AHA PREVENT™
LEGAL TERMS AND CONDITIONS
1. Agreement Structure. Any Order executed by the Parties under this Agreement shall be subject to these Legal Terms and Conditions. The Order shall specifically reference this Agreement and set forth the specific license terms, delivery methods, fees, permitted and prohibited uses and any other terms applicable to PREVENT™ provided under such Order. When fully executed by authorized signatories of the Parties, each Order shall be incorporated into, and shall form a part of, this Agreement.
2. Ownership. As between the Parties, AHA and its affiliates own and hold all right, title and interest in and to PREVENT™, including without limitation, all underlying data compilations and information, all materials related to PREVENT™ and all intellectual property derived from PREVENT™, including without limitation, all patents, trademarks, copyrights and trade secrets derived from PREVENT™. Licensee acknowledges AHA’s superior rights and understands that Licensee receives only a limited right and license to use PREVENT™ as set forth in the Order. AHA reserves all other rights.
3. Fees; Taxes.
3.1. Fees. Licensee acknowledges and agrees they are strictly utilizing the PREVENT™ information for Academic purposes. Accordingly, AHA agrees to waive the license fee. In the event there is a change in purpose and/or associated costs arise, Licensee shall pay AHA the fees for PREVENT™ (“Fees”) as set forth in the Order. Unless provided otherwise in the applicable Order, AHA shall invoice Licensee for all Fees incurred by Licensee at the end of each AHA billing cycle, and Licensee shall pay AHA the Fees within 30 days of the date of AHA’s invoice. Licensee shall be responsible for, and shall pay the Fees for, all Solution accessed using usernames and passwords issued to Licensee, whether or not authorized by Licensee. If full payment is not made in compliance with this Section 3.1 or the applicable Order, Licensee may be assessed a late charge equal to 1 ½ percent of the unpaid amount per month, or the maximum limit permitted by law, whichever is less. If Licensee becomes 10 or more days past due and fails to pay all past due fees within 10 days of AHA’s written notice of such delinquency, AHA may suspend access or delivery of or disable PREVENT™ until all past due charges and any related interest are paid, or terminate the Agreement. During any period for which access or delivery of PREVENT™ is suspended, Licensee shall continue to incur and pay any minimum fees due. Licensee shall pay AHA all costs of collection of past due amounts owed to AHA hereunder, including without limitation, attorney fees, collection agency fees and court costs.
3.2. Taxes. Fees are exclusive of sales, use, excise, ad valorem, personal property, and other taxes. When AHA has the legal obligation to collect such taxes, the appropriate amount shall be added to AHA’s invoice and paid by Licensee, unless Licensee provides AHA with a valid tax exemption certificate prior to issuance of the invoice. Such certificate must be in a form authorized by the appropriate taxing authority.
4. Trademarks. “American Heart Association,” “PREVENT™”, the AHA and PREVENT™ logos, and all AHA product names are trademarks or service marks of AHA or its affiliates (collectively, the “Marks”). Except as may be set forth in the Order, no right or license to use the Marks is granted under this Agreement, except that Licensee shall have the limited right to use the Marks solely as they appear in PREVENT™. Licensee shall not use the Marks in any advertising or promotional material nor shall Licensee disclose AHA as a data source to any third party, except for such disclosures required by federal, state or local government regulations, or as otherwise may be prior authorized in writing by AHA. Licensee shall not remove, alter or obscure any Marks or proprietary notices contained in PREVENT™ or other materials provided by AHA.
5. Compliance with Law. Licensee represents and warrants that it has all rights necessary to provide any and all data, documentation and other materials that it may make available to AHA or input in PREVENT™ and that AHA, and/or its Solution, may use, copy and otherwise manipulate such data, documentation and other materials as necessary for PREVENT™ to function properly. Licensee shall use PREVENT™ in compliance with all applicable laws, statutes, ordinances and regulations. Licensee shall obtain any necessary licenses, certificates, permits, approvals or other authorizations required by all laws, statutes, ordinances and regulations applicable to Licensee’s use of PREVENT™.
6. Confidentiality.
6.1. Confidential Information. In the course of this Agreement, each Party may obtain nonpublic information from the other Party that is confidential and proprietary in nature (“Confidential Information”). Such Confidential Information includes, but is not limited to, the terms of this Agreement, information relating to PREVENT™, information regarding a Party’s current, future and proposed products and Solution, product designs, plans and roadmaps, prices and costs, trade secrets, patents, patent applications, development plans, ideas, samples, media, techniques, works of authorship, models, inventions, know-how, processes, algorithms, software schematics, code and source documents, data, formulas, financial information, procurement requirements, Licensee lists, suppliers, investors, employees, business and contractual relationships, sales and marketing plans, nonpublic personal information of consumers, whether disclosed before or after the Effective Date, and any other information the receiving Party knows or reasonably ought to know is confidential, proprietary or trade secret information of the disclosing Party. Confidential Information also includes any and all nonpublic information provided to the disclosing Party by third parties.
6.2. Obligations. The Parties agree that at all times, and notwithstanding the termination or expiration of this Agreement, they shall hold all Confidential Information of the other Party in strict confidence and trust, and shall not use, reproduce or disclose the Confidential Information of the other Party to any person or entity except as specifically permitted in this Agreement. Each Party may disclose Confidential Information of the other Party only to those of its employees, contractors, consultants and advisors who have previously agreed to be bound by terms and conditions at least as restrictive as those set forth in this Agreement and who have a need to know such information.
6.3. Exclusions to Confidentiality. The restrictions on use and disclosure of Confidential Information set forth in Section 6.2 shall not apply to the extent the Confidential Information: (i) is or becomes generally available to the public through no fault of the receiving Party (or anyone acting on its behalf); (ii) was previously rightfully known to the receiving Party free of any obligation to keep it confidential; (iii) is subsequently disclosed to the receiving Party by a third party who may rightfully transfer and disclose the information without restriction and free of any obligation to keep it confidential; (iv) is independently developed by the receiving Party or a third party without reference or access to the disclosing Party’s Confidential Information; or (v) is otherwise agreed upon by the Parties not to be subject to the restrictions set forth in Section 6.2. PREVENT™ and any of AHA’s databases used in deriving PREVENT™ are proprietary, copyrighted and trade secrets of AHA and, for the avoidance of doubt, are not excluded under this Section 6.3 from the restrictions on use and disclosure set forth in Section 6.2.
6.4. Disclosures Required by Law. The receiving Party may disclose Confidential Information if required to do so as a matter of law, regulation or court order, provided that: (i) the receiving Party shall use all reasonable efforts to provide the disclosing Party with at least 10 days’ prior notice of such disclosure, (ii) the receiving Party shall disclose only that portion of the Confidential Information that is legally required to be furnished, and (iii) the receiving Party shall use reasonable efforts to seek from the party to which the information must be disclosed confidential treatment of the disclosed Confidential Information.
7. Indemnification.
7.1. Licensee shall indemnify, defend and hold AHA harmless from and against all claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from a claim, suit or proceeding brought against AHA by a third party arising out of or related to the use of PREVENT™ by the Licensee, Licensee’s provision of or AHA’s use of any data, documentation or other materials provided by Licensee under this Agreement and/or or Licensee’s breach of this Agreement.
8. Term; Termination.
8.1. Term. This Agreement shall commence on the Effective Date and continue until the expiration or termination of the Orders. The term of an Order is as specified in such Order.
8.2. Termination for Cause. If either Party breaches any provision of this Agreement, including a provision of any Order, the non-breaching Party may, upon providing written notice of such breach, terminate this Agreement in its entirety or the specific Order that was breached, if the breach is not cured within 30 days following such notice, unless a shorter cure period is otherwise set forth in the applicable Order. Notwithstanding the foregoing, AHA may immediately terminate this Agreement upon written notice in the event Licensee breaches the terms of the License.
8.3. Termination for Insolvency. Either Party may immediately terminate this Agreement upon written notice to the other Party in the event the other Party: (i) becomes insolvent; (ii) files, submits, initiates, agrees to or is subject to any bankruptcy petition, conservatorship, request or petition for appointment of a receiver, or demand or application for voluntary or involuntary dissolution; or (iii) makes a general assignment for the benefit of its creditors.
8.4. Effects of Termination. Upon expiration or termination of this Agreement or an Order, all license rights granted by AHA to Licensee pursuant to the Agreement or such Order shall terminate and Licensee shall pay AHA in full for all Fees due. Licensee acknowledges that minimum Fees, annual Fees, flat Fees and the like are based on a minimum term. If the Agreement or any Order is terminated due to Licensee’s breach, Licensee shall pay AHA the full amount of any outstanding minimum Fees, annual Fees, flat Fees or the like for the remainder of the then-current term.
8.5. Return or Destruction of Materials. Within 15 days of expiration or termination of this Agreement or an Order, Licensee shall destroy, or if requested by AHA, return PREVENT™ and AHA Confidential Information (including all copies of the same) (collectively, the “Materials”) and certify in writing signed by an officer of Licensee that all Materials have been returned or destroyed. If such Materials are not returned or destroyed in accordance with the foregoing, Licensee shall: (i) provide AHA or its designee access to Licensee’s premises for the retrieval of all such Materials, and pay all costs incurred by AHA to retrieve such Materials; and (ii) pay AHA the Fees ordinarily and reasonably charged by AHA for PREVENT™ until such time as such Materials are destroyed by Licensee or retrieved by AHA.
9. Disclaimer. PREVENT™IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANT-ABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THAT PURPOSE IS KNOWN TO AHA), OR ARISING FROM A COURSE OF DEALING, USAGE, TRADE PRACTICE. AHA DOES NOT REPRESENT OR WARRANT THAT PREVENT™IS COMPLETE OR FREE FROM ERROR OR WILL BE AVAILABLE 24 HOURS PER DAY, 7 DAYS PER WEEK, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN PREVENT™, WHETHER SUCH ERRORS OR OMISSIONS RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE.
10. Limitation of Liability. AHA’S TOTAL LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY UNDER OR RELATED TO ANY ORDER UNDER THIS AGREEMENT IS LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE AMOUNT PAID BY LICENSEE TO AHA UNDER SUCH ORDER DURING THE 6 MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH CLAIM. THIS LIMIT IS CUMULATIVE AND ALL PAYMENTS UNDER THIS AGREEMENT ARE AGGREGATED TO CALCULATE SATISFACTION OF THE LIMIT. THE EXISTENCE OF MULTIPLE CLAIMS DOES NOT ENLARGE THE LIMIT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AHA BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS OR REVENUE, OR LOST OR DAMAGED DATA, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF AHA IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
11. GENERAL PROVISIONS.
11.1. Relationship of Parties. The Parties acknowledge that this is a business relationship based on the express provisions of this Agreement and no partnership, joint venture, agency, fiduciary or employment relationship is intended or created by this Agreement. Neither Party is the legal representative or agent of, nor has the power or right to obligate, direct or supervise the daily affairs of the other Party, and neither Party shall act, represent or hold itself out as such. The rights, duties, obligations and liabilities of the Parties shall be several and not joint, each Party being individually responsible only for its obligations as set forth in this Agreement.
11.2. Notices. All notices required under this Agreement shall be sent to the addresses on the signature page of this Agreement to the attention of the signatories, with a copy to the Legal Department of the Party. All notices under this Agreement shall be deemed given: (i) when delivered by hand; (ii) 1 day after being sent by commercial overnight courier with written verification of receipt; or (iii) 5 days after being sent by registered or certified mail, return receipt requested, postage prepaid. Either Party may from time to time change its address for notification purposes by giving the other Party written notice of the new address and the date upon which it will become effective. Notwithstanding the foregoing, notices regarding changes in pricing, policies or programs may be communicated by e-mail.
11.3. Assignment. Licensee shall not assign or transfer this Agreement or any rights or obligations under this Agreement without AHA’s prior written consent. A change in control constitutes an assignment under this Agreement. Any unauthorized assignment or transfer shall be void and constitutes ground for immediate termination of this Agreement by AHA. This Agreement binds and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
11.4. Severability. If any provision, or part thereof, of this Agreement becomes or is declared invalid, illegal or unenforceable in any respect under any law, such provision, or part thereof, shall be null and void, and deemed deleted from this Agreement. The validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired.
11.5. No Waiver. Any waiver is only valid to the extent expressly set forth in writing. No waiver by either Party of any right under this Agreement shall constitute a subsequent or continuing waiver of such right or any other rights under this Agreement.
11.6. Injunction. Licensee acknowledges that PREVENT™ is a valuable commercial product, the development of which involved the expenditure of substantial time and money. Any violation of the licenses granted hereunder, confidentiality obligations or infringement or misappropriation of AHA’s intellectual property rights shall be deemed a material breach of the Agreement, for zwhich AHA may not have adequate remedy in money or damages, and AHA shall be entitled to injunctive relief, in addition to (and not in lieu of) such further relief as may be granted by a court of competent jurisdiction, without the requirement of posting a bond or providing an undertaking.
11.7. Force Majeure. Except for Licensee’s obligation to pay the Fees for Solution provided, neither Party shall be liable for any failure or delay in its performance due to circumstances beyond its reasonable control (including, but not limited to, act of terrorism, war (declared or not declared), sabotage, insurrection, riot, act of civil disobedience, act of any government, accident, fire, explosion, flood, storm, earthquake, volcanic eruption, nuclear event, any act of God, labor disputes, failure or delay of shippers, or unavailability of components or equipment); provided that it notifies the other Party as soon as practicable and uses commercially reasonable efforts to resume performance.
11.8. Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Texas, without giving effect to its principles of conflicts of law. Any litigation arising out of this Agreement shall be brought by either Party in a court of competent jurisdiction located in Dallas County, Texas, and each Party hereby waives any defenses it may have before such courts based on a lack of personal jurisdiction or inconvenient forum. Each Party hereby expressly and irrevocably waives the right to a jury trial. The prevailing party shall be awarded its reasonable attorneys’ fees and costs in any proceeding arising out of or related to this Agreement.
11.9. No Third Party Beneficiaries. AHA and Licensee agree that this Agreement, including each Addendum and each Order, are for the benefit of the entities executing such document(s) and are not intended to confer any rights or benefits on any third party, including any employee or client of either entity executing such document(s), and that there are no third party beneficiaries as to this Agreement or any part or specific provision of this Agreement.
11.10. Survival. The following sections shall survive the expiration or termination of this Agreement: 2 (Ownership); 3 (Fees; Taxes); 6 (Confidentiality); 7 (Indemnification); 8.4 (Effects of Termination); 8.5 (Return or Destruction of Materials); 9 (Disclaimer); 10 (Limitation of Liability); and 11 (General Provisions).
11.11. Construction. Section headings of this Agreement have been added solely for convenience of reference and shall have no effect upon construction or interpretation of this Agreement. Unless the context otherwise requires, words importing the singular shall include the plural and vice-versa. All references to “days” shall mean calendar days, unless otherwise specified. The Parties acknowledge that this Agreement was prepared by both Parties jointly, and any uncertainty or ambiguity shall not be interpreted against any one Party.
11.12. Counterparts. This Agreement an Order may be executed in any number of counterparts, each of which is deemed an original, and all taken together constitute one and the same instrument. If this Agreement is executed in counterparts, no signatory is bound until all Parties have duly executed this Agreement and all Parties have received a fully executed Agreement. Any signature transmitted by facsimile or e-mail (in .pdf, .tif, .jpeg, or a similar format), or a photocopy of such transmission, is deemed to constitute the original signature of such Party to this Agreement.
PREVENT™ LICENSE AGREEMENT
PREVENT™ ORDER
This PREVENT™ Order (“Order”) is entered into pursuant to that certain PREVENT™ License Agreement (“Agreement”) by and between the American Heart Association (“AHA”) and the party identified below on this signature page (“Licensee”) All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Agreement. This Order is effective as of the date of last signature below (the “Effective Date”).
- Solution. Licensee will access PREVENT™ through
- Delivery: AHA will deliver electronically a copy of PREVENT™ to be installed on Licensee’s equipment.
- Authorized Users. Licensee may only download one copy of PREVENT™. Each authorized user from a single institution must sign a separate Agreement. The rights under this Agreement are specific to the user and the downloaded copy may not be shared, disseminated, distributed, or reproduced in whole or in part except as strictly permitted by this Agreement.
2. License. During the Term of this Order, AHA hereby grants Licensee, and Licensee hereby accepts, a limited, revocable, world-wide, right and license to use PREVENT™
- Within Licensee’s academic institution, only for internal, non-monetized, non-commercial research and academic purposes.
- Licensee must include the following attribution statement in all public facing documents, publications, or materials: The PREVENT™ equations were developed by select members of the American Heart Association Cardiovascular-Kidney-Metabolic Scientific Advisory Group. The risk equations were derived and validated in a large, diverse sample of over 6 million individuals.
3. Fees. None for Academic Purpose.
4. Term. The term of this Order shall commence on the Effective Date and shall continue in effect for the initial term set forth below (the “Initial Term”). Thereafter this Order shall renew for consecutive monthly terms as set forth below (each, a “Renewal Term”) unless Licensee provides no less than [sixty (60) days] prior written notice of non-renewal prior to the expiration of the then-current Initial or Renewal Term. AHA may terminate this Agreement and/or Order immediately for convenience.
- Initial Term: 12 months
- Renewal Term: 12 months
5. Definitions.
- “Affiliates” means those corporations and other entities that are controlled by, controlling, or under common control with a Party.
- “Output” means any data, information, understandings, intellectual property, or any other work product that is created by Licensee as a result of using PREVENT™ (including, but not limited to, technical information, design documents, models, software, training materials, documentation, reports, notes, work papers, review sheets, inventions, business processes, business or marketing plans and strategies, methods, software, requirements, specifications, technical information, object code, source code, HTML files, Java files, graphics files, animation files, data files, technology, scripts, programs, works of authorship, creative works, concepts, residual knowledge, or data).
IN WITNESS WHEREOF, the Parties have caused this Order to be duly executed. Each Party warrants and represents that its respective signatories whose signatures appear below have been and are on the date of signature duly authorized to execute this Agreement.