Terms & Conditions
Updated May 18, 2018
Research Tool Software Non-Exclusive License Agreement
NOTICE TO USER: PLEASE READ THIS RESEARCH TOOL SOFTWARE NON-EXCLUSIVE LICENSE AGREEMENT [‘THIS AGREEMENT’] CAREFULLY. BY DOWLOADING AND/OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU INDICATE YOUR ACCEPTANCE OF THE FOLLOWING TERMS FROM INSTITUTE. YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE AS IF IT WERE AN INDIVIDUALLY- NEGOTIATED AGREEMENT SIGNED BY YOU.
The Agreement is between DANA-FARBER CANCER INSTITUTE, INC., a Massachusetts nonprofit corporation and 501(c)(3) tax-exempt organization, (the “INSTITUTE”) and you (the “Licensee”) (a natural person). This Agreement is effective as of the earliest date Licensee accesses, downloads or uses the Software (as defined below) (the “Effective Date”).
The Authors are employees of the INSTITUTE’s Department of Biostatistics and Computational Biology who have written a downloadable computer program known as ASK2ME™ (the "Software") which is available via the World Wide Web at: https://ask2me.org.
A. “Authors” means Dr. Giovanni Parmigiani and such other persons as Institute may identify from time to time.
B. ‘Term’ has the meaning specified in Section 4.
C. ‘Purpose’ means the use of the Software provide risk estimates based on genetic testing results for individual informational purposes only and for no other purposes.
D. ‘Use or Using’ means to access, use, run, or otherwise benefit from accessing the Software during the Term.
2. Grant of License
2.1 The Licensee wishes to acquire a license to Use the Software for the Purpose and the INSTITUTE hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, non-assignable license to INSTITUTE's rights to Use the Software during the Term for the Purpose. Licensee may not copy, reproduce, republish, upload, post, display, transmit or frame the Software or any associated materials without prior written consent from INSTITUTE, except that Licensee may view, download, display and print a single copy of the Software and associated materials on a single computer for noncommercial use only, so long as: Licensee does not alter or modify the materials in any way; Licensee includes all applicable notices and disclaimers (including copyright notices); and Licensee does not use the materials in a way that suggests an association with INSTITUTE.
2.2 Use of the Software is subject to this Agreement. INSTITUTE may modify these terms and conditions at any time, and such modifications will be effective immediately upon posting the modified terms and conditions on the Software. Licensee agrees to review the agreement periodically to be aware of such modifications, and Licensee's Use of the Software constitutes Licensee's acceptance of this Agreement as it appears at the time of Licensee's Use. From time to time, INSTITUTE may offer website visitors the opportunity to participate in additional features or services through the Software. Licensee may be required to enter into additional agreements or authorizations before Licensee can access such features or services.
3. Ownership and Use of Software
3.1 The Licensee agrees that the Software:
(a) is to be used solely for individual informational purposes;
(b) will not be used in clinical trials, or for diagnostic purposes involving human subjects without the prior written consent of INSTITUTE;
(c) is to be used only at the Licensee”s organization and only in the Licensee’s facility under the direction of the Licensee or others working under the direct supervision of Licensee;
(d) is to be used only for the Purpose and will not be used for any other purpose without the prior written consent of INSTITUTE; and
(e) will not be transferred to anyone else within the Licensee’s organization without the prior written consent of INSTITUTE.
The Software is provided “as is”. Licensee acknowledges and agrees that the Software has not been approved for any use by any regulatory authority.
3.2 The INSTITUTE has and will retain sole and exclusive ownership of all right, title and interest in and to the Software, including all copyright and any other intellectual property rights therein. This Agreement grants a limited license to Use the Software for the Purpose and does not and will not be construed to convey title to or ownership of the Software or any trademarks or service marks of INSTITUTE to Licensee. All rights in and to the Software not expressly granted to Licensee by this Agreement are reserved by the INSTITUTE. The marks “ASK2ME™” are trademarks and/or service marks of INSTITUTE. The Software is protected by U.S. and international copyright, trademark, and/or other intellectual property rights and laws. Any unauthorized Use of the Software, including but not limited to any Use other than for the Purpose, may violate such laws and this Agreement. Except as provided in this Agreement, no express or implied licenses or other rights are provided to the Licensee under any patents, patent applications, trade secrets, or other proprietary rights of INSTITUTE.
3.3 Ownership of all data and information processed Using the Software is and will remain with and vest in the Licensee. Licensee is solely responsible for all data and information collected, collated, and processed using the Software and Licensee is solely responsible for compliance with all and any statutory obligations relating thereto.
3.4 The Licensee will Use the Software only for the Purpose and for no other purposes. Licensee will not modify, adapt, disassemble, reverse engineer, decompile, translate, or otherwise attempt to modify the Software, the content, or the source code of the Software, or write and/or develop any derivative software or any other software program based on or that makes use of the Software or permit any third party to modify, adapt, disassemble, reverse engineer, decompile, translate or otherwise attempt to modify the Software or the source code of the Software, or write or develop any derivative software or any other software program based on or that makes use of the Software.
3.5 The Licensee will not distribute, transfer, sub-license, assign, sell, lend, provide any services to third parties, provide access (including without limitation via a public-access internet site) to all or any part of the Software or use the Software or any portion thereof to process the work of any third party.
3.6 The Software is intended for use by individuals 18 years of age or older. The Software is not directed for use by children under the age of 18. Users under the age of 18 should get the assistance of a parent, guardian or providers to use this site. Licensee agrees that it will not:
- Upload or transmit any communications or content of any type that may infringe or violate any rights of any party
- Use the Software for any purpose in violation of local, state, national or international laws
- Use the Software as a means to distribute advertising or other unsolicited material to any third party
- Use the Software to post or transmit material that is unlawful, obscene, defamatory, threatening, harassing, abusive, slanderous, hateful or embarrassing to any other person or entity
- Attempt to disable, "hack" or otherwise interfere with the proper functioning of this website
- If Licensee uses any part of the Software requiring secure access, Licensee is responsible for maintaining the confidentiality of Licensee's account and password and for restricting access to Licensee's computer, and Licensee agrees to accept responsibility for all activities that occur under Licensee's account or password. The Licensee will refer to the INSTITUTE any request by a third party for the Software. The Licensee is and will remain fully responsible at all times for all acts and omissions of anyone it allows to Use the Software and for ensuring any such persons understand and comply with this Agreement. This responsibility includes without limitation any employee, agent, student, consultant, independent contractor, or visiting researcher, in each case, of Licensee.
3.7 If the Licensee desires to Use or license the Software for commercial purposes, the Licensee agrees, in advance of such use, to negotiate in good faith with INSTITUTE to establish the terms of a commercial license. It is understood by the Licensee that INSTITUTE has no obligation to grant such a license to the Licensee and may grant exclusive or non-exclusive commercial or noncommercial licenses to others, or sell or assign all or part of the rights in the Software to any third party(ies), subject to any pre-existing rights held by others and obligations to the United States federal Government.
This Agreement is effective as of the Effective Date and will remain in effect until the last date of Use of the Software by Licensee or any of Licensee's employees, agents, students, consultants, independent contractors, or visiting researchers, at which time it will automatically expire. INSTITUTE may, in its sole discretion, terminate this Agreement, Licensee's account or its use of the Software at any time. INSTITUTE reserves the right to change, suspend or discontinue all or any aspects of the Software at any time without prior notice. All provisions of this Agreement which by their terms are intended to be effective after termination or expiration of this Agreement will survive termination or expiration of this Agreement for whatever cause, including, without limitation Sections 3, 4, 5, and 6.
5. Disclaimer and Limitation of Liability
5.1 The Software is provided to educate consumers and health care providers about health care and medical issues that may affect their daily lives. Nothing in the Software is, should be considered to be, or used as a substitute for medical advice, diagnosis, or treatment. The Software and its Use do not constitute the practice of any medical, nursing, or other professional health care advice, diagnosis, or treatment. Patients should always talk to a health care provider for diagnosis and treatment, including specific medical needs. Health care providers should use this information only in an educational manner. None of the products or services offered through the Software represents or warrants that any particular service or product is safe, appropriate, or effective for Licensee or any patients. Licensee is advised to always seek the advice of a physician or other qualified health care provider with any questions regarding personal health or medical conditions and that providers use their medical judgment. If you are a patient and have or suspect that you have a medical problem or condition, please contact a qualified health care professional immediately. If you are in the United States and are experiencing a medical emergency, please call 911 or call for emergency medical help on the nearest telephone.
5.2 THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, AND INSTITUTE, ITS ADMINISTRATORS, TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND INSURERS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT THERETO. BY WAY OF EXAMPLE, BUT NOT OF LIMITATION, INSTITUTE, ITS ADMINISTRATORS, TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND INSURERS MAKE NO REPRESENTATIONS OR WARRANTIES: (i) OF COMMERCIAL UTILITY; (ii) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (iii) AS TO TITLE OR THE VALIDITY OF ANY INTELLECTUAL PROPERTY RIGHTS; (iv) THAT THE USE OF THE SOFTWARE WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, OR OTHER PROPRIETARY RIGHTS OF OTHERS; OR (v) AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE WITH REGARD TO THE SOFTWARE OR ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH THE SOFTWARE. IN ADDITION, INSTITUTE DOES NOT GUARANTEE THAT USE OF THE SOFTWARE WILL BE FREE FROM TECHNOLOGICAL DIFFICULTIES INCLUDING, BUT NOT LIMITED TO, UNAVAILABILITY OF INFORMATION, DOWNTIME, SERVICE DISRUPTIONS, VIRUSES OR WORMS, AND LICENSEE UNDERSTANDS THAT IT IS RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY ITS PARTICULAR REQUIREMENTS FOR ACCURACY OF DATA INPUT AND OUTPUT.
5.3 THE USE OF THE SITE IS ENTIRELY AT LICENSEE'S OWN RISK, AND IN NO EVENT SHALL INSTITUTE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ANY OTHER MONETARY OR OTHER DAMAGES, FEES, FINES, PENALTIES, OR LIABILITIES ARISING OUT OF OR RELATING IN ANY WAY TO THE SOFTWARE, OR SITES ACCESSED THROUGH THE SOFTWARE, AND/OR CONTENT OR INFORMATION PROVIDED HEREIN. LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SOFTWARE IS TO STOP USING THE SOFTWARE. LICENSEE HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH WILL APPLY TO ALL CONTENT, MERCHANDISE, AND SERVICES AVAILABLE THROUGH THE SOFTWARE. INSTITUTE, ITS ADMINISTRATORS, TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND INSURERS WILL NOT BE LIABLE TO LICENSEE, LICENSEE'S SUCCESSORS OR ASSIGNS, OR ANY THIRD PARTY (IF SUCH THIRD PARTY'S CLAIM RESULTS FROM LICENSEE'S OR ANY OF ITS AFFILIATES' OR AGENTS' ACTIVITIES) WITH RESPECT TO: (i) ANY CLAIM ARISING FROM USE BY LICENSEE OR ANY AFFILIATE THEREOF OF THE SOFTWARE; OR (ii) ANY CLAIM FOR LOSS OF PROFITS, LOSS OR INTERRUPTION OF BUSINESS, OR FOR INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ECONOMIC DAMAGE, INJURY TO PROPERTY, AND/OR LOST PROFITS, REGARDLESS OF WHETHER INSTITUTE SHALL BE ADVISED, SHALL HAVE REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY OF SUCH DAMAGES OR INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
5.4 Licensee will defend, indemnify, and hold harmless INSTITUTE, its administrators, trustees, officers, directors, employees, agents, and insurers (individually, an "Indemnified Party," and collectively, the "Indemnified Parties"), at the expense of Licensee, from and against any and all liability, loss, injury, damage, action, court or administrative order, claim, or expense suffered or incurred by the Indemnified Parties, including, without limitation, reasonable attorney's fees and expenses, court costs and other legal expenses, (individually, a "Liability," and collectively, the "Liabilities") that results from or arises out of: (a) any act or failure to act of Licensee or any of its affiliates; (b) the Use of the Software by Licensee, or any of its affiliates or any of its agents or any other third parties under Licensee's control; (c) any material breach by Licensee or any of its affiliates of this Agreement; or (d) the enforcement by an Indemnified Party of this Section, in each case, other than as a result of Liabilities resulting from or related to the gross negligence or willful misconduct of one or more Indemnified Parties. Licensee will not settle or compromise any claim or action giving rise to Liabilities in a manner that imposes any restrictions or obligations on any Indemnified Party or grants any rights to the Software without INSTITUTE's prior written consent. If Licensee fails or declines to assume the defense of any such claim or action within thirty (30) days after notice thereof, INSTITUTE may assume the defense of such claim or action for the account and at the risk of Licensee, and any Liabilities related thereto will be conclusively deemed a liability of Licensee. The indemnification rights of INSTITUTE and other Indemnified Parties contained herein are in addition to all other rights which such Indemnified Party may have at law or in equity or otherwise.
6.1 The parties' relationship is that of independent contractors, and nothing in this Agreement will be deemed to establish a relationship of principal and agent between INSTITUTE and Licensee, or between or among any of either party's agents or employees for any purpose whatsoever. This Agreement will not be construed as creating a joint venture, partnership, or any other form of legal association or arrangement that would impose liability upon one party for the act or failure to act of the other party.
6.2 Licensee may not assign this agreement. Any purported assignment of this Agreement or the rights hereunder is null and void.
6.3 This Agreement constitutes the entire agreement and understanding of the parties and supersedes all negotiations, understandings or previous agreement between the parties relating to the subject matter of this Agreement. This Agreement may not be changed, modified, or extended except by written amendment executed by an authorized representative of each party.
6.4 This Agreement will be construed and governed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to conflict of law provisions applicable therein. In the event that a party to this Agreement perceives the existence of a dispute with the other party concerning any right or duty provided for herein, the parties will confer as soon as practicable in an attempt to resolve the dispute. If the parties are unable to resolve such dispute amicably, then the parties hereby submit to the exclusive jurisdiction of and venue in the federal and state courts located in the Commonwealth of Massachusetts with respect to any and all disputes concerning the subject of this Agreement.
6.5 Licensee will not use, and Licensee will not permit any of its affiliates to use, INSTITUTE’s name, any adaptation thereof, any INSTITUTE seal, logotype, trademark, or service mark (including ASK2ME™), or the name, mark, or logotype of any INSTITUTE employee, representative, or organization in any way without the prior written consent of INSTITUTE.
6.6 A waiver by either party of a breach of any provision of this Agreement will not constitute a waiver of any subsequent breach of that provision or a waiver of any breach of any other provision of this Agreement.
6.7 Licensee will comply with all prevailing laws, rules, and regulations that apply to its activities and/or obligations under this Agreement. Without limiting the foregoing, it is understood that this Agreement may be subject to United States laws and regulations controlling the export of technical data, computer software, laboratory prototypes and other commodities, articles and information, including the Arms Export Control Act as amended in the Export Administration Act of 1979, and that the parties' obligations are contingent upon compliance with applicable United States export laws and regulations. The transfer of certain technical data and commodities may require a license from the appropriate agency of the United States Government and/or written assurances by Licensee that Licensee will not export data or commodities to certain foreign countries without prior approval of such agency. INSTITUTE represents neither that a license is not required nor that, if required, it will issue.
6.8 If any provision of this Agreement is held to be illegal, invalid, or unenforceable, then such illegality, invalidity, or unenforceability will attach only to such provision and will not in any manner affect or render illegal, invalid, or unenforceable any other provision of this Agreement. This Agreement will be carried out as if any such illegal, invalid or unenforceable provision were not contained herein.
6.9 Headings included herein are for convenience only and will not be used to construe this Agreement.
6.10 Notices and other communications under this Agreement to Institute will be in writing and will be deemed to have been received as of the date sent if sent by public courier (e.g., Federal Express) or by Express Mail, receipt requested, and addressed as follows:
If for INSTITUTE:
Belfer Office for Dana-Farber Innovations
Dana-Farber Cancer Institute, Inc.
450 Brookline Avenue
Boston, MA 02215
Attn: Vice-President, Dana-Farber Innovations
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