Lymphedema

LYMPHEDEMA SYMPTOM INTENSITY AND DISTRESS SURVEY (LSIDS)

END USER LICENSE AGREEMENT

This End User License Agreement (the “Agreement”) by and between VANDERBILT UNIVERSITY, a Tennessee non-profit corporation, having its principal place of business at 1207 17th Avenue South, Suite 105, Nashville, Tennessee 37212 (“Vanderbilt”), and You (“Licensee”) constitutes a legally binding agreement and governs your and your organization’s use of the Copyrighted Works (as defined below).

1. Definitions.

1.1 “Copyrighted Works” means the Lymphedema Symptom Intensity and Distress Surveys (LSIDS) licensed by Vanderbilt to Licensee.

 1.2 “Derivative Works” shall mean any derivative works as defined by US Copyright Laws in 17 USC §101, regardless of authorship.

1.3 “Licensee Registration Page” means the portion of the http://lymphedemaresources.vueinnovations.com website used by Licensee to enter information permitting the licensing of the Copyrighted Works.

1.4 “License Fee” means the fee paid by Licensee in U.S. dollars as set forth in the Licensee Registration Page for the license granted. Licensee is responsible for any and all taxes.

2. Copyrighted Works License; Restrictions.

2.1 License. Subject to the terms and conditions of this Agreement and payment of the License Fee, Vanderbilt hereby grants to Licensee, and Licensee hereby accepts, a limited, non-transferable, non-exclusive right and license to reproduce and distribute the Copyrighted Works solely for the research study listed in the Licensee Registration Page subject to the restrictions set forth in this Agreement and for the Term of the Agreement. The Copyrighted Works provided hereunder is proprietary to Vanderbilt and title thereto remains in Vanderbilt. Other than the rights in and to the Copyrighted Works granted to Licensee hereunder, Licensee acquires no rights in the Copyrighted Works, including patents, copyrights, trademarks and trade secrets, if any, embodied therein.

2.2 Restrictions on Use. Licensee shall not do or attempt to do any of the following: (i) modify or adapt the Copyrighted Works or any part; (ii) create Derivative Works based on the Copyrighted Works; (iii) sublicense, rent, lease, lend, export or otherwise transfer the Copyrighted Works to any third party or to use in any country where prohibited by applicable law; (iv) reproduce the Copyrighted Works, except for the limited purpose of generating sufficient copies for use under the license granted herein and for backup purposes. (v) remove or permit to be removed any labeling required by applicable U.S. law or other proprietary, confidential, or copyright notices, markings, or legends. Licensee shall only use the Copyrighted Works in accordance with applicable federal, state and local laws and regulations. Licensee agrees and acknowledges that the Copyrighted Works requires the Licensee to exercise independent, clinical judgment in the delivery of patient care. Licensee further agrees that nothing in the Copyrighted Works or anything else provided pursuant to this Agreement constitutes or is intended to be professional medical advice or a substitute for medical knowledge or judgment. Vanderbilt assumes no liability or responsibility for the decision to provide a particular treatment, instruction or prescription to a particular patient. Licensee shall defend, indemnify and hold Vanderbilt and its officers, trustees, faculty, staff, employees, students, agents and their respective successors or assigns harmless from and against all claims, liabilities and expenses (including reasonable attorneys’ fees) related to any third-party claims against Vanderbilt and its successors or assigns with respect to the matters set forth in this Section 2.2. This indemnification obligation shall survive the termination or expiration of this Agreement.

3. Publication Citations. Any publication by Licensee utilizing the Copyrighted Works shall include the appropriate citations as listed below:

LSIDS Arm v2.0: Ridner SH, Dietrich MS. Development and validation of the Lymphedema Symptom and Intensity Survey-Arm. Support Care Cancer. 2015 Oct;23(10):3103-12. PMID: 25752884.

LSIDS Lower Limb v1.0: Ridner SH, Doersam JK, Stolldorf DP, Dietrich MS. Development and Validation of the Lymphedema Symptom Intensity and Distress Survey-Lower Limb. Lymphat Res Biol. 2018 Dec;16(6):538-546. PMID: 30359205.

LSIDS Truncal v1.0 and LSIDS Head & Neck v2.0:  Ridner SH, Deng J, Doersam JK, Dietrich MS. Lymphedema Symptom Intensity and Distress Surveys-Truncal and Head and Neck, Version 2.0. Lymphat Res Biol. 2021 Jun;19(3):240-248. PMID: 33181059.

4. Limited Warranty; Disclaimers; Limitations of Liability.

4.1 Limited Warranty. EXCEPT AS STATED IN THIS SECTION 4.1, THE COPYRIGHTED WORKS IS PROVIDED “AS IS” AND WITHOUT WARRANTY, Vanderbilt warrants that it has the authority to grant the licenses contained in this Agreement. This warranty shall remain in effect provided that the Licensee is not in breach of any provision of this Agreement.

4.2 Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY SET FORTH IN SECTION 4.1 IS IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS. VANDERBILT DOES NOT MAKE AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE COPYRIGHTED WORKS AND SUPPORT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER VANDERBILT KNOWS OR HAD REASON TO KNOW OF LICENSEE’S PARTICULAR NEEDS. NO EMPLOYEE, AGENT, DEALER OR DISTRIBUTOR OF VANDERBILT IS AUTHORIZED TO MODIFY THE LIMITED WARRANTY, OR TO MAKE ANY ADDITIONAL WARRANTIES. SOME COUNTRIES AND STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS, AND LICENSEE MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY OR STATE TO STATE.

4.3 Limitation of Liability. Vanderbilt’s entire liability and Licensee’s exclusive remedy for a breach of this Agreement shall be termination of this Agreement by returning or destroying the Copyrighted Works and Vanderbilt refunding the License Fee. Vanderbilt shall have no liability for consequential, exemplary, indirect, special or incidental damages whether based on contract, tort or any other legal theory, arising out of or related to this Agreement or the inability to use the Copyrighted Works, nor shall Vanderbilt be liable for any loss of data or lost profits of Licensee, even if Vanderbilt is apprised of the likelihood of such damages occurring. Vanderbilt’s total liability under this Agreement for any reason shall not exceed the amount of the License Fees paid under this Agreement. Licensee acknowledges and agrees that licensing the Copyrighted Works for the License Fees under this Agreement reflects the allocation of risks expressed by (but not limited to) the above limitations of liability. Modification of such allocation would affect the License Fees charged by Vanderbilt, and in consideration of Vanderbilt charging the License Fees, Licensee agrees to such allocation of risks. SOME COUNTRIES OR STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY.

5. Assignment.

Licensee shall not assign or transfer this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Vanderbilt. Vanderbilt may assign its rights or obligations hereunder without the consent of or notice to Licensee. This Agreement shall inure to the benefit of and bind successors and permitted assigns of Vanderbilt and Licensee.

6. Term; Termination; Survival.

6.1 Term; Termination. This Agreement shall become effective on the date the Licensee downloads the Copyrighted Works (as reflected by Vanderbilt’s records) (“Effective Date”) and shall terminate the earlier of: (a) Three (3) year from the Effective Date whereupon this license shall automatically terminate or (b) upon voluntary termination by either party and/or as provided in this Agreement. Licensee may terminate this Agreement at any time by destroying all copies of the Copyrighted Works in its possession and notifying Vanderbilt. This Agreement will also automatically terminate if Licensee fails to comply with any term or condition of this Agreement.

6.2 Obligations upon Termination. Upon termination of this Agreement, the license granted to Licensee shall immediately terminate and Licensee shall: (i) promptly return to Vanderbilt all copies of the Copyrighted Works and all documentation associated therewith; (ii) immediately discontinue any and all use of the Copyrighted Works; (iii) immediately erase, remove or destroy from any and all equipment all electronic or machine-readable copies of the Copyrighted Works; (iv) certify in writing to Vanderbilt that Licensee has completed the foregoing and that no copies of the Copyrighted Works exist in Licensee’s possession or control and Licensee has complied with Licensee’s obligations set forth in this Agreement; and (v) comply with its obligations set forth in this Agreement. Termination of this Agreement shall not limit either party from pursuing other remedies available to it (to the extent such other remedies are not expressly limited hereunder), including injunctive relief.

6.3 Survival. Sections 4.2, 4.3 and 7 shall survive the expiration or termination of this Agreement.

7. General Provisions.

7.1 Notices. All notices required or permitted relating to a claim or breach of this Agreement shall be in writing and sent to: (i) if to the Licensee: the address provided by Licensee in the Licensee Registration Page when ordering the Copyrighted Works; and (ii) if to Vanderbilt: Center for Technology Transfer and Commercialization, Vanderbilt University, 1207 17th Avenue South, Suite 105, Nashville, Tennessee 37212. Either party may substitute their address from time to time by written notice to the other and shall be deemed validly given upon receipt of such notice given by certified mail, postage prepaid, or personal or courier delivery.

7.2. Governing Law; Severability. This Agreement and performance hereunder shall be governed and construed in accordance with the laws of the U.S. and of the State of Tennessee, without giving effect to provisions thereof regarding conflict of laws. Each party hereto hereby submits to the exclusive jurisdiction of the United States District Court for the Middle District of Tennessee and of any Tennessee state court sitting in Nashville, Tennessee for the purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. Each party hereto irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. All agreements, clauses and covenants contained herein are severable, and in the event any of them shall be held to be unconstitutional, invalid, illegal, or unenforceable, the remainder of this Agreement shall be interpreted as if such unconstitutional, invalid, illegal or unenforceable agreements, clauses or covenants were not contained herein.

7.3. Integration; Waiver; Modification. The parties hereto acknowledge and agree that they have read this Agreement in its entirety and understand and agree to be bound by all of its terms and conditions, and further agree that this Agreement and any exhibits or schedules hereto constitute a complete and exclusive statement of the understanding between the parties with respect to the subject matter hereof, which supersede any and all other communications between the parties, whether written or oral. Any prior agreements, promises, negotiations or representations related to the subject matter hereof not expressly set forth in this Agreement, or any exhibits or schedules hereto, are of no force and effect. The failure by either party to exercise any right provided hereunder shall not be deemed a waiver of such right. This Agreement may be amended, modified or supplemented only by a writing signed by the parties to this Agreement. Such amendments, modifications or supplements shall be deemed as much a part of this Agreement as if so incorporated herein.

7.4. Independent Contractor. Nothing contained in this Agreement shall be construed to create a joint venture or partnership between the parties.

7.5. Force Majeure. Neither party hereto shall be liable for any failure or delay in performance of its obligations hereunder by reason of any event or circumstance beyond its reasonable control, including without limitation, acts of God, war, terrorism, riot, strike, labor disturbance, fire, explosion, flood, or shortage or failure of suppliers.

7.6 Compliance with Laws. Vanderbilt and Licensee will comply with all federal, state and local laws and regulations, as amended from time to time, applicable to such party’s performance of its obligations under this Agreement, including all applicable export controls and economic sanctions laws and regulations of the United States and other applicable jurisdictions.