MAVA Terms and Conditions of Use

1. Definitions.

a. The term “End User” means a person or entity that has been authorized to access the Portal for the purposes of conducting market research.

b. The term “ID” shall have the meaning set forth in Section 5 below means patents, copyrights, trademarks, logos, trade secrets and other proprietary property rights.

c. The term “Intellectual Property Rights” means the exclusive proprietary rights held by the owner of a copyright, patent, trademark, trade secret, or similar, in any jurisdiction in the world, including (a) the rights to copy, publicly perform, publicly display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter and related rights of attribution and integrity and other moral rights of an author, (b) the rights to exclude others from using, making, having made, selling, offering to sell, and importing patented subject matter and to practice patented methods, (c) the rights to use and display any marks, logos, designs, trade names, or slogans, in association with businesses, products or services as an indication of ownership, origin, affiliation, or sponsorship (“Trademarks”), and (d) the rights to apply for any of the foregoing, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law, contract, license or otherwise, and including (i) rights to Confidential Information that derives independent economic value, actual or potential, as reasonably determined by the Disclosing Party, by virtue of remaining confidential, (ii) rights in inventions (whether patentable or not in any country), disclosures, improvements, proprietary information, know-how, technology and/or technical data, (iii) rights that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including rights in, arising out of, or associated with a person’s name, voice, signature, photograph, or likeness, and including without limitation rights of personality, privacy, and publicity, (iv) rights in, arising out of, or associated with domain names, and (v) any rights in mask works and databases recognized by applicable law.

d. The term “Market Research Respondent” means a person or entity that has been authorized to access the Portal for the purposes of providing responses to End Users’ market research inquiries.

e. The term “User” means End User(s), and Market Research Respondent(s).

2. These Terms govern the use of the Portal, including without limitation, all software, insurance codes, graphics, logos, text, documentation, user guides, databases and compilations of all materials, enhancements, bug fixes, upgrades, modifications, and copies thereof, and all information, methods and processes contained therein. By using the Portal, the User agrees to accept and be bound by the Terms and that the User has been authorized to use the Portal.

3. These Terms are posted on the Portal and are subject to change at any time by posting on the Portal such revised Terms or a reference to the website where such revised Terms may be reviewed. Use of the Portal after such posting of any modifications or additions shall constitute the User’s acceptance of the new Terms as indicated above. eMAX therefore suggests that these Terms be periodically reviewed for any changes or modifications. A physical copy of the current Terms may be requested in writing from eMAX.

4. Authorized Personnel. This Portal is intended for access solely by persons or entities to whom authorized access has been granted.

5. User IDs and Passwords. Each User is solely responsible for (1) maintaining the strict confidentiality of the user login credentials assigned to the User (an “ID”), (2) not allowing another person to use their ID to access the Portal, (3) any charges, damages, or losses that may be incurred or suffered as a result of the User’s failure to maintain the strict confidentiality of its ID, and (4) promptly informing eMAX in writing of any loss or unauthorized use of any ID. eMAX is not and will not be liable for any loss whatsoever related to the theft of any ID(s), User’s disclosure of its ID(s), or User’s authorization to allow another person or entity to access and use the Portal using its ID(s). User agrees to immediately notify eMAX of any unauthorized use of User’s ID(s).

6. Ownership and License of the Portal.

a. License Grant. Subject to the Terms, eMAX hereby grants to the User a non-transferable, non-sublicensable, non-exclusive limited right to use the Portal for the sole purpose of conducting or responding to market research inquiries accessing, including the right to access and view the on-line informational files and user guides in the Portal for User’s internal business purposes only. With the exception of the foregoing limited authorization, the User is not granted any license to or right in the information on the Portal, nor may the User modify, transmit, reproduce, distribute, publish, transfer, sell or otherwise use any information obtained from or through the Portal.

b. Ownership. The Portal, including, without limitation, all information or documentation incorporated therein and all associated Intellectual Property Rights related to the base software of the Portal (the “Portal IP”), is protected by copyright, patent and/or other intellectual property laws and treaties and contains trade secrets of eMAX and its affiliates. eMAX and its affiliates own the title, and Intellectual Property Rights in the Portal IP. Notwithstanding any statements to the contrary contained in the Terms, the Portal IP is licensed, not sold and eMAX retains full ownership of the Portal IP and any derivative works related thereto. As between the parties, the User acknowledges and agrees that eMAX is (i) the exclusive owner of the Portal and all Portal IP; and (ii) the exclusive owner of all right, title and interest in and to any and all information, content, and Intellectual Property Rights related to the Portal. All rights not expressly granted herein are reserved to eMAX; and no rights or licenses, whether express, implied, arising by estoppel, or otherwise are conveyed or intended by these Terms except as expressly provided in this Section. Any reproduction, distribution, public performance, or public display of these materials, in whole or in part, is prohibited without the express prior written permission of eMAX or as expressly permitted in Section 6a. Non-compliance relating to displaying, downloading and reproduction of any information on the Portal, and the unauthorized use of the Portal IP, constitutes a material breach of the Terms and immediate forfeiture of the limited license contained in this Agreement. Additionally, in the event of a breach, eMAX is permitted to seek all available remedies in law and in equity.

c. Feedback. If User sends or transmits any communications or materials to eMAX by mail, email, telephone, or otherwise, suggesting or recommending changes to the Portal or Portal IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), eMAX is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. User hereby assigns to eMAX, all right, title, and interest in any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, and which eMAX is free to use, without any attribution or compensation to any party, for any purpose whatsoever, although eMAX is not required to use any Feedback.

d. Anonymized Data. User acknowledges and agrees that eMAX may use data obtained, created or derived during its performance hereunder that has been an anonymized or de-identified (“Anonymized Data”) for internal and external purposes (including, but not limited to, benchmarking and research). Without limiting the foregoing, eMAX will own all right, title and interest in all Intellectual Property of any Anonymized Data and any reports, summaries, compilations, analysis, statistics or other information derived therefrom, provided they do not identify a User or individual persons.

e. Expressly Prohibited Uses. The User will not, individually, nor allow any unauthorized individual to: (a) make unauthorized use, disclosure or copying of the Portal, the Portal IP, or information contained on or received through the Portal; (b) disassemble, decompile, recast, or import engineer the Portal or any Portal IP; (c) create a substantially similar Portal and/or Portal IP; (d) rent, loan, lease, sublicense (except as permitted to Users), transfer, network, reproduce, display, or otherwise distribute the Portal and/or the Portal IP; (e) copy the Portal and/or Portal IP in any form except as necessary to use the Portal in accordance with the Terms; or (f) modify, alter, delete or obscure any proprietary rights notice embedded in or affixed to the Portal and/or the Portal IP.

7. Communications. By visiting or using the Portal or sending e-mails to eMAX, the User is communicating with eMAX electronically and the User consents to receive communications from eMAX electronically. eMAX may communicate with the User by e-mail or by posting notices on the Portal. The User agrees that all agreements, notices, disclosures, and other communications that eMAX provides to the User electronically will satisfy any legal requirement that such communications be in writing. The Portal may contain links to other websites or frame information from other websites that are not under our control. eMAX is providing these links and/or frames to the User only as a convenience. EMAX MAKES NO ENDORSEMENTS, WARRANTIES OR REPRESENTATIONS OF ANY KIND WHATSOEVER REGARDING THOSE WEBSITES, INCLUDING THE PRODUCTS, SOFTWARE, MATERIALS, SERVICES, CONTENT OR ACCURACY OR APPROPRIATENESS OF CONTENT ON SUCH LINKED WEBSITES. THE USER’S DECISION TO ACCESS ANY SUCH OTHER WEBSITES SHALL BE ENTIRELY AT THE USER’S OWN RISK AND DISCRETION. IN PARTICULAR, PLEASE NOTE THAT THE POLICIES OF OTHER WEBSITES LINKED TO THE PORTAL MAY BE MATERIALLY DIFFERENT THAN THESE TERMS, ESPECIALLY WITH RESPECT TO THE USE AND COLLECTION OF PATIENT INFORMATION AND WITH RESPECT TO THE USE OF PROPRIETARY INFORMATION POSTED ON THAT WEBSITE. No permission is hereby granted to the User to link from any other website to any portion of the Portal, or to frame any content contained on the Portal without eMAX’s prior written permission.

8. Patient Information. The Portal is intended to enable End Users to pose questions and make market research inquiries to Market Research Respondents and for the Market Research Respondents to reply to such questions and inquiries through the Portal and is not intended for the purposes of transmitting, communicating or storing of patient protected health information (“Patient Information”). Certain state and federal laws, as well as ethical and licensure requirements may impose obligations with respect to the confidentiality of Patient Information that may limit the ability of physicians, health care providers, and persons acting on their behalf, to make use of certain services or to transmit certain information to third parties such as the Health Insurance Portability and Accountability Act (“HIPAA”). The User represents and warrants that it will, at all times, comply with all laws directly or indirectly applicable to the User that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of the Patient Information, and use its best efforts to cause all persons or entities under the User’s direction or control to comply with such laws. The User is, at all times, solely responsible for obtaining and maintaining all patient consents and all other legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view the Patient Information the User transmits, stores, or receives in connection with the Portal. The User agrees that eMAX, its licensors and all other persons or entities involved in the operation of Portal who have executed a Business Associate Agreement with eMAX or its affiliates, have the right to monitor, retrieve, store, and use Patient Information in connection with the operation of the Portal and for limited internal business purposes in accordance with HIPAA. eMAX agrees to use commercially reasonable efforts to maintain the confidentiality of such information and prevent the disclosure of such information to third parties except in connection with the transmission, storage, retrieval, and disclosure of such information in connection with the User’s use of the Portal and as may be required or permitted by law. Each party shall be responsible for ensuring that performance of its obligations and exercise of its rights under the Terms comply with all final HIPAA regulations that are applicable to that party in the operation of its business. Neither party shall have responsibility for the applicability of HIPAA regulations to the other party’s business. Notwithstanding the above, the User is solely responsible for assessing its HIPAA compliance and the User shall adopt, modify and/or implement all policies and procedures necessary to comply with the final HIPAA regulations. EMAX DOES NOT VERIFY THE ACCURACY OF ANY PATIENT INFORMATION. EMAX CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR THE USER’S USE OR MISUSE OF PATIENT INFORMATION OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED OR RECEIVED USING THE PORTAL OR THE SERVICES.

9. Disclaimers. The Portal is a service to facilitate market research inquiries between End Users and Market Research Respondents. The User accepts sole responsibility for and acknowledges that it will exercise its own independent judgment in its use of the Portal and shall be solely responsible for such use. The User shall ensure the compliance of these Terms by the User’s employees, other Users (to the extent applicable), agents, officers, directors and other representatives and shall bear the responsibility for any breach of the Terms by them. The User further agrees that eMAX shall have no liability to the User or any third party arising out of the use of the Portal by the User or any third party. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EMAX MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, COMPLETENESS OR NON-INFRINGEMENT, OR WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. EXCEPT AS EXPRESSLY PROVIDED HEREIN. EMAX MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE USER’S ACCESS TO AND USE OF THE PORTAL (1) WILL BE UNINTERRUPTED OR ERROR-FREE, (2) IS FREE OF VIRUSES, UNAUTHORIZED CODE, OR OTHER HARMFUL COMPONENTS, (3) IS SECURE OR (4) WILL PRODUCE ACCURATE RESULTS. THE USER IS RESPONSIBLE FOR TAKING ALL PRECAUTIONS THE USER BELIEVES NECESSARY OR ADVISABLE TO PROTECT THE USER AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF ITS USE OF THE PORTAL. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY EMAX, ITS LICENSORS, AGENTS OR EMPLOYEES WILL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES EXPRESSLY PROVIDED IN THE TERMS.

10. Exclusion of Damages. UNDER NO CIRCUMSTANCES WHATSOEVER WILL EMAX OR ITS SERVICE PROVIDER BE RESPONSIBLE OR LIABLE TO THE USER OR ANY OTHER ENTITY FOR ANY DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS AND LOST BUSINESS OPPORTUNITIES), SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO (1) THE USER’S USE OF THE PORTAL OR (2) ERRORS, INACCURACIES, OMISSIONS, DEFECTS, UNTIMELINESS, SECURITY BREACHES, OR ANY OTHER FAILURE TO PERFORM BY EMAX OR ITS AFFILIATES OR SERVICE PROVIDERS. THE FOREGOING EXCLUSION SHALL APPLY REGARDLESS OF WHETHER EMAX OR ITS AFFILIATES OR SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. Indemnity. The User agrees to defend, indemnify and hold eMAX, and its officers, members, employees, and agents harmless against any losses, expenses, costs or damages (including their reasonable attorney fees, expert fees, and other reasonable costs of litigation) arising from, incurred as a result of, or in any manner related to (1) the User’s breach of these Terms, (2) the User’s unauthorized or unlawful use of the Portal, (3) the unauthorized use or disclosure of Patient Information and (4) the unauthorized or unlawful use of the Portal by any other person using the User’s ID(s).

12. Confidentiality. The User agrees to keep the Confidential Information (as defined below) strictly confidential in the same manner and with the same care and discretion that the User treats its own most confidential and sensitive information. The User agrees not to publish, disclose, divulge or disseminate the Confidential Information to any third party. The User further agrees to grant access to Confidential Information only to its staff and employees who are under an obligation to keep the Confidential Information confidential and who will not disclose any such Confidential Information. The User agrees that it will not, at any time, without eMAX’s written permission: (a) copy or duplicate the Confidential Information, or any part thereof; (b) use the Confidential Information to develop functionally similar computer software; or (c) permit any third party to do any of the foregoing. “Confidential Information” shall include the IDs, Patient Information, the Portal, Portal IP, Intellectual Property, any ideas, improvements, features, customizations, enhancements, inventions, know-how or other intellectual property created, invented, conceived, suggested, developed, or reduced to practice by eMAX pursuant to these Terms. Confidential information shall also include all information, content, market research questions, or any answers or responses to market research questions, available on the Portal. Upon termination, the User shall immediately cease all use of the Confidential Information, in whatever form, and, at eMAX’s option, return or destroy and certify in writing the destruction thereof any and all copies of the Confidential Information.

13. Term and Termination. These Terms and any and all licenses set forth herein shall begin upon acceptance by User of these Terms and shall continue until terminated by eMAX at any time upon notice to the User. Notwithstanding the foregoing, all licenses herein shall immediately terminate if a User fails to comply with the Terms, or if any fees related to the licenses or User’s use of or access to the Portal are not paid when due.

14. Injunctive Relief. The User acknowledges that a breach by it, its Users (to the extent applicable) or any other person or entity acting on the User’s behalf of any of the covenants set forth herein will result in immediate and irreparable injury to eMAX, and that in the event of a breach or threatened breach, eMAX will be entitled to seek from any court of competent jurisdiction preliminary and permanent injunctive relief, which remedy will be cumulative and in addition to any other rights and remedies to which eMAX may be entitled, without necessity of posting bond or other security.

15. U.S. Government End Users. The software and documentation in the Portal is a “commercial item” as that term is defined in 48 C.F.R 2.101 (Oct. 2010), consisting of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. 12.212 (Oct. 2010). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (Oct. 2010), all U.S. Government End Users acquire the software and documentation in the Portal with only those rights set forth in the Terms. The Portal was developed fully at private expense. All other use is prohibited.

16. General. The Terms constitute the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings regarding the Portal. If any provision of these Terms is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. The User shall not assign these Terms or all or any part of its rights or obligations hereunder without eMAX’s prior written consent, and any attempt to the contrary shall be void and a material breach of the Terms. Neither party shall be responsible for any delay or failure of performance resulting from causes beyond its control. eMAX’s failure to exercise any of its rights under the Terms for a breach thereof shall not be deemed to be a continuing waiver or a waiver of any subsequent breach of the same or any other provision. The titles of the sections hereof are for convenience only and do not in any way limit or amplify the terms and conditions herein. All sections necessary to interpret the rights and duties of the parties shall survive termination of the Terms. The User agrees and acknowledges that its use of the Portal, and all transactions occurring in connection with the Portal, shall be deemed to have occurred and taken place solely in the State of New York, United States of America. The Terms shall be interpreted and governed according to the laws of the State of New York, without regard to its conflict of laws principles; and any claim or action shall be brought in the State or federal courts sitting in New York County, New York. USER FURTHER AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT. The User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Portal or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The User’s use of the Portal is void where prohibited by laws in jurisdictions to which the User is otherwise subject, and the User agrees that it shall not visit or use the Portal in any such circumstances.