Cogstate Research™ Terms of Use
Effective Date: 6 June 2018
1. Terms of Use
This Agreement sets forth the contractual terms and conditions (the “Research Terms of Use”) according to which you (the “User”) are permitted to use the Cogstate Research™ software (the “Research Software”) owned and operated by COGSTATE LTD and its affiliates (collectively, “COGSTATE”) in your academic study (the “Study”).
In order to use the Research Software, User is required to register via the COGSTATE website by providing a limited amount of personal and study-specific information. User’s registration and use of the Research Software constitutes User’s acceptance of these Research Terms of Use and agreement to be bound thereby. User’s provision of personal and study-specific information through the registration process, and access to and use of the Research Software and any information contained within the Website or otherwise provided by COGSTATE is entirely voluntary. If User does not wish to be bound by these Research Terms of Use, User must not register or use the Research Software.
2. Eligibility
The Research Software is made available by COGSTATE strictly and exclusively to support legitimate academic (non-commercial) research. The Study must, by way of example but not limitation: (a) be funded by an academic entity; (b) not form part of a submission to a regulatory entity (e.g., the FDA); (c) be undertaken with the intent to publish; and (d) not be restricted in terms of publication imposed by a for-profit company. User hereby warrants that the Study meets at least the preceding criteria and that it will respond to any reasonable request by COGSTATE for evidence of such compliance. If it is determined by COGSTATE, at its reasonable discretion, that the Study is not a legitimate academic (non-commercial) research study, User agrees to pay COGSTATE the price differential for a commercially sponsored study, as calculated with reference to COGSTATE commercial pricing at the time of calculation.
3. Not a medical device
The Research Software and the results generated by the Research Software are provided for purposes of academic research only. Neither the Research Software nor the results generated by the Research Software are designed or intended to provide medical advice, a medical diagnosis, or be used for therapeutic purposes or as a substitute for the advice of a health professional.
The Research Software is designed only to provide a simple measure of cognitive function and to assist you in measuring and assessing changes in cognitive function over time. Cognitive function can change for many reasons, including but not limited to, lack of sleep, impairment due to substance abuse, distraction, and many other reasons that have nothing to do with injury or disease. Research Software provides no guidance as to the cause of any change in cognitive function and cannot be used to diagnose an injury or any other medical condition.
4. Disclaimer of Warranties; Limitation of Liability
Transmission of personal and study-specific information provided for registration via the website is affected through media connections beyond the control and supervision of COGSTATE. COGSTATE disclaims any and all liability for or relating to the delay, failure, interruption, corruption or loss of any data transmitted in connection with use of the website or the Research Software.
The website, the Research Software and results generated by the Research Software, are provided on an “as is,” “where is” basis.
IN NO EVENT SHALL COGSTATE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, GOODWILL, SHAREHOLDER CONFIDENCE OR SIMILAR REMOTE DAMAGES, ARISING OUT OF OR IN ANY WAY RELATED TO THE RESEARCH TERMS OF USE, THE RESEARCH SOFTWARE OR ANY SERVICES PROVIDED HEREUNDER, EVEN IF COGSTATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. COGSTATE’S LIABILITY FOR DAMAGES UNDER THESE TERMS OF USE OR FOR ANY RELATED SERVICES SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY USER HEREUNDER.
5. Use of the Research Software
COGSTATE hereby grants to User and User hereby accepts a non-exclusive, non-transferable, revocable, limited license to use the Research Software for the sole purpose of carrying out the Study. User is permitted to make copies of the results generated by the Research Software as required by the Study. User hereby agrees that it shall not, directly or indirectly, (a) copy, sell, assign, lease, rent, redistribute, commercially exploit or deal with the Research Software other than as expressly permitted by these Research Terms of Use; (b) port, reverse engineer, reverse assemble or reverse compile the Research Software, or otherwise attempt to derive source code or object code from the Research Software; (c) attempt to break or bypass the encryption/decryption scheme/s used by the Research Software, nor to identify, directly or indirectly any cryptographic keys used by COGSTATE whether within the Research Software or in the analysis of data generated by the Research Software; (d) alter, modify or change the Research Software or the source code or object code underlying the Research Software in any respect or, (e) use the Research Software for comparisons, validations or “benchmarking” with respect to an unaffiliated party’s software except with the express written consent of COGSTATE.
User hereby agrees that COGSTATE may identify User as a user of the Research Software.
6. Ownership of Intellectual Property.
The Research Software, the website, the form of the results generated by the Research Software and many or all of the other materials provided by COGSTATE hereunder are protected by the laws of the United States and foreign countries regarding, without limitation, copyrights and trademarks. User hereby confirms that all right, title and interest in and to the Research Software, the website, the form of the results generated by the Research Software and such other materials provided by COGSTATE hereunder, and all intellectual property rights therein (including, without limitation, any and all patent rights), are and shall remain proprietary to COGSTATE. Any use of the Research Software, the website, the results generated by the Research Software or the materials not expressly permitted by these Research Terms of Use constitutes a breach of these Research Terms of Use. For greater certainty, User hereby agrees never to copy or make use of all or any portion of the Research Software or the website, any trademarks associated with the Research Software or the website (or any marks confusingly similar thereto), or any such material or information without the prior written consent of COGSTATE. Further, User hereby agrees never to produce derivative works of the Research Software or the website. User hereby agrees that failure to abide by these Research Terms of Use constitutes a breach of these Research Terms of Use and may result in liability for copyright infringement, trademark infringement, or the violation of any other laws (including intellectual property laws). In the event User violates any of these Research Terms of Use, User’s license to use the Research Software and the results generated by the Research Software shall automatically and immediately terminate.
Notwithstanding anything herein to the contrary, in consideration for the use of the Research Software provided by COGSTATE to User hereunder, and subject to the terms, conditions, and restrictions set forth in the Research Terms of Use, User is the owner of all cognitive testing data produced by use of the Research Software in the User’s Study (“Cognitive Testing Data”). User hereby grants to COGSTATE a non-exclusive, world-wide, perpetual, irrevocable, royalty-free and sub-licensable license to use any and all de-identified Cognitive Testing Data for purposes of COGSTATE’s own research and development, including but not limited to, the use of de-identified Cognitive Testing Data to expand COGSTATE’s normative datasets. User hereby represents and warrants that it has obtained all rights, consents and permissions necessary to grant this license to COGSTATE. User will deliver to COGSTATE a full dataset of the de-identified Cognitive Testing Data within thirty (30) days of the end of the Study.
7. Privacy and Submission of Personal Information
Registering to use the Research Software requires User to submit a limited amount of Personal Information (as defined in the COGSTATE RESEARCH Privacy Policy) to COGSTATE. The submission of such Personal Information by you and COGSTATE’s use and retention of such Personal Information is governed by the terms of the COGSTATE Privacy Policy, available at https://www.cogstate.com/privacy-policy/. In the event of an inconsistency between the terms of conditions contained in this Research Terms of Use and those contained in the COGSTATE Privacy Policy, the terms and conditions of this Research Terms of Use shall control.
8. Issuance and Use of the COGSTATE Password
Upon registering to use the Research Software, User will choose and register with COGSTATE a unique password which will enable User to use the Research Software and access the results generated by the Research Software. This password will also allow User to provide and store certain information. Once a password has been created, User shall be solely responsible for taking all reasonable steps to ensure that no unauthorized person gain access to the password. User shall be solely responsible for the safekeeping of the password, authorizing use of such password, contacting COGSTATE immediately upon learning of any misappropriation of such password and/or requesting deactivation of the password. User hereby grants COGSTATE and all other persons or entities involved in the operation of the Website the right to transmit, monitor, retrieve, store, and use this information in connection with the operation of the Research Software.
9. Indemnification
User expressly agrees that the results of the Research Software are intended to be used solely for the purposes of the Study. They are not intended to provide medical advice, diagnose whether a person is suffering from dementia or has suffered an injury, or as a substitute for the advice of a health professional.
You expressly agree to defend, indemnify, and hold harmless COGSTATE, its affiliates, and their respective officers, directors, shareholders, agents, licensors, suppliers, successors and assigns harmless from and against any third party claims, actions or demands, liabilities and settlements including without limitation, reasonable attorney’s and accounting fees, resulting from, or alleged to result from: (a) any breach of these Research Terms of Use, regardless of whether such breach is intentional, negligent or inadvertent, (b) User’s negligence or willful misconduct; or (c) User’s violation of any applicable law, rule or regulation.
10. General
These Research Terms of Use and the rights, obligations, liabilities, and responsibilities of the parties hereto, shall be governed and interpreted by the laws of the State of New York and the federal laws of the United States applicable therein, without regard to conflict of laws principles and regardless of the location from which the website is accessed or the Research Software is used. User hereby irrevocably consents to the personal and exclusive jurisdiction of the courts located within the State of New York.
User shall conduct the Study in compliance with all applicable domestic and international laws, rules and regulations, including but not limited to the U.S. Foreign Corrupt Practices Act (“FCPA”) and other applicable anti-bribery laws bearing on the performance of this Agreement or in any manner affecting the Services or this Agreement, the U.S. Food, Drug and Cosmetic Act, Health Insurance Portability and Accountability Act (“HIPAA”), the EU Data Protection Directive, the General Data Protection Regulation, and the regulations promulgated pursuant thereto, as amended from time to time, and with the standard of care customary in the industry.
User hereby agrees and acknowledges that all notices sent to User for any reason, may be sent via email. Notice will be deemed to have been given 24 hours after the e-mails have been sent and it is User responsibility to ensure that COGSTATE has a current and operational email address for User.
Should User have any questions or concerns regarding these Research Terms of Use, User may contact COGSTATE’s Chief Privacy Officer: via email at: pr*****@co******.com; via telephone at +1.203.773.5010; or via mail at COGSTATE INC., 195 Church Street, 4th Floor, New Haven, CT 06510, USA.
The waiver by either party of any default or breach of these Research Terms of Use will not constitute a waiver of any other or subsequent default or breach. No act, delay or omission on the part of either party hereto will be deemed a waiver unless expressly made in writing.
These Research Terms of Use constitute the complete agreement between the parties hereto and supersede all prior or contemporaneous agreements or representations, whether written or oral, concerning the use of the Research Software or the results generated by the Research Software. The Research Terms of Use may be modified or amended by COGSTATE from time to time, provided that COGSTATE notifies you of such modification, at which time User shall either accept such modifications or promptly de-activate their account. User shall be responsible for reviewing and becoming familiar with any such modifications and User’s continued use of the Research Software following such notification constitutes User’s acceptance of the Research Terms of Use as modified.
The individual signing these Research Terms of Use hereby personally warrants his or her legal authority to bind that entity and has indicated their acceptance of the Research Terms of Use as of the Effective Date.
