License Agreement

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THE SPARKL® LICENSE AGREEMENT

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This SPARKL® License Agreement (hereinafter “Agreement”) is a legal contract between you (either an individual or a single business entity, hereinafter referred to as “Licensee”) and SPARKL Limited, a United Kingdom limited liability company (hereinafter “SPARKL”), for the SPARKL software (the “Software”) in object code only.

The term “Software” also includes any supplied corrections, bug fixes, enhancements, updates or other modifications created and supplied by SPARKL and any user manuals or other documentation supplied by SPARKL in conjunction with the Software.

BY TYPING THE WORD “AGREE”, OR BY CLICKING THE BUTTON MARKED “AGREE” BELOW, OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.

1. LICENSE TERMS

1. Grant of License. Provided that Licensee is in material compliance with the terms and conditions of this Agreement, Licensor hereby grants to Licensee, pursuant to the terms and conditions of this Agreement, a nonexclusive, nontransferable license (hereinafter “License”) to use the Software.

2. Authorized Use. Licensee shall use the Software only to provide access to the IRB information managed and maintained by SPARKL for and on behalf of Licensee. The License granted hereunder allows Licensee to use the Software to manage, update, and maintain information related to any IRB study or studies being conducted by Licensee or any Licensee affiliate where SPARKL is also providing IRB-related services to Licensee (“SPARKL Study”).

3. Restrictions on Use. Licensee agrees to use the Software only for Licensee’s own business, including in conjunction with it affiliates or partners that are duly registered and participating in any Licensee sponsored SPARKL Study. Under no circumstances shall Licensee (i) permit any unrelated third parties to use the Software, (ii) process or permit to be processed the data of any other party, or (iii) use the Software in the operation of a service bureau.

4. Modifications; Reverse Engineering. Licensee agrees that only Licensor shall have the right to alter, maintain, enhance or otherwise modify the Software. Licensee shall not disassemble, decompile or reverse engineer the Software or attempt to do the same. Licensee shall not permit or assist any third party to disassemble, decompile or reverse engineer the Software.

5. Material Terms and Conditions. Licensee specifically agrees that each of the terms and conditions of this Section 1 are material and that failure of Licensee to comply with these terms and conditions shall constitute sufficient cause for Licensor to terminate this Agreement. The presence of this Subsection 1.e shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either Party.

6. Reservation of Rights. Licensor hereby reserves any and all rights not expressly and explicitly granted in this Agreement, including, but not limited to, Licensor’s right to license the Software to any third party.

7. Term of License. Unless otherwise terminated as set forth herein, the term of the License granted hereunder shall extend until the completion or termination of all Licensee sponsored SPARKL Studies. Licensee may terminate this License at any time by discontinuing its use of the Software.

8. Representations by Licensee. By accepting this Agreement and/or by using the Software, Licensee hereby represents and warrants that all information provided by Licensee to Licensor during the registration process for the Software is true and accurate in all material respects. Licensee further represents and warrants that Licensee has been duly authorized to enter into this Agreement for and on behalf of any person, company, or other entity specified during the initial registration process for the Software. Should either of these representations prove false at any time, Licensor may, in Licensor’s sole discretion, immediately discontinue Licensee’s access to and disable Licensee’s use of the Software without notice and without recourse by Licensee.

2. INTELLECTUAL PROPERTY RIGHTS

1. Title. Licensee and Licensor agree that Licensor owns all proprietary rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software and any corrections, bug fixes, enhancements, updates or other modifications, including custom modifications, to the Software, whether made by Licensor or any third party. No title to the Software is transferred hereby and Licensee’s rights hereunder are strictly limited as set forth herein.

2. Transfers. Under no circumstances shall Licensee sell, license, publish, display, distribute, or otherwise transfer to a third party the Software or any copy thereof, in whole or in part, without Licensor’s prior written consent.

3. WARRANTY; DISCLAIMER OF WARRANTIES
  1. Warranty. Licensor warrants to Licensee that the Software will at all times substantially comply with SPARKL's then current specifications for the Software.
  2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE ARE NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO TITLE OR INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE, DOCUMENTATION AND OTHER FILES ARE PROVIDED “AS IS.” SPARKL AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to Licensee. This warranty gives Licensee specific legal rights, and Licensee may also have other legal rights, which vary from jurisdiction to jurisdiction.

4. LIMITATION OF LIABILITY: IN NO EVENT WILL SPARKL BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, ARISING FROM THE USE OF OR INABILITY TO USE THE SOFTWARE OR FROM ANY BREACH OF WARRANTY, EVEN IF SPARKL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5. GENERAL PROVISIONS

  1. Modifications. SPARKL may alter or revise the terms of this Agreement by giving Licensee thirty (30) days notice of the changes to be made. If Licensee does not agree to accept the changes, Licensee’s sole remedy shall be to discontinue Licensee’s use of the Software.
  2. Governing Law/Venue/Jurisdiction. This Agreement shall be governed by and construed under the laws of the United Kingdom, without regard to choice of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Venue and jurisdiction shall be proper only in the United Kingdom and each party hereby consents to such exclusive and personal jurisdiction and venue.
  3. Termination. Without prejudice to any other rights, SPARKL may terminate this Agreement if Licensee fails to comply with the terms and conditions of this Agreement. In such event, SPARKL may deny access to the Software and Licensee must discontinue use of the Software.
  4. Severability. Except as otherwise set forth in this Agreement, the provisions of this Agreement are severable, and if any one or more such provisions shall be determined to be invalid, illegal or unenforceable, in whole or in part, the validity, legality and enforceability of any of the remaining provisions or portions thereof shall not in any way be affected thereby and shall nevertheless be binding between the parties hereto. Any such invalid, illegal or unenforceable provision or portion thereof shall be changed and interpreted so as to best accomplish the objectives of such provision or portion thereof within the limits of applicable law.
  5. Complete Agreement. The parties agree that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the parties relating to the subject matter.
  6. Waiver. Any waiver, either expressed or implied, by either party of any default by the other in the observance and performance of any of the conditions and/or covenants of duties set forth herein shall not constitute or be construed as a waiver of any subsequent or other default.
  7. Read and Understood. Licensee hereby acknowledges that it has read and understands this Agreement and agrees to be bound by its terms.
  8. Headings. The headings to the Sections and Subsections of this Agreement are included merely for convenience of reference and shall not affect the meaning of the language included therein.