STUDIES ARE FOR SUBSCRIBER’S INTERNAL BUSINESS PURPOSES ONLY.
Auditory Insight, LLC (“Auditory Insight”) grants to Subscriber a limited, non-exclusive, non-sublicensable, non-transferable license to use, print and share the purchased study or studies (each, a “Study”) solely for Subscriber’s internal business purposes. Subscriber refers to the company, organization or person purchasing a Study from Auditory Insight. U.S. License is limited to U.S. personnel only. Global License may be used by personnel globally.
Subscriber acknowledges that Auditory Insight expends substantial time, effort and money to develop, enhance and maintain the Studies, and that the Studies constitute the confidential and proprietary information of Auditory Insight and its valuable intellectual property. Subscriber will maintain the Studies as strictly confidential, and will not disclose, publish, distribute, sell, reproduce or otherwise disseminate the Studies to any third party, or use the Studies for any purpose not expressly permitted hereunder. Further, Subscriber may not reverse engineer any part of a Study or use a Study to improve the quality of any data or contributed by Subscriber to any third party. Copies or reproductions of any part of a Study must include Auditory Insight’s copyright and confidentiality notices appearing on such Study.
Subscriber may not share the Studies, or any part thereof, in either printed or electronic format outside of Subscriber’s organization, including, without limitation, via email, Internet posting or other system, without Auditory Insight’s prior written permission, which may be withheld for any or no reason. Subscriber shall take all steps reasonably necessary to insure understanding of, and compliance with, the restrictions under this Agreement, and shall be responsible for any unauthorized use or disclosure of the Studies by any person affiliated with Subscriber.
If Subscriber would like to cite or excerpt the Studies in any manner outside of Subscriber’s organization, including, without limitation, in any regulatory filing or promotional material, permission may be sought by emailing Research@AuditoryInsight.com.
Any permitted excerpt or quote used must be accompanied by appropriate attribution of Auditory Insight as the source, the title and year of the applicable Study, and must include all information necessary to ensure that the information is presented clearly, accurately and fairly.
Without limiting the foregoing, in no event may the Studies be voluntarily disclosed in any legal, arbitration, regulatory or governmental proceeding or filing. Notice of any demand for production of a Study must be promptly provided to Auditory Insight to permit it to contest such disclosure or seek an applicable protective order.
The Studies are licensed, not sold. Auditory Insight owns and retains all rights, title and interest in and to the Studies, including, without limitation, all associated intellectual property and other proprietary rights, and all rights in the Studies not expressly granted to Subscriber herein are reserved by Auditory Insight.
The fees for the Studies (the “Fees”) as well as any applicable sales and use taxes, for each Study are payable in full before access to a Study will be made available to Subscriber.
Within five (5) days after termination, Subscriber shall either return to Auditory Insight or destroy all media upon which the Studies have been provided or copied and on request by Auditory Insight shall certify in writing that, through Subscriber’s reasonable efforts, and to the best of Subscriber’s knowledge, the same have been destroyed or returned. In addition, any copy of the Studies on any computer memory or storage system (including back-up tapes and systems) shall be irretrievably erased.
4. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
Auditory Insight represents and warrants that (i) it has the full and unrestricted right to enter into and perform this Agreement, (ii) the Studies will not infringe any United States patents, copyrights, trademarks or trade secrets and (iii) it has complied with all applicable laws in its preparation and licensed distribution of the Studies. Auditory Insight shall use commercially reasonable efforts to release the Studies at the contemplated times, but shall not be liable for late release or delivery.
EXCEPT AS PROVIDED IN THIS AGREEMENT, AUDITORY INSIGHT MAKES NO REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) WITH RESPECT TO THE STUDIES OR THE DATA CONTAINED THEREIN. AUDITORY INSIGHT WILL USE COMMERCIALLY REASONABLE EFFORTS TO ASSURE THE ACCURACY OF THE STUDIES, BUT IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS THEREIN, PROVIDED ANY SUCH ERROR OR OMISSION IS NOT THE PRODUCT OF AUDITORY INSIGHT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. AUDITORY INSIGHT IS NOT RESPONSIBLE IN ANY WAY FOR SUBSCRIBER’S USE OF THE STUDIES. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 5 BELOW, THE SOLE AND EXCLUSIVE REMEDY OF SUBSCRIBER IN THE EVENT OF A BREACH OF THIS AGREEMENT BY AUDITORY INSIGHT SHALL BE LIMITED TO THE REFUND TO SUBSCRIBER OF THE FEES PAID BY IT. EXCEPT FOR BREACH OF THE CONFIDENTIALITY AND/OR RESTRICTIVE COVENANTS OF SUBSCRIBER IN SECTION 1 ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES.
Auditory Insight shall at its own expense hold harmless and indemnify Subscriber, its agents, subcontractors, affiliates, employees, directors, officers, permitted assigns and successors (the “Subscriber Indemnified Parties”) and defend any action brought against the Subscriber Indemnified Parties based on a claim that the Studies infringe any United States patents, copyrights, trademarks or trade secrets, provided, however, the Subscriber Indemnified Parties must promptly notify Auditory Insight in writing of any such claim and, provided further, Auditory Insight shall have the exclusive right to control such defense. In no event shall Subscriber Indemnified Parties settle any such claim, lawsuit or proceeding without Auditory Insight’s prior written approval. Subscriber Indemnified Parties’ failure to give prompt notice will not affect Auditory Insight’s indemnity obligations unless the late notice has materially prejudiced Auditory Insight’s right of defense.
Subscriber shall at Subscriber’s own expense hold harmless and indemnify Auditory Insight, its agents, subcontractors, affiliates, employees, directors, officers, permitted assigns and successors (“Auditory Insight Indemnified Parties”) and defend any action brought against the Auditory Insight Indemnified Parties or in which the Auditory Insight Indemnified Parties have involuntarily become involved through subpoena or other legal process as a result of Subscriber’s use of the Study; provided, however, the Auditory Insight Indemnified Parties must promptly notify Subscriber in writing of any such claim or proceeding and, provided further, Subscriber shall have the exclusive right to control such defense. The Auditory Insight Indemnified Parties’ failure to give prompt notice will not affect Subscriber’s indemnity obligations unless the late notice has materially prejudiced Subscriber’ right of defense. In no event shall Auditory Insight Indemnified Parties settle any such claim, lawsuit or proceeding without Subscriber’s prior written approval. Subscriber shall reimburse the Auditory Insight Indemnified Parties for reasonable out-of-pocket expenses or costs incurred by them in connection with any lawsuit, arbitration or other proceeding in which any of them has involuntarily become involved through subpoena or other legal process, in either case outside the scope described above, as a result of Subscriber’s use of the Study and in which such Auditory Insight Indemnified Party is not a party and where Subscriber cannot assume the defense or other action on such Auditory Insight Indemnified Party’s behalf. The Auditory Insight Indemnified Parties shall give Subscriber notice of any such proceeding under which such reimbursement will be sought promptly after Auditory Insight has been subpoenaed, etc.
Publicity. Neither party shall use the name, trademarks, service marks, symbols, or logos of the other party without the express prior written consent of the other party.
Injunctive Relief. Subscriber agrees that any breach by it of the provisions of this Agreement herein to protect Auditory Insight’s confidential and proprietary rights and interests will cause irreparable harm and loss to Auditory Insight and Auditory Insight may obtain an injunction to prohibit any such actual or threatened breach by Subscriber or its agents.
Entire Agreement. These terms and conditions together with the applicable order constitutes the entire agreement between the parties.
Force Majeure. Dates or times by which either party is required to perform under this Agreement shall be suspended and/or excused to the extent that the other party is prevented from meeting them by an event of force majeure, including (without limitation) terrorism, commercial impracticability and impossibility.
Taxes. The Subscriber will be liable for any sales, use or other tax payable in respect of this Agreement, whether or not collected by Auditory Insight with payment of the Fees, other than taxes on Auditory Insight’s net income.
Governing Law. This Agreement shall be governed by the laws of the State of Connecticut (without regard to its choice of laws provisions). The sole jurisdiction and venue for any litigation arising out of this Agreement shall be in an appropriate federal or state court located in New Haven County, Connecticut, USA.
Severability. If any provision of this Agreement shall be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted and the balance of the Agreement enforced without such provision.
Assignment. Subscriber may not assign or sublicense, any of its rights, duties or obligations under this Agreement, in whole or in part, to any person or entity without prior written consent of Auditory Insight.
Survival. The provisions of Sections 1, 5 and 6 and the disclaimers and limitations of liability in Section 4 shall survive the expiration or termination of this Agreement.
Notice. All notices, acceptances, rejections and delivery of documents under this Agreement shall be sufficiently given or made if delivered or mailed, postage prepaid, to the respective addresses of the parties, or to such other addresses as any of them by notice to the other party may designate from time to time in such manner to obtain a signed receipt of delivery. Auditory Insight’s address is c/o HealthHavenHub, 195 Church Street, 9th Floor, New Haven, Connecticut 06510.
No Waiver. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
Remedies. The rights and remedies of Auditory Insight set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it in law or in equity.