Solomon and Study Participant (Participant) agree that the Subscription Agreement (Agreement) forms a binding contract between the two companies pursuant to the terms and conditions listed in this Agreement. This Agreement demonstrates our commitment to require the same information and participation from each subscriber, and to provide identical services to each. Solomon is willing to accommodate purchase orders that may be a part of a Participant’s invoice payment system; however, the terms of this Agreement shall govern and supersede any and all terms and conditions of the Participant’s purchase order. Participants who require amendments to this Agreement will be subject to additional fees to cover the costs of preparing and executing the contract, and for delay in payment of subscription fees.
1. Solomon shall provide the services described in this Agreement in a workmanlike manner with the care, skill, and diligence normally provided by competent professionals performing similar work. Solomon warrants that the media on which the Software (as defined below) is delivered is free from defects in materials or workmanship for 30 days from receipt. Solomon warrants that the Software will work substantially as documented in the Product User’s Manual for 30 days from receipt. If an error is found, Solomon shall, as Participant’s exclusive remedy for any breach of warranty, use its best efforts to correct the Software defect.
THE EXPRESS WARRANTIES SET FORTH IN THIS PROVISION ARE EXCLUSIVE AND NO OTHER WARRANTIES OF ANY KIND, WHETHER STATUTORY, ORAL, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY. PARTICIPANT’S EXCLUSIVE REMEDIES AND SOLOMON’S ONLY OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH DEFECTIVE GOODS OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE THOSE STATED ABOVE.
2. Raw data submitted by the Participant is the property of the Participant, but Participant grants to Solomon the right to use such data in Solomon’s Comparative Performance AnalysisTM (CPATM) and Solomon Profile® II databases. Any method, technique, skill, invention, or other intellectual property developed by Solomon in the performance of this Agreement—as well as any reports, recommendations, materials, results, metrics, rates, aggregates, or factors produced by Solomon in connection with this Agreement (whether or not based on submitted raw data)—are the exclusive property of Solomon. Works created by the Participant or others which are derived from or based upon the foregoing are also the exclusive property of Solomon. Pre-existing Solomon property, such as input forms, remains exclusive Solomon property. Any reports, recommendations, or materials provided to the Participant are for the Participant’s internal use only and neither the reports, recommendations, or materials nor their contents may be published or otherwise communicated to third parties, including without limitation, the Participant’s affiliates, without the express written permission of Solomon. Solomon may place on any such materials a legend or disclaimer consistent with these terms.
3. All data, reports, material and information provided by Solomon in connection with this Agreement are provided without warranting such data, reports, material, and information or the use thereof, and Solomon assumes no liability for Participants’ or any third parties’ application of the results of the data, analysis, or results.
UNDER NO CIRCUMSTANCES SHALL SOLOMON BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT. SOLOMON’S LIABILITY UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, IS LIMITED TO AND SHALL NOT EXCEED THE FEES PAID TO IT PURSUANT TO THIS AGREEMENT BY ANY PARTICIPANT OR THIRD PARTY WHO MAY BE CLAIMING DAMAGES.
4. Solomon shall protect the confidentiality of Participant data using industry standard methods, but nothing in this Agreement shall apply to, limit, or deny Solomon’s right to use or disclose any information (i) known to Solomon at the time of disclosure or thereafter lawfully obtained from third parties, (ii) which at the time of disclosure or thereafter becomes publicly available through no violation of this Agreement by Solomon, (iii) that was independently developed by Solomon, or (iv) if Solomon is compelled to disclose such information pursuant to judicial or other compulsory process. Solomon may use and retain (notwithstanding anything in this Agreement to the contrary) data derived from Participant’s data for statistical use as long as no identifying information (such as name, serial number, or street address) is included. Information accumulated by Solomon from third parties and/or public records in performance of its services is not and shall not be considered to be confidential or proprietary information of any of its clients.
5. The terms and conditions of this Agreement shall apply to and control all transactions in connection with the subject matter of this Agreement, notwithstanding the terms and conditions contained in any purchase order, acknowledgement, invoice, or any other document not signed by both parties.
6. This Agreement constitutes the entire understanding of the parties with regard to the subject matter hereof, and all prior agreements, written or verbal, are merged herein and superseded hereby. This Agreement may not be amended or modified except by written instrument signed by both parties.
7. All invoices not paid in full to Solomon within thirty (30) days from the invoice date shall be past due and shall bear as a late fee interest from the due date until paid at the rate of 1-1/2% per month or the highest rate permitted by applicable law, whichever is lower. All payments shall be applied first to accrued interest and the balance to any unpaid invoices with the oldest such invoices paid first. Notwithstanding the forgoing, if Solomon should ever receive an amount of interest that would exceed the highest lawful interest rate, such excess amount shall be applied to the balance of any unpaid invoices owed to Solomon. Any remainder of such excess shall then be refunded. Solomon may terminate this Agreement and your participation in the study to which it relates upon your failure to make any payment when due, or otherwise in its sole discretion.
8. Any term of this Agreement found to contravene a jurisdiction’s law will be deleted without affecting the remaining terms. Any waiver by Solomon of a breach of this Agreement shall not constitute a waiver of any later breach. No legal action arising out of this Agreement may be started more than one-year after the cause of action has accrued. In any legal action to enforce this Agreement, the prevailing party shall be entitled to recover reasonable expenses and attorney’s fees.
9. Upon and notwithstanding the termination or expiration of this Agreement, the provisions of this agreement shall remain effective to the extent necessary to govern the post termination rights of the parties.
10. In the event that the Participant seeks to claim income tax treaty benefits or other tax benefits in a foreign country because of Solomon’s status as a United States resident for United States income tax purposes, the Participant shall indicate the need for a Certificate of Residency (Form 6166) from the Internal Revenue Service in the section provided in the Subscription Agreement at time of submission of the Agreement. If the Participant does not provide Solomon with such evidence, then Solomon may, at its option, increase the Total Subscription Cost by 5% to cover any delays in receiving payment.
11. Solomon requires that Participants pay the entire subscription price prior to release of any study results, including their individual participant results, study average data, and any presentation of the results.
12. In the event that the Participant withdraws from the study after December 1st of the operating year of the study, Solomon shall, at its option, retain any fees paid to cover the cost of providing data coordinator seminars, data collection forms, software, and support to the Participant.
13. Solomon requires that Participants submit their input data as defined in the schedule. Submissions received more than two (2)-weeks after this date are subject to a late penalty that is 25% of the site fee. Submissions received more than four (4)-weeks after the due date are subject to a late penalty that is 50% of the site fee. Late fees may also apply if responses to validation questions significantly exceed the requested response date. Solomon has no obligation to compete validation or submit results for a site that has not submitted data by end of the year in which study results are typically delivered.
14. This Agreement shall be governed by, construed, and enforced in accordance with the substantive law of the State of Texas, USA. Exclusive venue and jurisdiction for any action arising out of this Agreement lie with the Courts of the State of Texas or within the Courts of the United States of America located within the Northern District of Texas, Dallas Division, both in Dallas County, Texas.
15. The fees are typically “net of taxes” in the Participants’ locality and country.
16. Solomon Profile II is intended to be a subscription service. As part of Profile II, Solomon includes data selection and viewing software, hereinafter referred to as “Software.” Solomon grants Participant a non-exclusive license to use the provided Profile II software (with any updates, the “Software”) and the user’s manual and other associated documentation (the “Documentation”) at no cost as part of the Subscription. Participant acquires no right to transfer, sublicense, or distribute the Software or Documentation, and agrees not to decompile, disassemble, or reverse engineer the Software. Participant may use the Software and Documentation on any of Participant’s computers. No one outside of Participant’s company may use the Software or Documentation. Participant may not decompile, disassemble, or cross-compile the Software; merge or embed the Software into another program (unless a specific licensing arrangement has been purchased); or otherwise modify or alter the Software or Documentation.
17. Solomon is, and remains, the owner of the Software and Documentation. The Software and Documentation contain confidential unpublished information protected by copyright, trade secret, trademark, and servicemark laws. Participant shall prevent any unauthorized use, copying, or disclosure of the Software and Documentation.
18. Notwithstanding any such termination, Solomon will continue to provide subscription services to the Participant for the annual term for which Participant has paid in full. Solomon may terminate this agreement and cease providing services hereunder immediately upon Participant’s failure to pay any invoice when due. The software license granted herein shall automatically terminate upon the termination or expiration of this agreement, and all software must be deleted from the Participant’s hardware and the associated media must be destroyed.
