Provider Terms
Introduction. The Provider Terms (“Terms”) outlined here are entered into by and between Protege Health Inc. ("Protege"), and the organization or entity ("Provider") named in the Schedule, under which Provider will provide data sets and samples (the “Data”) on the Protege software application (“Platform”) to third party purchasers (“Consumers”). The Effective Date of the Terms is the Effective Date on the Schedule signed with Protege. These Terms and any Schedules comprise the “Agreement” between Provider and Protege. By signing a Schedule with Protege, Provider agrees to be bound by these Terms. If any provision of these Terms conflicts with a Schedule signed by Protege and the Provider, the Schedule supersedes and controls with respect to that provision.
Rights and obligations.
Platform provider rights and license grant. Provider represents and warrants that Provider has ownership, control, and responsibility for any Data that Provider makes available to Protege including all necessary licenses, registrations, rights, consents and approvals to use or disclose any Data, any personally identifiable information (“PII”), Protected Health Information (as defined under HIPAA), and any other information protected under the Health Insurance Portability and Accountability Act (“HIPAA”) or an equivalent state law. Provider represents and warrants that it uses commercially reasonable efforts to ensure that the Data is obtained from sources that are reputable and reliable, the Data does not violate any applicable laws or regulations and does not infringe or misappropriate any rights of any person or entity. Notwithstanding anything to the contrary in Section 1.3 (Use Restrictions) and Section 4 (Confidentiality), Provider grants Protege a worldwide, royalty-free and non-exclusive license to use, display, publish, reproduce, distribute and make derivative works of such Data in accordance with the terms of this Agreement and to provide Services on the Platform. This license expressly includes the right to sublicense such Data to Consumers in accordance with this Agreement.
Datasets. Provider agrees to provide the initial data sets included in the Schedule (“Data”) to be available within the Platform to Consumers.
Data licensing and use restrictions.
Rights granted to Consumers. When a Consumer purchases a license to use Data, Provider allows use of Data in accordance with the license type purchased by Consumer and any other terms expressly set forth in an agreement between Protege and Consumer. The default license granted by Protege permits the Consumer to use the licensed Data for the internal business purpose of developing an algorithm or model.
Prohibited Uses. For the avoidance of doubt, except as specifically provided with prior approval from Provider, Protege will not permit Consumer to: (i) attempt any re-identification of de-identified datasets, (ii) publish, disseminate, distribute, or provide access of any kind to the Data, or any material subset thereof, to any third party, (iii) sell, sublicense, loan, lease, assign, authorize others to access, use, disclose, or attempt to grant any rights to, the Data, or any material subset thereof, to third parties or (iv) make derivative data products from the Data.
Information provided by Protege. Provider may receive details about transactions, including Consumer name and Use Case, from Protege. Provider may use such information only for the purposes set forth in this Agreement.
Breach notification. If Protege becomes aware of a breach of security leading to accidental or unlawful destruction, loss, or alteration, unauthorized disclosure of, or access to, PII (as defined in Section 2) processed by Protege on behalf of Provider (a “Data Breach”), Protege will notify the Provider without undue delay and in any event, within 72 hours after becoming aware of such confirmed Data Breach and will cooperate with the Provider and take such reasonable commercial steps as agreed with the Provider to assist in the investigation, mitigation and remediation of such Data Breach.
Protege’s proprietary rights. Protege retains ownership of all of Protege’s intellectual property rights related to the Platform, Services, and materials that Protege produces, including all improvements to the Services and usage data about the Platform and Services. All rights not expressly granted are reserved and retained by Protege.
Confidentiality. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the disclosing party (“Disclosing Party”) or reasonably should be known by the receiving party (“Receiving Party”) to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information shall not include information that the Receiving Party can demonstrate: (i) was already known to it; (ii) became public knowledge through no fault of the Receiving Party; (iii) is lawfully obtained from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information (but not less than reasonable care) to (i) not use any Confidential Information for any purpose outside the scope of this Agreement, and (ii) to limit access to Confidential Information to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are bound by confidentiality obligations not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law to disclose Confidential Information, Receiving Party will provide advance notice to the Disclosing Party, if legally allowed.
Indemnification.
Indemnification by Provider. Provider agrees to indemnify, defend, and hold harmless Protege and its affiliates from and against any and all allegations, threats, claims, liabilities, expenses (including attorneys’ fees), suits and proceedings brought by a third party (each, a “Claim” and collectively, “Claims”) related to Provider’s use, inability to use, or misuse of the Platform and/or our Services, including but not limited to (i) alleging that the Data and/or Provider Materials infringe any intellectual property, privacy, publicity, or other rights of such third party, (ii) arising from or relating to Provider’s breach of this Agreement, or (iii) violation of any applicable federal, state, or local law or regulation.
Indemnification by Protege. Protege agrees to indemnify, defend, and hold harmless Provider and its affiliates from and against any and all Claims arising from any representations by Protege to Consumers regarding the Data that are not in accordance with the terms of this Agreement.
Indemnification procedures. If an indemnity obligation arises, the Indemnified Party will: (i) promptly notify the Indemnifying Party in writing of the Claim, (ii) allow the Indemnifying Party to control the defense and settlement of the Claim at its own expense, and (iii) provide necessary cooperation at the Indemnifying Party’s request and expense. Failure to notify does not relieve the Indemnifying Party of a Claim, except for costs incurred before notice or damages caused by delay or failure to provide notice. The Indemnifying Party may not settle a Claim that imposes obligations or admissions on the Indemnified Party without prior written consent, which will not be unreasonably withheld. Indemnification does not apply if the Indemnified Party settles or admits to a Claim without consent.
Warranty disclaimer. Except as expressly stated, the Platform and Services are provided "as is" and "as available”. Provider hereby disclaims any and all other warranties or guarantees of any kind, including but not limited to the implied warranties of merchantability, non-infringement, quiet enjoyment, and fitness for a particular purpose and expressly acknowledges that Protege: (i) has no responsibility for the acts or omissions of Consumers, other Platform providers, or the Data; and (ii) has no support, warranty, or other obligation (including for continued availability) for the Data. Provider assumes all responsibility for any damage resulting from the use of the Platform, Services, or Data, and Protege provides no guarantee of support or continued availability.
Limitation of liability.
Disclaimer. Subject to Section 6.3 (Exceptions), to the fullest extent of applicable law, Protege and Provider (including their affiliates, subsidiaries, contractors, licensors, officers, directors, agents, or employees) will have no liability arising out of or related to this Agreement for indirect, special, incidental, reliance, punitive, special, or consequential damages of any kind, even if informed of the possibility of such damages in advance, including loss of revenue, profits, data, benefits, or savings, whether or not due to the fault or negligence of the company or related parties. Provider may have the ability to communicate, interact, or otherwise connect with Consumers through our Services. Provider hereby releases Protege from any liability that may arise from Provider’s interactions with Consumers.
General cap. Subject to Section 6.3 (Exceptions), neither Protege’s nor Provider’s aggregate liability under these terms, whether such claim is based in contract, tort, or other legal theory, shall exceed two times (2x) the aggregate of all fees paid and payable to Provider for the Data in the twelve (12) months preceding the event giving rise to the damages.
Exceptions. The exclusions of or limitations on liability set forth in Sections 6.1 (Disclaimer) and 6.2 (General Cap) will not apply to damages or liability arising from a party’s gross negligence, willful misconduct, or fraud. The limitations on liability set forth in Section 6.2 (General Cap) will not apply to: (i) a party’s defense and indemnification obligations hereunder; (ii) a party’s breach of its confidentiality obligations under this Agreement; or (iii) Provider’s liability for infringement of intellectual property rights.
Termination.
Termination. Protege may, in its sole discretion, close or suspend Provider’s access to the Platform for any reason. Protege is not liable to Provider for any impact a change, suspension or discontinuation of our Services may have, including loss of income from Provider’s inability to license Data through Protege.
Survivability of data. Upon termination, Protege will no longer make Provider Data available for purchase or access by new Consumers who haven’t previously licensed the Data. Provider agrees to permit Consumers who have previously licensed the Data have access to that Data for an additional twelve months and to enable Consumers whose primary use is academic research to have access to that Data for an additional three years. Protege reserves the right to retain Provider’s information, including Data, for legal or regulatory compliance.
Survival. Sections 1.3 (Data Licensing and Use Restrictions); Sections 3 (Protege’s Proprietary Rights), 4 (Confidentiality), 5 (Indemnification), 7 (Limitation of Liability), and 9 (General Terms), together with all other provisions of this Agreement that may reasonably be interpreted or construed as surviving expiration or termination of this Agreement, will survive the expiration or termination of this Agreement.
General terms.
Applicable law. This Agreement will be governed by the laws of the State of Delaware and the United States without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods; and the jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in New Castle County, Delaware, and both Protege and Provider hereby submit to the personal jurisdiction of such courts.
Notice. Any notice required under the Agreement shall be sent in writing. Each Party consents to receiving electronic communications from the other Party. For Provider purposes, Notices shall be sent to the email listed in the Schedule. For Protege purposes, Notices shall be sent to notices@withprotege.ai.
Relationship of parties. Neither party may assign or transfer this Agreement or any rights or delegate any duties herein without the prior written consent of the other party, which will not be unreasonably withheld, delayed, or conditioned. Notwithstanding the foregoing, and without gaining the other party’s written consent, either party may assign this Agreement, in whole or part, and delegate its obligations to its affiliates or to any entity acquiring all or substantially all of its assets or the assigning party’s entire business, whether by sale of assets, sale of stock, merger, or otherwise.
Subcontracting. Protege may subcontract all or part of its obligations under these Terms at Protege’s own discretion and without notifying Provider. Protege will bear the same degree of responsibility for acts and omissions of the subcontractors in the performance of their obligations under these Terms as it would bear if such acts and omissions were performed by Protege directly.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect.
Introduction. The Provider Terms (“Terms”) outlined here are entered into by and between Protege Health Inc. ("Protege"), and the organization or entity ("Provider") named in the Schedule, under which Provider will provide data sets and samples (the “Data”) on the Protege software application (“Platform”) to third party purchasers (“Consumers”). The Effective Date of the Terms is the Effective Date on the Schedule signed with Protege. These Terms and any Schedules comprise the “Agreement” between Provider and Protege. By signing a Schedule with Protege, Provider agrees to be bound by these Terms. If any provision of these Terms conflicts with a Schedule signed by Protege and the Provider, the Schedule supersedes and controls with respect to that provision.
Rights and obligations.
Platform provider rights and license grant. Provider represents and warrants that Provider has ownership, control, and responsibility for any Data that Provider makes available to Protege including all necessary licenses, registrations, rights, consents and approvals to use or disclose any Data, any personally identifiable information (“PII”), Protected Health Information (as defined under HIPAA), and any other information protected under the Health Insurance Portability and Accountability Act (“HIPAA”) or an equivalent state law. Provider represents and warrants that it uses commercially reasonable efforts to ensure that the Data is obtained from sources that are reputable and reliable, the Data does not violate any applicable laws or regulations and does not infringe or misappropriate any rights of any person or entity. Notwithstanding anything to the contrary in Section 1.3 (Use Restrictions) and Section 4 (Confidentiality), Provider grants Protege a worldwide, royalty-free and non-exclusive license to use, display, publish, reproduce, distribute and make derivative works of such Data in accordance with the terms of this Agreement and to provide Services on the Platform. This license expressly includes the right to sublicense such Data to Consumers in accordance with this Agreement.
Datasets. Provider agrees to provide the initial data sets included in the Schedule (“Data”) to be available within the Platform to Consumers.
Data licensing and use restrictions.
Rights granted to Consumers. When a Consumer purchases a license to use Data, Provider allows use of Data in accordance with the license type purchased by Consumer and any other terms expressly set forth in an agreement between Protege and Consumer. The default license granted by Protege permits the Consumer to use the licensed Data for the internal business purpose of developing an algorithm or model.
Prohibited Uses. For the avoidance of doubt, except as specifically provided with prior approval from Provider, Protege will not permit Consumer to: (i) attempt any re-identification of de-identified datasets, (ii) publish, disseminate, distribute, or provide access of any kind to the Data, or any material subset thereof, to any third party, (iii) sell, sublicense, loan, lease, assign, authorize others to access, use, disclose, or attempt to grant any rights to, the Data, or any material subset thereof, to third parties or (iv) make derivative data products from the Data.
Information provided by Protege. Provider may receive details about transactions, including Consumer name and Use Case, from Protege. Provider may use such information only for the purposes set forth in this Agreement.
Breach notification. If Protege becomes aware of a breach of security leading to accidental or unlawful destruction, loss, or alteration, unauthorized disclosure of, or access to, PII (as defined in Section 2) processed by Protege on behalf of Provider (a “Data Breach”), Protege will notify the Provider without undue delay and in any event, within 72 hours after becoming aware of such confirmed Data Breach and will cooperate with the Provider and take such reasonable commercial steps as agreed with the Provider to assist in the investigation, mitigation and remediation of such Data Breach.
Protege’s proprietary rights. Protege retains ownership of all of Protege’s intellectual property rights related to the Platform, Services, and materials that Protege produces, including all improvements to the Services and usage data about the Platform and Services. All rights not expressly granted are reserved and retained by Protege.
Confidentiality. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the disclosing party (“Disclosing Party”) or reasonably should be known by the receiving party (“Receiving Party”) to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information shall not include information that the Receiving Party can demonstrate: (i) was already known to it; (ii) became public knowledge through no fault of the Receiving Party; (iii) is lawfully obtained from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information (but not less than reasonable care) to (i) not use any Confidential Information for any purpose outside the scope of this Agreement, and (ii) to limit access to Confidential Information to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are bound by confidentiality obligations not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law to disclose Confidential Information, Receiving Party will provide advance notice to the Disclosing Party, if legally allowed.
Indemnification.
Indemnification by Provider. Provider agrees to indemnify, defend, and hold harmless Protege and its affiliates from and against any and all allegations, threats, claims, liabilities, expenses (including attorneys’ fees), suits and proceedings brought by a third party (each, a “Claim” and collectively, “Claims”) related to Provider’s use, inability to use, or misuse of the Platform and/or our Services, including but not limited to (i) alleging that the Data and/or Provider Materials infringe any intellectual property, privacy, publicity, or other rights of such third party, (ii) arising from or relating to Provider’s breach of this Agreement, or (iii) violation of any applicable federal, state, or local law or regulation.
Indemnification by Protege. Protege agrees to indemnify, defend, and hold harmless Provider and its affiliates from and against any and all Claims arising from any representations by Protege to Consumers regarding the Data that are not in accordance with the terms of this Agreement.
Indemnification procedures. If an indemnity obligation arises, the Indemnified Party will: (i) promptly notify the Indemnifying Party in writing of the Claim, (ii) allow the Indemnifying Party to control the defense and settlement of the Claim at its own expense, and (iii) provide necessary cooperation at the Indemnifying Party’s request and expense. Failure to notify does not relieve the Indemnifying Party of a Claim, except for costs incurred before notice or damages caused by delay or failure to provide notice. The Indemnifying Party may not settle a Claim that imposes obligations or admissions on the Indemnified Party without prior written consent, which will not be unreasonably withheld. Indemnification does not apply if the Indemnified Party settles or admits to a Claim without consent.
Warranty disclaimer. Except as expressly stated, the Platform and Services are provided "as is" and "as available”. Provider hereby disclaims any and all other warranties or guarantees of any kind, including but not limited to the implied warranties of merchantability, non-infringement, quiet enjoyment, and fitness for a particular purpose and expressly acknowledges that Protege: (i) has no responsibility for the acts or omissions of Consumers, other Platform providers, or the Data; and (ii) has no support, warranty, or other obligation (including for continued availability) for the Data. Provider assumes all responsibility for any damage resulting from the use of the Platform, Services, or Data, and Protege provides no guarantee of support or continued availability.
Limitation of liability.
Disclaimer. Subject to Section 6.3 (Exceptions), to the fullest extent of applicable law, Protege and Provider (including their affiliates, subsidiaries, contractors, licensors, officers, directors, agents, or employees) will have no liability arising out of or related to this Agreement for indirect, special, incidental, reliance, punitive, special, or consequential damages of any kind, even if informed of the possibility of such damages in advance, including loss of revenue, profits, data, benefits, or savings, whether or not due to the fault or negligence of the company or related parties. Provider may have the ability to communicate, interact, or otherwise connect with Consumers through our Services. Provider hereby releases Protege from any liability that may arise from Provider’s interactions with Consumers.
General cap. Subject to Section 6.3 (Exceptions), neither Protege’s nor Provider’s aggregate liability under these terms, whether such claim is based in contract, tort, or other legal theory, shall exceed two times (2x) the aggregate of all fees paid and payable to Provider for the Data in the twelve (12) months preceding the event giving rise to the damages.
Exceptions. The exclusions of or limitations on liability set forth in Sections 6.1 (Disclaimer) and 6.2 (General Cap) will not apply to damages or liability arising from a party’s gross negligence, willful misconduct, or fraud. The limitations on liability set forth in Section 6.2 (General Cap) will not apply to: (i) a party’s defense and indemnification obligations hereunder; (ii) a party’s breach of its confidentiality obligations under this Agreement; or (iii) Provider’s liability for infringement of intellectual property rights.
Termination.
Termination. Protege may, in its sole discretion, close or suspend Provider’s access to the Platform for any reason. Protege is not liable to Provider for any impact a change, suspension or discontinuation of our Services may have, including loss of income from Provider’s inability to license Data through Protege.
Survivability of data. Upon termination, Protege will no longer make Provider Data available for purchase or access by new Consumers who haven’t previously licensed the Data. Provider agrees to permit Consumers who have previously licensed the Data have access to that Data for an additional twelve months and to enable Consumers whose primary use is academic research to have access to that Data for an additional three years. Protege reserves the right to retain Provider’s information, including Data, for legal or regulatory compliance.
Survival. Sections 1.3 (Data Licensing and Use Restrictions); Sections 3 (Protege’s Proprietary Rights), 4 (Confidentiality), 5 (Indemnification), 7 (Limitation of Liability), and 9 (General Terms), together with all other provisions of this Agreement that may reasonably be interpreted or construed as surviving expiration or termination of this Agreement, will survive the expiration or termination of this Agreement.
General terms.
Applicable law. This Agreement will be governed by the laws of the State of Delaware and the United States without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods; and the jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in New Castle County, Delaware, and both Protege and Provider hereby submit to the personal jurisdiction of such courts.
Notice. Any notice required under the Agreement shall be sent in writing. Each Party consents to receiving electronic communications from the other Party. For Provider purposes, Notices shall be sent to the email listed in the Schedule. For Protege purposes, Notices shall be sent to notices@withprotege.ai.
Relationship of parties. Neither party may assign or transfer this Agreement or any rights or delegate any duties herein without the prior written consent of the other party, which will not be unreasonably withheld, delayed, or conditioned. Notwithstanding the foregoing, and without gaining the other party’s written consent, either party may assign this Agreement, in whole or part, and delegate its obligations to its affiliates or to any entity acquiring all or substantially all of its assets or the assigning party’s entire business, whether by sale of assets, sale of stock, merger, or otherwise.
Subcontracting. Protege may subcontract all or part of its obligations under these Terms at Protege’s own discretion and without notifying Provider. Protege will bear the same degree of responsibility for acts and omissions of the subcontractors in the performance of their obligations under these Terms as it would bear if such acts and omissions were performed by Protege directly.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect.
Introduction. The Provider Terms (“Terms”) outlined here are entered into by and between Protege Health Inc. ("Protege"), and the organization or entity ("Provider") named in the Schedule, under which Provider will provide data sets and samples (the “Data”) on the Protege software application (“Platform”) to third party purchasers (“Consumers”). The Effective Date of the Terms is the Effective Date on the Schedule signed with Protege. These Terms and any Schedules comprise the “Agreement” between Provider and Protege. By signing a Schedule with Protege, Provider agrees to be bound by these Terms. If any provision of these Terms conflicts with a Schedule signed by Protege and the Provider, the Schedule supersedes and controls with respect to that provision.
Rights and obligations.
Platform provider rights and license grant. Provider represents and warrants that Provider has ownership, control, and responsibility for any Data that Provider makes available to Protege including all necessary licenses, registrations, rights, consents and approvals to use or disclose any Data, any personally identifiable information (“PII”), Protected Health Information (as defined under HIPAA), and any other information protected under the Health Insurance Portability and Accountability Act (“HIPAA”) or an equivalent state law. Provider represents and warrants that it uses commercially reasonable efforts to ensure that the Data is obtained from sources that are reputable and reliable, the Data does not violate any applicable laws or regulations and does not infringe or misappropriate any rights of any person or entity. Notwithstanding anything to the contrary in Section 1.3 (Use Restrictions) and Section 4 (Confidentiality), Provider grants Protege a worldwide, royalty-free and non-exclusive license to use, display, publish, reproduce, distribute and make derivative works of such Data in accordance with the terms of this Agreement and to provide Services on the Platform. This license expressly includes the right to sublicense such Data to Consumers in accordance with this Agreement.
Datasets. Provider agrees to provide the initial data sets included in the Schedule (“Data”) to be available within the Platform to Consumers.
Data licensing and use restrictions.
Rights granted to Consumers. When a Consumer purchases a license to use Data, Provider allows use of Data in accordance with the license type purchased by Consumer and any other terms expressly set forth in an agreement between Protege and Consumer. The default license granted by Protege permits the Consumer to use the licensed Data for the internal business purpose of developing an algorithm or model.
Prohibited Uses. For the avoidance of doubt, except as specifically provided with prior approval from Provider, Protege will not permit Consumer to: (i) attempt any re-identification of de-identified datasets, (ii) publish, disseminate, distribute, or provide access of any kind to the Data, or any material subset thereof, to any third party, (iii) sell, sublicense, loan, lease, assign, authorize others to access, use, disclose, or attempt to grant any rights to, the Data, or any material subset thereof, to third parties or (iv) make derivative data products from the Data.
Information provided by Protege. Provider may receive details about transactions, including Consumer name and Use Case, from Protege. Provider may use such information only for the purposes set forth in this Agreement.
Breach notification. If Protege becomes aware of a breach of security leading to accidental or unlawful destruction, loss, or alteration, unauthorized disclosure of, or access to, PII (as defined in Section 2) processed by Protege on behalf of Provider (a “Data Breach”), Protege will notify the Provider without undue delay and in any event, within 72 hours after becoming aware of such confirmed Data Breach and will cooperate with the Provider and take such reasonable commercial steps as agreed with the Provider to assist in the investigation, mitigation and remediation of such Data Breach.
Protege’s proprietary rights. Protege retains ownership of all of Protege’s intellectual property rights related to the Platform, Services, and materials that Protege produces, including all improvements to the Services and usage data about the Platform and Services. All rights not expressly granted are reserved and retained by Protege.
Confidentiality. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the disclosing party (“Disclosing Party”) or reasonably should be known by the receiving party (“Receiving Party”) to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information shall not include information that the Receiving Party can demonstrate: (i) was already known to it; (ii) became public knowledge through no fault of the Receiving Party; (iii) is lawfully obtained from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information (but not less than reasonable care) to (i) not use any Confidential Information for any purpose outside the scope of this Agreement, and (ii) to limit access to Confidential Information to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are bound by confidentiality obligations not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law to disclose Confidential Information, Receiving Party will provide advance notice to the Disclosing Party, if legally allowed.
Indemnification.
Indemnification by Provider. Provider agrees to indemnify, defend, and hold harmless Protege and its affiliates from and against any and all allegations, threats, claims, liabilities, expenses (including attorneys’ fees), suits and proceedings brought by a third party (each, a “Claim” and collectively, “Claims”) related to Provider’s use, inability to use, or misuse of the Platform and/or our Services, including but not limited to (i) alleging that the Data and/or Provider Materials infringe any intellectual property, privacy, publicity, or other rights of such third party, (ii) arising from or relating to Provider’s breach of this Agreement, or (iii) violation of any applicable federal, state, or local law or regulation.
Indemnification by Protege. Protege agrees to indemnify, defend, and hold harmless Provider and its affiliates from and against any and all Claims arising from any representations by Protege to Consumers regarding the Data that are not in accordance with the terms of this Agreement.
Indemnification procedures. If an indemnity obligation arises, the Indemnified Party will: (i) promptly notify the Indemnifying Party in writing of the Claim, (ii) allow the Indemnifying Party to control the defense and settlement of the Claim at its own expense, and (iii) provide necessary cooperation at the Indemnifying Party’s request and expense. Failure to notify does not relieve the Indemnifying Party of a Claim, except for costs incurred before notice or damages caused by delay or failure to provide notice. The Indemnifying Party may not settle a Claim that imposes obligations or admissions on the Indemnified Party without prior written consent, which will not be unreasonably withheld. Indemnification does not apply if the Indemnified Party settles or admits to a Claim without consent.
Warranty disclaimer. Except as expressly stated, the Platform and Services are provided "as is" and "as available”. Provider hereby disclaims any and all other warranties or guarantees of any kind, including but not limited to the implied warranties of merchantability, non-infringement, quiet enjoyment, and fitness for a particular purpose and expressly acknowledges that Protege: (i) has no responsibility for the acts or omissions of Consumers, other Platform providers, or the Data; and (ii) has no support, warranty, or other obligation (including for continued availability) for the Data. Provider assumes all responsibility for any damage resulting from the use of the Platform, Services, or Data, and Protege provides no guarantee of support or continued availability.
Limitation of liability.
Disclaimer. Subject to Section 6.3 (Exceptions), to the fullest extent of applicable law, Protege and Provider (including their affiliates, subsidiaries, contractors, licensors, officers, directors, agents, or employees) will have no liability arising out of or related to this Agreement for indirect, special, incidental, reliance, punitive, special, or consequential damages of any kind, even if informed of the possibility of such damages in advance, including loss of revenue, profits, data, benefits, or savings, whether or not due to the fault or negligence of the company or related parties. Provider may have the ability to communicate, interact, or otherwise connect with Consumers through our Services. Provider hereby releases Protege from any liability that may arise from Provider’s interactions with Consumers.
General cap. Subject to Section 6.3 (Exceptions), neither Protege’s nor Provider’s aggregate liability under these terms, whether such claim is based in contract, tort, or other legal theory, shall exceed two times (2x) the aggregate of all fees paid and payable to Provider for the Data in the twelve (12) months preceding the event giving rise to the damages.
Exceptions. The exclusions of or limitations on liability set forth in Sections 6.1 (Disclaimer) and 6.2 (General Cap) will not apply to damages or liability arising from a party’s gross negligence, willful misconduct, or fraud. The limitations on liability set forth in Section 6.2 (General Cap) will not apply to: (i) a party’s defense and indemnification obligations hereunder; (ii) a party’s breach of its confidentiality obligations under this Agreement; or (iii) Provider’s liability for infringement of intellectual property rights.
Termination.
Termination. Protege may, in its sole discretion, close or suspend Provider’s access to the Platform for any reason. Protege is not liable to Provider for any impact a change, suspension or discontinuation of our Services may have, including loss of income from Provider’s inability to license Data through Protege.
Survivability of data. Upon termination, Protege will no longer make Provider Data available for purchase or access by new Consumers who haven’t previously licensed the Data. Provider agrees to permit Consumers who have previously licensed the Data have access to that Data for an additional twelve months and to enable Consumers whose primary use is academic research to have access to that Data for an additional three years. Protege reserves the right to retain Provider’s information, including Data, for legal or regulatory compliance.
Survival. Sections 1.3 (Data Licensing and Use Restrictions); Sections 3 (Protege’s Proprietary Rights), 4 (Confidentiality), 5 (Indemnification), 7 (Limitation of Liability), and 9 (General Terms), together with all other provisions of this Agreement that may reasonably be interpreted or construed as surviving expiration or termination of this Agreement, will survive the expiration or termination of this Agreement.
General terms.
Applicable law. This Agreement will be governed by the laws of the State of Delaware and the United States without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods; and the jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in New Castle County, Delaware, and both Protege and Provider hereby submit to the personal jurisdiction of such courts.
Notice. Any notice required under the Agreement shall be sent in writing. Each Party consents to receiving electronic communications from the other Party. For Provider purposes, Notices shall be sent to the email listed in the Schedule. For Protege purposes, Notices shall be sent to notices@withprotege.ai.
Relationship of parties. Neither party may assign or transfer this Agreement or any rights or delegate any duties herein without the prior written consent of the other party, which will not be unreasonably withheld, delayed, or conditioned. Notwithstanding the foregoing, and without gaining the other party’s written consent, either party may assign this Agreement, in whole or part, and delegate its obligations to its affiliates or to any entity acquiring all or substantially all of its assets or the assigning party’s entire business, whether by sale of assets, sale of stock, merger, or otherwise.
Subcontracting. Protege may subcontract all or part of its obligations under these Terms at Protege’s own discretion and without notifying Provider. Protege will bear the same degree of responsibility for acts and omissions of the subcontractors in the performance of their obligations under these Terms as it would bear if such acts and omissions were performed by Protege directly.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect.
