Database Access and Use Agreement
Last Updated: August 15, 2019
HIPEC Registry operates and offers a web-based HIPEC patient and procedure database and registry (the “Database”) pursuant to the following Database Access and Use Agreement (“Agreement”). The Database is made available through the website with a home page currently at hipecregistry.com and through any optimized version of this website via a wireless device or via mobile applications that we make available.
By clicking on the “I Agree” check box when prompted to do so, or otherwise using the Database, User accepts and agrees to be bound and abide by this Agreement. If User does not want to agree to this Agreement, User must not register for an account or access or use the Database.
This Agreement IS IN ADDITION TO, NOT IN LIEU OF, ANY RESEARCH OR OTHER AGREEMENTS BETWEEN USER AND COMPANY.
Company reserves the right to make changes to this Agreement at any time. All changes are effective immediately when we post them, and apply to all access to and use of the Database thereafter. If User is dissatisfied with the Database or this Agreement, User agrees that User’s sole and exclusive remedy is to discontinue using the Database.
The Database is offered and available to Users who are 18 years of age or older and reside in the United States. By using the Database, User represents and warrants that User is 18 years of age or older and otherwise meets all of the eligibility requirements contained herein. If User does not meet all of these requirements, User must not access or use the Database.
Authorized Users will be issued a user account by Company, via which User may access and use the Database. Depending on the level of permissions assigned to User’s user account, User may not have access to or be able to view or use all of the functions or features of the Database.
If User chooses, or is provided with, a username, password, or any other piece of information as part of Company’s security procedures, User must treat such information as confidential. User agrees to notify Company immediately of any unauthorized access to or use of User’s user name or password or any other breach of security. It is User’s responsibility to contact Company and change User’s password immediately if User feels User’s security has been compromised. Company has the right to disable any user name, password, or other identifier, whether chosen by User or provided by Company, at any time if, in Company’s opinion, User has violated any provision of this Agreement.
User is responsible and liable for: (i) User’s conduct; and (ii) any use of the Database through User’s information technology systems or environment, whether authorized or not.
Subject to User’s compliance with this Agreement, Company hereby grants User a non-exclusive, non-transferable right to access and use the Database, solely in the conduct of User’s normal course of business of performing HIPEC surgery, documenting HIPEC surgery, or researching HIPEC surgery and related outcomes, and in accordance with this Agreement. User understands and agrees that the Database is provided under license to User, not being sold to User, and User does not gain any ownership interest of any kind in the Database under this Agreement.
User may also have access to any documentation published by Company from time to time reasonably necessary to operate the Database, including any online help and quick-start manuals (collectively, “Documentation”). User may reproduce and use the Documentation solely as reasonably necessary to support User’s use of the Database.
Company will not be liable if, for any reason, all or any part of the Database is unavailable at any time or for any period. From time to time, Company may restrict access to some parts of the Database, or the entire Database, to User. Company does not make any representations or guarantees regarding uptime or availability of the Database.
User may transmit, upload or otherwise submit information regarding certain patients to the Database (“Patient Data”). Company shall exercise commercially reasonable efforts to provide appropriate security and to prevent unauthorized access of Patient Data. Notwithstanding the foregoing, User recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure of Patient Data and that, in accessing and using the Database, User assumes such risks. Company is not liable for any illegal acts of third parties (e.g., criminal hackers).
User represents and warrants that the Patient Data does not and will not include anything that infringes the copyright, patent, trade secret, trademark or any other intellectual property right of any third party. User represents and warrants that User has obtained all legally required consents and permissions, from individuals, patients, and/or institutions, necessary for User to upload Patient Data to the Database.
By transmitting, uploading or otherwise submitting Patient Data to the Database, User grants Company and its affiliates and services providers, and each of their and Company’s respective licensees, successors, and assigns, the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such Patient Data.
User represents and warrants that, to the best of User’s knowledge, all Patient Data is accurate and correct. COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE ACCURACY OR COMPLETENESS OF ANY DATA, INCLUDING PATIENT DATA, UPLOADED TO THE DATABASE BY ANY USER.
Subscription, Renewal, and Termination
The Database is offered on Software as a Service (SaaS) subscription basis for the term of one (1) year. This agreement is a User’s Order. User’s Order becomes binding upon clicking “I Agree” to this Agreement. After each subscription term, the Database term will automatically renew for the agreed upon term (e.g. 1 year). The Order may also list any applicable additional terms, such as scope of access limitations, use limitations, or subscription fees.
Either party may terminate this Agreement for convenience at any time on seven (7) days’ written notice to the other party.
Additionally, Company may immediately suspend, limit, or terminate User’s access to the Database, or terminate this Agreement, if: (i) User violates this Agreement; (ii) User violates any applicable law or regulation relating to User’s use of the Database; (iii) User engages in any conduct which Company, in its sole discretion, believes creates a security risk or is otherwise harmful to Company or others; or (iv) User breaches any other agreement with Company.
Upon termination, User’s account and the Database will become unusable. User is responsible for maintaining archives of any Patient Data or other data uploaded to the Database. Company is under no further obligations to User upon termination of this Agreement. Any rights granted to Company, with regards to Patient Data, shall continue in perpetuity, provided that such rights will only apply to de-identified Patient Data, after termination of this or any other agreement between Company and User.
Appropriate Use and Limitations
The Database is controlled and operated by Company from its offices within the United States. The Database is not intended to subject Company to any non-U.S. jurisdiction or law. If User chooses to access the Database from other locations, it does so on its own initiative and at its own risk and is responsible for compliance with all applicable laws, rules and regulations in its respective location in doing so.
User shall not use the Database for any purposes beyond the scope of the access granted by this Agreement. User shall not at any time, directly or indirectly, and shall not permit any users to: (i) reproduce, modify, adapt, translate, create derivative works of or otherwise exploit any portion of the Database; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Database; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Database, in whole or in part; (iv) remove any proprietary notices from the Database; or (v) use the Database in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, privacy right, or other right of any person, or that violates any applicable law.
In connection with the Database, User must not: (i) transmit or otherwise make available through or in connection with the Database, any virus, work, Trojan horse, time bomb, or other computer code, file or program that is potentially harmful or malicious; (ii) use any device, software or routine that interferes with the Database; (iii) use the Database in an unlawful or fraudulent manner; (iv) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Database, the server on which the Database is stored, or any server, computer or database connected to the Database; (v) use any automatic device, process or means to access the Database for any purpose, including monitoring or copying content on the Database; and (vi) otherwise attempt to interfere with the proper working of the Database.
User is responsible for the oversight and conduct of patient or research related functions, including but not limited to, the selection, qualification or monitoring of data; patient recruitment, management or clinical care; or anything else that is construed as a responsibility of User. User alone, or jointly with those other than Company, determines the purposes and means of the processing of all personal data. User is responsible for obtaining all authorizations and consents required under applicable law, including, but not limited to, those required and defined by the HIPAA Privacy Rule under U.S. law, under any applicable state law, and all consents required as appropriate, with regards to Patient Data.
Company may take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Database.
Intellectual Property Ownership
User acknowledges that, as between User and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Database and, with respect to third-party products, the applicable third-party company owns all right, title, and interest, including all intellectual property rights, in and to the third-party products.
Company names and logos and all related product and service names, design marks and slogans are the trademarks or service marks of Company. All rights are reserved. User is not authorized to use any Company name or mark in any advertisement, publicity or in any other commercial manner without prior written consent of Company. All other trademarks appearing in connection with the Database is the property of their respective owners.
The entire contents and design of the Database is protected by U.S. and international copyright law. All rights regarding the Database and materials contained on the Database are either owned by Company, are licensed to it, or are used by the Company with permission. Company and its licensors, vendors or other service providers retain and reserve all proprietary rights to the contents of the Database.
We may from time to time in our sole discretion develop and provide Database updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. User agrees that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. It is expressly acknowledged by User that Company may perform Update at any time and without User’s approval.
“Confidential Information” shall mean all confidential information or proprietary information and documentation of a party, whether or not marked as such. The data contained in the Database that is derived from or was submitted by users other than User shall be deemed the Confidential Information of Company. Confidential Information, shall not include: (i) information which is or becomes publicly available (other than by the person or entity having the obligation of confidentiality) without breach of this Agreement; (ii) information independently developed by the receiving party; (iii) information received from a third party not under a confidentiality obligation to the disclosing party; or (iv) information already in the possession of the receiving party without obligation of confidence at the time first disclosed by the disclosing party. All Confidential Information of the disclosing party shall remain the property of the disclosing party.
Except as otherwise provided in this Agreement, neither party shall use Confidential Information, or disclose to any third party any Confidential Information, other than for the purposes of performing any rights or obligations under this Agreement. Both parties shall ensure that their employees, officers, directors, agents and representative are advised of their obligations with respect to receiving Confidential Information of the other. In addition, both parties shall ensure that any subcontractors and agents shall execute similar agreement protecting the other’s proprietary information and agree to be bound by the terms and conditions contained therein.
This Agreement will not be deemed to restrict either party from complying with a lawfully issued governmental order or other legal requirement to produce or disclose Confidential Information; provided, however, that the party complying with such order or requirement will promptly notify the other upon learning of such order or requirement, to enable the other party to oppose the order or obtain a protective order, and the parties will cooperate to a reasonable extent with each other in such proceedings.
THE DATABASE IS PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE DATABASE, OR ANY RESULTS OF THE USE THEREOF, WILL MEET USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER DATABASE, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Transmission of information via the internet is not completely secure. Company cannot guarantee the security of information transmitted via the Database or the Company’s website. Any transmission of personal information is at User’s own risk. User acknowledges and agrees that Company is not responsible for circumvention of any privacy settings or security measures contained in the Database or its website.
TO THE FULLEST EXTENT PROVIDED BY LAW, COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT USER’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO USER’S USE OF THE DATABASE OR COMPANY’S WEBSITE OR ANY INFORMATION OBTAINED THROUGH THE DATABASE OR COMPANY’S WEBSITE OR TO USER’S DOWNLOADING OF ANY MATERIAL VIA THE DATABASE OR COMPANY’S WEBSITE, OR ANY WEBSITE LINKED TO IT.
Limitations of Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OF USE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT LIABILITY, EVEN IF FORESEEABLE, EXCEED ONE-HUNDRED DOLLARS ($100).
User agrees to defend, indemnify and hold Company, its parent and affiliate entities, and all of their owners, officers, directors, employees, contractors and service providers, harmless from and against any and all claims, damages, costs and expenses, including attorneys’ fees, arising from or related to: (i) User’s use of the Database; (ii) any Patient Data; and/or (iii) User’s breach of this Agreement.
This Agreement is governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Database shall be instituted exclusively in the federal courts of the United States or the courts of the State of Minnesota in each case located in Ramsey County. User waives any and all objections to the exercise of jurisdiction over User by such courts and to venue in such courts. In the event of any dispute, the prevailing party shall be entitled to reasonable attorneys’ fees and costs at trial and through all appellate levels.
Each Party acknowledges and agrees that this agreement is not a Business Associate Agreement as defined in 45 CFR 164.504(e) and that User is not a covered entity for purposes of HIPAA.
Under no circumstances will Company be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond Company’s reasonable control.
If any provision of this Agreement is found to be unlawful or unenforceable, then that provision will be deemed severable from this Agreement and will not affect the enforceability of any other provisions.
The failure by Company to enforce any right or provision of this Agreement will not prevent Company from enforcing such right or provision in the future.
User is solely responsible for any taxes (including VAT/GST, sales or use taxes and intangible taxes) resulting from User’s access and use of the Database.
Each party acknowledges that, in the event of its breach of the confidentiality provisions of this Agreement, the other party will not have an adequate remedy in money or damages. The non-breaching party will therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. A party’s right to obtain injunctive relief shall not limit its right to seek further remedies.
No delay, failure or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by an acts of war; terrorism, hurricanes, earthquakes and other acts of God or of nature, fire or flood; strike or labor unrest; degradation of telecommunications service; degradation of computer services not under the direct control of such party; or other causes beyond the performing party’s reasonable control.
Company may assign its rights and obligations under this Agreement, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law. User may not assign rights and obligations under this Agreement, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law, without Company’s prior written consent.
Company may send notices pursuant to this Agreement to User’s email contact points provided by User, and such notices will be deemed received 24 hours after they are sent. User may send notice pursuant to this Agreement to the email address below, and such notices will be deemed to be received 24 hours after they are sent.
If User has questions or comments about the Database or this Agreement, please contact us contact us at firstname.lastname@example.org
67621886.2BAck to Registry Form