and Authorized Users have elected to make their User Contributions, available in the Platform to foster open research for the public good. Accordingly, in consideration of your being given access to the Data and User Contributions, you covenant and agree that:
For any invention that you conceive or first reduce to practice, alone or with others, pursuant to research using any Data that is not publicly available, you agree to grant to the pharmaceutical company sponsor of the clinical trial from which the Data was derived, or in the case of Data from a clinical trial that was sponsored by the National Cancer Institute or by a National Clinical Trial Network cooperative group, to any pharmaceutical company collaborator (in either case, the "Collaborator"):
* a paid-up, nonexclusive, nontransferable, royalty-free, world-wide license to such invention for research purposes only; and
* a nonexclusive, royalty-free, worldwide license to (a) disclose such invention to a regulatory authority when seeking marketing authorization of the experimental therapy for which the clinical trial was conducted (the "Agent"), and (b) disclose such invention on a product insert or other promotional material regarding the Agent after the Collaborator has obtained marketing authorization from a regulatory authority.
Notwithstanding the above, you are under no obligation to file or maintain patent prosecution for any such invention.
The foregoing are the only restrictions on prosecution and enforcement of patents on inventions arising out of your use of the Data and User Contributions.
The words "Project Data Sphere" and the following Project Data Sphere logo are registered trademarks of Project Data Sphere.
You are encouraged to publish any results of your research in any peer-reviewed publication, and to report the results of your research in any presentation, provided that your publication or presentation does not disclose any Data or User Contributions other than Data or User Contributions that are reasonably necessary to publish or report your research results."
You acknowledge and agree that the Data is nonpublic information that is proprietary to the Data Providers and has great value to their business. Subject to the limited rights to publish, and present the results of research you conduct using the Data, you covenant and agree that you shall: (i) maintain the Data in strict confidence: (ii) not, directly or indirectly, disclose, or permit the disclosure of, the Data other than in accordance with Section III.B(2), Article VII or this Article VIII; and (iii) not use the Data for any purpose other than the Purpose. The foregoing covenant shall not apply to any portion of the Data that you can demonstrate: (a) was known to you, without restriction on disclosure, prior to your retrieving it from the Database; (b) was lawfully obtained by you from a third party under no obligation of confidentiality with respect to such portion of the Data; or (c) was or has become publicly available other than as a result of a violation of this Agreement or another obligation of confidentiality. In addition, you are permitted to disclose Data if so required by law, regulation, rule, act, or order of any government authority or agency, provided that you give Project Data Sphere sufficient advance written notice to permit Project Data Sphere to notify the applicable Data Providers so that they may seek a protective order or other similar order with respect to Data, and that thereafter you disclose only the minimum Data that you, in your reasonable judgment, believe is required to be disclosed in order to comply.
You hereby warrant that:
NEITHER PROJECT DATA SPHERE NOR ANY OF ITS LICENSORS OF TECHNOLOGY OR DATA, NOR ITS HOSTING PLATFORM PROVIDER MAKES ANY WARRANTY, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE DATABASE, THE DATA, THE COMMUNITY TOOLS, THE USER CONTRIBUTIONS OR THE PLATFORM. PROJECT DATA SPHERE (ON BEHALF OF ITSELF, EACH LICENSOR OF TECHNOLOGY OR DATA AND ITS HOSTING PLATFORM PROVIDER) SPECIFICALLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE DATA, THE COMMUNITY TOOLS, THE USER CONTRIBUTIONS AND THE PLATFORM, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING AS A RESULT OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. PROJECT DATA SPHERE, ITS LICENSORS OF TECHNOLOGY OR DATA AND ITS HOSTING PLATFORM PROVIDER DO NOT GUARANTEE THAT THE DATA, THE COMMUNITY TOOLS, THE USER CONTRIBUTIONS OR THE PLATFORM WILL MEET YOUR REQUIREMENTS OR NEEDS OR THAT THE DATA OR THE USER CONTRIBUTIONS ARE ACCURATE, CURRENT, OR COMPLETE. THE DATA, THE COMMUNITY TOOLS, THE USER CONTRIBUTIONS AND THE PLATFORM ARE PROVIDED "AS IS," AND YOUR USE OF THE DATA, THE COMMUNITY TOOLS, THE USER CONTRIBUTIONS AND THE PLATFORM IS AT YOUR SOLE RISK.
This Agreement becomes effective on the date that you first receive access to the Platform from Project Data Sphere ("Effective Date") and shall expire one (1) year after such date, unless sooner terminated in accordance with Section X(B)(i) or (ii). You may extend the term of this Agreement for additional one (1) year periods without interruption of your access to the Platform by completing and submitting a new online application and agreeing to the terms, covenants and conditions in this Agreement within ten (10) business days before the expiration date of the initial term or any renewal term of this Agreement.
Upon expiration of this Agreement or upon its termination for any reason, your access to the Platform will immediately terminate. If this Agreement has been terminated by Project Data Sphere in accordance with Section X(B)(ii), the Data license grant in Section III(A) and licenses granted by other Authorized Users to their User Contributions shall likewise terminate immediately, and you shall promptly destroy all copies of the Data and User Contributions then in your possession and certify to Project Data Sphere in writing that you have complied with this obligation.
Articles IV- IX, Section X(C), and Articles XI- XVIII shall survive termination or expiration of this Agreement.
You acknowledge that each Data Provider has the right to direct Project Data Sphere to remove all or any portion of the Data that it has provided for the Database and that Project Data Sphere shall remove a Data Provider's Data from the Database promptly upon receipt of any such direction from a Data Provider. You further acknowledge that each Authorized User may remove any User Contribution that he or she has posted to the Platform during the time when such Authorized User has access to the component of the Community Tools to which the User Contribution was posted. In the event that you have accessed any Data or User Contribution prior to its removal from the Platform, you may continue to use such Data or User Contribution in accordance with this Agreement unless and until:
You acknowledge and agree that: (i) the restrictions contained in Sections III(B) and III(C), and in Articles IV, VI, VII and VIII are reasonable and necessary to protect the legitimate business interests of Project Data Sphere, its licensors of technology and Data and its hosting Platform provider; and (ii) any violation of these restrictions would cause irreparable injury for which remedies at law would be inadequate. Accordingly, Project Data Sphere, its licensors of technology and Data and its hosting Platform provider shall each be entitled to seek immediate injunctive relief and any other equitable relief as a result of any violation hereunder without posting a bond or other security; provided, however that if the posting of a bond is a prerequisite to obtaining injunctive relief, then a bond in the amount of $1,000 shall be sufficient. Notwithstanding the foregoing, this paragraph shall not in any way limit the remedies at law or in equity otherwise available to Project Data Sphere, any Data Provider or the hosting Platform provider.
You shall defend, indemnify and hold harmless Project Data Sphere, each of its licensors of technology or Data, its hosting service provider, and their respective members, affiliates, officers, directors, agents, employees, and subcontractors (collectively, the "Indemnified Parties") from and against any and all damages, costs, losses and expenses, including reasonable attorneys' fees, that they incur in connection with any claim, action, or proceeding arising out of or in connection with your use of the Platform, with the exception of any claim, action, or proceeding arising out of an allegation that the licensor of technology or Data, or the hosting service provider, as applicable, did not have the right or authority to make any Data or technology available through the Platform.
YOU ACKNOWLEDGE THAT YOU HAVE BEEN GIVEN ACCESS TO THE DATA, USER CONTRIBUTIONS AND THE PLATFORM WITHOUT CHARGE. ACCORDINGLY, EXCEPT FOR CLAIMS ARISING OUT OF ALLEGATIONS THAT PROJECT DATA SPHERE, ANY OF ITS LICENSORS OF TECHNOLOGY OR DATA OR ITS HOSTING PLATFORM PROVIDER DID NOT HAVE THE RIGHT TO MAKE THE PLATFORM, ANY TECHNOLOGY OR ANY DATA, ACCESSIBLE THROUGH THE PLATFORM AVAILABLE TO YOU IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND ANY APPLICABLE SUPPLEMENTAL TERMS, IN NO EVENT SHALL PROJECT DATA SPHERE, ANY OF ITS LICENSORS OF TECHNOLOGY OR DATA OR ITS HOSTING PLATFORM PROVIDER BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF BUSINESS, OR LOSS OF OPPORTUNITY. PROJECT DATA SPHERE'S, ITS LICENSORS' OF TECHNOLOGY OR DATA AND ITS HOSTING PLATFORM PROVIDER'S MAXIMUM AGGREGATE LIABILITY TO YOU FOR CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED TWENTY FIVE THOUSAND DOLLARS ($25,000).
This Agreement shall be deemed to have been executed and delivered in the State of Delaware, and shall be governed and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles.
All notices or other communications must be provided for in writing by certified mail, postage prepaid, and shall be deemed duly given upon the date of receipt as recorded by the U.S. Postal Platform.
If to Project Data Sphere:
Project Data Sphere, LLC
940 NW Cary Parkway
Cary, NC 27513
Attn: Nicole Williford Hayes
If to you, in the name, and at the mailing address, e-mail address, and telephone number set forth in your application for access to the Platform.
Except for the attribution required by Article VII, neither party will use any trademark, service mark, trade name, or other name or logo of the other party or the name of the other party's employer or any of the other party's employees for promotional or advertising purposes, nor issue any public statement concerning this Agreement, without permission from the other party. However, Project Data Sphere reserves the right to identify you and your employer in listings maintained by Project Data Sphere identifying researchers to whom it has given access to the Data (including, without limitation, on listings posted on any Project Data Sphere web site).