Welcome to HumanFirst. Please read on to learn the rules and restrictions governing your use of HumanFirst’s Solutions. If you have any questions, comments, or concerns regarding these Terms or the Solutions, please contact us at [email protected].
PLEASE NOTE THAT YOUR USE OF AND ACCESS TO HUMANFIRST’S SOLUTIONS ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS (“Terms”).
Please read these Terms carefully; they are legally binding on you. If you are accepting these Terms or using the Solutions on behalf of an organization (e.g., your employer or client) (the “Organization”), you represent and warrant that you are authorized to agree to these Terms on the Organization’s behalf and bind the Organization to these Terms, and when these Terms refer to “you”, it means you individually, as the “Customer”, and the Organization. These Terms include the provisions in this document, as well as those in HumanFirst’s Privacy Policy.
We may provide you access to the Solutions pursuant to written or electronic subscription, license, services agreement, or order form agreed to by you and HumanFirst (each an “Agreement”). To the extent there is any conflict between these Terms and the terms and conditions set forth in an applicable Agreement, the terms and conditions of the Agreement shall control.
Definitions.
1.1
“Confidential Information” means any information disclosed by either party to the other party pursuant to these Terms that (a) is in written, graphic, machine readable, or other tangible form and is marked “Confidential,” “Proprietary,” or in some other manner to indicate its confidential nature, or (b) in the case of oral or visual disclosure is identified as confidential at the time of disclosure, or (c) under the circumstances should in good faith be considered to be confidential. Confidential Information includes, without limitation, information related to: research, product plans, products, developments, inventions, processes, designs, markets, business plans, agreements with third parties, services, customers, marketing or finances of either party, the content or existence of any negotiations, and pricing. Notwithstanding the foregoing, all technology or proprietary information underlying HumanFirst Data and the HumanFirst Platform shall be deemed Confidential Information of HumanFirst without any need for designating the same as confidential or proprietary; Organization Data shall be deemed Confidential Information of the Organization without any need for designating the same as confidential or proprietary.
1.2
“Customer” means an individual that creates an account for use of the HumanFirst Platform or to otherwise access a HumanFirst Solution, with or without an Agreement.
1.3
“Organization” means an entity, company, institution, or any other type of business or corporation with which a Customer is associated (e.g., the Customer’s employer or client).
1.4
“Organization Data” means any data or other content or information provided by or on behalf of Customer to HumanFirst via the HumanFirst Platform or another mean, which (a) would not otherwise be available to HumanFirst, independent of these Terms, such as information published on clinicaltrials.gov or in a journal publication, or (b) HumanFirst has not de-identified and/or aggregated, as set forth herein.
1.5
“HumanFirst Data” means data collected by HumanFirst from various sources and maintained in the HumanFirst database in de-identified and/or aggregate fashion, including but not limited to Organization Data, publications, and publicly available information, and made available to customers through the HumanFirst Platform and/or Reports.
1.6
“HumanFirst Platform” means the software-as-a-service made available to Customer by HumanFirst, which is hosted on servers under the control or direction of HumanFirst and provided for Customer to access and use via the internet, including any derivatives, improvements, enhancements, and/or extensions related thereto.
1.7
“Intellectual Property Rights” means all rights of the following types, under the laws of any jurisdiction worldwide: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, and moral rights; (b) trade secret rights; (c) patent and industrial property rights; (d) other proprietary rights of every kind and nature; and (e) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the above.
1.8
“License Term” means the license term set forth on the applicable Order Form, or if the term is not specified, a [12-month] term from the effective date of the applicable Order Form.
1.9
“Order Form” means an order for a HumanFirst Solution submitted by Customer to and accepted by HumanFirst that references to these Terms.
1.10
“Reports” means reports generated based on Organization Data or HumanFirst Data and/or through access to the HumanFirst Platform, excluding the templates of such reports.
1.11
“Solutions” means, collectively, the HumanFirst Platform, HumanFirst Data, Reports, and any other offerings provided by HumanFirst, which may also include professional services provided by HumanFirst.
HumanFirst’s Responsibilities.
2.1
Access. Subject to Customer's full compliance with these Terms, HumanFirst will provide Customer with access to the HumanFirst Platform during the License Term. HumanFirst may in its sole discretion modify, enhance, or otherwise change the HumanFirst Platform. HumanFirst may delegate the performance of certain portions of the HumanFirst Platform to third parties, including HumanFirst's wholly owned subsidiaries and providers of hosting services.
2.2
Passwords. HumanFirst reserves the right to periodically change issued passwords. HumanFirst will provide prompt notice to Customer of any such password changes.
Customer’s Responsibilities.
3.1
Equipment. Customer will be responsible for obtaining and maintaining at its expense all the necessary computer hardware, software, services, modems, connections to the internet, and other items operated or provided by third parties (“Third Party Services”) as required for Customer’s access and use of the HumanFirst Platform via the internet. HumanFirst is not responsible for the operation of any Third Party Services nor the availability or operation of the HumanFirst Platform to the extent that such availability and operation is dependent upon Third Party Services. HumanFirst does not make any representations or warranties with respect to Third Party Services or any third party providers.
3.2
No Personal Use. HumanFirst’s Solutions are not intended for personal use. As such, HumanFirst requires that you neither create an account for personal use nor use your personal email address to create an account. If HumanFirst reasonably believes that you signed up with a personal email address, HumanFirst may require you to transfer your access to an email address associated with your Organization. You acknowledge and agree that your use of an email address associated with an Organization for HumanFirst’s Solutions constitutes your acceptance that such use shall only be for, on behalf of, or in connection with your work or responsibilities for such Organization (the “Permitted Purposes”), and not for your personal purposes.
3.3
Organization Account. Before signing up, please contact your Organization to verify whether it has purchased any of the Solutions. If your Organization has an Agreement with HumanFirst, your use will be subject to the terms of that Agreement. If your Organization does not have an Agreement, you may use your email address associated with such Organization to sign up for HumanFirst’s Solutions and these Terms will govern. If your Organization later enters into an Agreement for the Solutions after you sign up, your use of the Solutions will be governed by the applicable Agreement.
3.4
Organization Rights to Information. You should be aware that information you share with us may be transferred over to your Organization, which may have certain rights over your information.
3.5
Unauthorized Use. Customer will use reasonable efforts to prevent any unauthorized use of the HumanFirst Platform, HumanFirst Data, or the Solutions, and will promptly notify HumanFirst in writing, by email to
[email protected], of any unauthorized use that comes to Customer’s attention and provide all reasonable cooperation to prevent and terminate such use.
3.6
Privacy Policy. Customer further acknowledges, agrees to, and is bound by HumanFirst’s Privacy Policy [
https://www.gohumanfirst.com/privacy-and-data-rights]
(as it may be updated from time to time), except to the extent expressly and directly in conflict with these Terms.
License Grants; Restrictions.
4.1
License to Customer. Subject to Customer’s full compliance with these Terms, HumanFirst hereby grants Customer a limited, non-exclusive, non-transferable (except as permitted under Section 16) license, without right of sublicense, during the License Term, to access and use the HumanFirst Platform solely for Customer’s own the Permitted Purposes or as set forth in an Agreement and solely for the Organization’s internal business purposes.
4.2
Organization Data Usage. Customer hereby grants HumanFirst a license to use Organization Data for the sole purposes of: (a) providing the HumanFirst Solutions to Customer; (b) aggregating and/or de-identifying Organization Data to create HumanFirst Data, and freely using and making available HumanFirst Data for HumanFirst’s business purposes (including without limitation, for purposes of industry benchmarking and improving, testing, operating, promoting, marketing, and providing HumanFirst’s products and services); and (c) enforcing its rights under these Terms.
4.3
License Restrictions. Customer shall not, and shall not permit any third party to: (a) decompile, disassemble, or reverse engineer the HumanFirst Platform, or otherwise attempt to discover the source code, object code, logic, process or underlying methodology, structure, ideas or algorithms of the HumanFirst Platform, or related trade secrets, or any software, documentation, or data related to the HumanFirst Platform; (b) use the HumanFirst Data or HumanFirst Platform (or any portion thereof) except to the extent permitted in Section 4.1, or other than (i) in accordance with these Terms and (ii) in compliance with all applicable laws and regulations; (c) modify or create any derivative work of any part of HumanFirst Data or HumanFirst Platform (or any portion thereof); (d) market, sublicense, publish, distribute, reproduce, resell, assign, transfer, rent, lease, loan, or otherwise permit third parties to use the HumanFirst Data or HumanFirst Platform (or any portion thereof); (e) use the HumanFirst Data or HumanFirst Platform (or any portion thereof) for commercial time-sharing or service-bureau use or for any purpose other than its own internal use; or (f) publish any results of benchmark tests run on the HumanFirst Platform.
4.4
Reservation of Rights. HumanFirst reserves all rights to the HumanFirst Data, HumanFirst Platform, and Solutions (or any portion thereof) not otherwise expressly granted in this Section 4.
4.5
Review of Publications; HumanFirst Attribution. In the event that Customer intends to include HumanFirst Data, Reports, and/or any derivative works thereof in abstracts, manuscripts, presentations, or other publications (collectively, “Publications”) by Customer or any third party and except as may be provided in an Agreement, any such Publication will be submitted by Customer or such third party for review by HumanFirst at least 72 hours prior to submission in order for HumanFirst to confirm appropriate use, characterization, attribution, and other information in respect of such HumanFirst Data, Reports, and/or any derivative works thereof for the Publication.
4.6
Audit. During the Term and a period of six (6) months following termination, HumanFirst will have the right to audit each Customer or Organization’s compliance with these Terms and with any applicable Agreement. Any such audit shall be upon reasonable prior written notice, at a mutually agreed time, during Organization’s business hours and subject to Organization’s applicable confidentiality obligations to third parties.
Reservation of Rights. HumanFirst reserves all rights to the HumanFirst Data, HumanFirst Platform, and Solutions (or any portion thereof) not otherwise expressly granted in this Section 4.
Payments and Taxes.
5.1
Fees. Without a written Agreement separately executed between the Organization and HumanFirst, Customer’s use of the HumanFirst Platform under these Terms is free. In the event that Customer selects a free plan in violation of the requirements set forth in these Terms, Customer will be invoiced as set forth on HumanFirst’s then-current pricing, and Customer agrees to pay such invoiced fees without any right of set-off or deduction. If not otherwise specified in an Agreement, payments will be due within thirty (30) days of Customer or Organization’s receipt of an invoice from HumanFirst. All payments shall be made in U.S. dollars in immediately available funds and are non-refundable. Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less.
5.2
Taxes. Customer shall pay any sales, use, value-added, property, and other taxes, withholdings and similar charges based on or arising from any applicable Fees (other than taxes based on HumanFirst’s net income).
Warranty Disclaimer. To the maximum extent permitted by applicable law, HumanFirst Data, HumanFirst Platform, and the Solutions, and all related information, technology, and services provided by or on behalf of HumanFirst are provided “as is,” “as available,” and without any representations or warranties of any kind, express or implied, and HumanFirst expressly disclaims any other warranties, express or implied, including without limitation warranties of merchantability, fitness for a particular purpose (even if advised of the purpose), accuracy, title, and/or non-infringement. In addition, HumanFirst does not warrant that access to the HumanFirst Data, HumanFirst Platform, and the Solutions will be uninterrupted or error free, that HumanFirst Data, HumanFirst Platform, and the Solutions will meet Customer’s needs, or that data will not be lost, or that HumanFirst Data, HumanFirst Platform, and the Solutions is free of viruses or other harmful components.
Term, Termination, and Survival.
7.1
Term. These Terms shall commence on the date a Customer accepts these Terms and ends when (i) terminated at any time by either party with or without cause upon five (5) days notice to the other party, or (ii) otherwise terminated pursuant to these Terms. If a Customer’s Organization has a separate written Agreement with HumanFirst, the terms of that Agreement shall govern.
7.2
Termination. In the case of a Customer whose Organization has entered into a written Agreement, unless otherwise specified in such Agreement, either party may terminate these Terms: (a) on thirty (30) days’ prior written notice if the other party materially breaches any of these Terms and such breach remains uncured thirty (30) days following such party’s receipt of the terminating party’s notice; (b) immediately on written notice if: (i) all or substantially all of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver or trustee in bankruptcy; (ii) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within ninety (90) days; or (iii) the other party is adjudged bankrupt or insolvent. Customers with free accounts may terminate their use of our Solutions at any time without written notice by ceasing their use of all Solutions. HumanFirst may suspend or terminate Customer’s free access to any and all of the HumanFirst Solutions immediately at any time upon notice to Customer for any breach of these Terms by Customer.
7.3
Survival. Upon termination of these Terms, all licenses granted to Customer and/or Organization hereunder shall immediately terminate. The following provisions shall survive any termination or expiration of these Terms: Sections 1, 4.2(b) and (c), 4.3, 4.4, 5, 6, 7.3, and 8 through 16 (inclusive).
Limitation of Liability. The aggregate liability of HumanFirst (or its licensors or suppliers) in connection with these Terms or its subject matter, however caused, and on any theory of liability, including without limitation contract, strict liability, negligence and/or other tort, shall in no event exceed five hundred U.S. Dollars ($500). In no event will HumanFirst (or its licensors or suppliers) be liable for any indirect, incidental, special, or consequential damages, including without limitation damages for loss of profits, revenue, data, or data use, even if advised of the possibility of such damages, including, without limitation, any liability related to the procurement of substitute goods. The foregoing limitations form an essential basis for these Terms and shall survive regardless of the failure of any remedy of its essential purpose.
Ownership.
9.1
HumanFirst’s Ownership Rights. Subject only to the limited license expressly granted under these Terms, as between HumanFirst and Customer, HumanFirst shall retain all right, title, and interest in and to the HumanFirst Data, HumanFirst Platform, Reports, and Solutions, excluding the Organization Data therein (which has not been aggregated and/or de-identified), and all Intellectual Property Rights therein. Nothing in these Terms will confer on Customer any right of ownership or interest in the HumanFirst Data, HumanFirst Platform, Reports, and Solutions, excluding the Organization Data therein (which has not been aggregated and/or de-identified), and all Intellectual Property Rights therein. To the extent Customer has or obtains any right, title, or interest in the HumanFirst Data, HumanFirst Platform, Reports, and Solutions, excluding the Organization Data therein (which has not been aggregated and/or de-identified), or any Intellectual Property Rights therein, Customer hereby assigns, and agrees to assign, without further consideration, to HumanFirst all such right, title, and interest Customer may have or obtain.
9.2
Organization’s Ownership Rights. Subject only to the limited license expressly granted hereunder, as between Customer and HumanFirst, Organization shall retain all right, title, and interest in and to the Organization Data, and all Intellectual Property Rights therein. Customer understands that once HumanFirst de-identifies Organization Data and/or aggregates Organization Data with other data, it becomes HumanFirst Data and is no longer under the Organization’s ownership or control. HumanFirst uses de-identified and/or aggregated data to improve its Solutions and/or provide Solutions for customers such as reports and analytics. In the event that a Customer is no longer associated with an Organization, that individual’s Organization Data shall be retained independent of such Customer’s account. Notwithstanding the foregoing, Customer acknowledges and agrees that if Customer uses the HumanFirst Platform for, on behalf of, or in connection with any Organization, such Organization may have certain rights over the Organization Data (such as the right to access, edit, export, or delete, or right to grant access to third parties) and may request HumanFirst to transfer the Organization Data for which it has rights from Customer’s individual account over to such Organization. Customer further acknowledges and agrees that Customer may be subject to any agreement Customer has entered into with their Organization, and any such agreement and/or their Organization, not these Terms or HumanFirst, decides and controls what rights such Organization may have over any Organization Data.
9.3
Feedback. Either party may voluntarily provide feedback, suggestions, ideas, enhancement requests, recommendations or other information (the “Feedback”) to the other about the other party’s Confidential Information and/or products and services. Each party shall be free to use or exploit the Feedback provided to it without further consideration or compensation to the other party.
Indemnification. Customer shall indemnify, defend, and hold HumanFirst and its affiliates, and its and their officers, members, directors, employees, agents, successors and assigns harmless from and against all liabilities (including liabilities arising out of the application of the doctrine of strict liability), obligations, losses, damages, penalties, fines, claims, actions, suits, judgments, costs, expenses, and disbursements (including reasonable legal fees and expenses and reasonable costs of investigation) (“Losses”) arising from an unaffiliated third party claim arising out of or resulting from Organization Data or from Customer’s unauthorized use or access of the Solutions. Customer shall not have any right, without HumanFirst’s written consent (which consent shall not be unreasonably withheld), to settle any such claim in a manner that does not unconditionally release HumanFirst.
Confidentiality.
11.1
Each party shall treat as confidential all Confidential Information of the other, shall not use such Confidential Information except as set forth in these Terms, and will not disclose such Confidential Information to any third party except as expressly permitted herein without the disclosing party’s written consent. The receiving party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the disclosing party’s Confidential Information, but in no event less than reasonable care. The receiving party shall promptly notify the disclosing party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In the event of any termination of access to the Solution, each party will either return or, at the disclosing party’s request, destroy the Confidential Information of the other party; provided however, that each receiving party may retain copies of the disclosing party’s Confidential Information for routine backup and archival purposes. Notwithstanding the foregoing, the obligations set forth in this Section 11.1 shall not apply with respect to any information to the extent that it is: (a) already in the possession of the receiving party without restriction prior to the first disclosure hereunder as shown by records or files; (b) is already or becomes generally available to the public after the time of disclosure other than as a result of any improper action by the receiving party; (c) was rightfully disclosed to it by a third party without restriction; or (d) is independently developed by either party without use of the Confidential Information from the other party. The receiving party may make disclosures required by law or court order provided that, if practicable, the receiving party provides adequate notice and assistance to the disclosing party for the purpose of enabling the disclosing party to prevent and/or limit the disclosure.
11.2
HumanFirst may disclose the disclosing party’s Confidential Information to HumanFirst employees, agents, consultants, or officers who have a need to know such information in order to enable HumanFirst in developing the Solutions (“Representatives”); provided, however, that (1) such Representatives must be bound by a written agreement or established professional responsibility standards containing confidentiality obligations no less restrictive than those set forth under these Terms and (2) HumanFirst shall be responsible for any unauthorized disclosure or use of the disclosing party’s Confidential Information by such Representatives.
Notices. All notices under these Terms will be in writing and will be deemed to have been duly given: when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail to
[email protected]; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
Governing Law, Jurisdiction, Venue, and Dispute Resolution. These Terms shall be construed in accordance with applicable U.S. federal law and the laws of the State of California without regard to conflict of laws principles. In the event a dispute arises out of or in connection with these Terms, the parties will attempt to resolve the dispute through good faith consultation. If the dispute is not resolved within a reasonable period, then any or all outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues shall be finally settled by arbitration in San Francisco, California, in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial contract disputes. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief. For all purposes of this Section 13, unless otherwise elected by HumanFirst in writing for a particular instance, the sole jurisdiction and venue for actions related to the subject matter hereof shall be the state or federal courts of San Francisco County, California, and both parties consent to the jurisdiction of such courts. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER AND HUMANFIRST IS EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Force Majeure. Other than for payment of money, a party shall be excused from any delay or failure in performance hereunder due to any labor dispute, government requirement, internet congestion or breakdown, or any other cause beyond its reasonable control.Other than for payment of money, a party shall be excused from any delay or failure in performance hereunder due to any labor dispute, government requirement, internet congestion or breakdown, or any other cause beyond its reasonable control.Other than for payment of money, a party shall be excused from any delay or failure in performance hereunder due to any labor dispute, government requirement, internet congestion or breakdown, or any other cause beyond its reasonable control.
Relationship of the Parties. The relationship between the parties shall only be that of independent contractors. Neither party is an agent, representative, partner, employer, or employee of the other party, and neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
General. Customer shall neither assign nor transfer any of its rights, obligations or benefits under these Terms to any third party without the prior written consent of HumanFirst, except that Customer may transfer the Organization Data to an Organization that has an Agreement with HumanFirst. HumanFirst may freely assign or transfer these Terms without the consent of the Customer. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, these Terms shall be binding upon and inure to the benefit of the parties and their successors and assigns. These Terms (including the Privacy Policy referenced herein) are the entire agreement between the parties hereto pertaining to access to the Solutions except where superseded by a written Agreement that is in effect. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of these Terms or of any subsequent default or breach of the same or different kind. All waivers under these Terms must be in a writing executed by a duly authorized representative of each of the parties. If any provision of these Terms is determined to be unenforceable, that provision will be replaced with the valid one that most closely achieves the parties' intent and the remainder of these Terms will remain enforceable. HumanFirst reserves the right to change these Terms at any time upon prior notices to Customer. Customer may opt out of the changes within 30 days after the notice, in which event Customer may not be able to use certain updated features of the Solutions. Customer's continued use of the Solutions after the 30-day period shall constitute Customer’s acceptance of the changes. Except for changes by HumanFirst as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both parties.
