The mission of the Foundation’s Global Smart Drinking Goals Program (the “GSDG Program”) is to advance knowledge about effective approaches to reducing the harmful use of alcohol (the “Purpose”). Researcher wishes to use certain research data produced by participants in the GSDG Program, and the Foundation is willing to share such research data, for use in furtherance of the Purpose, subject to all of the provisions of this Agreement.
As used in this Agreement, the following capitalized terms shall have the meanings set forth below:
- “Applicable Laws” means any applicable laws, rules, orders, ordinances, regulations, statutes, requirements, codes or executive orders of any governmental or judicial authorities;
- “Dataset” means all of the GSDG Program Data and any other data, analyses or information made available to Researcher hereunder;
- “GSDG Program Data” means (i) any data, analyses, reports, studies or other information or materials created for the GSDG Program other than peer-reviewed scientific publications in scientific journals, books and conference proceedings; or (ii) any data contributed to the GSDG Program or derived from such contributed data other than data published in, and a part of, peer-reviewed scientific publications in scientific journals, books and conference proceedings;
- “include” or “including” mean, respectively, “include without limitation” or “including without limitation”;
- “Party” means the Foundation or Researcher, as applicable, and “Parties” means both the Foundation and Researcher; and
- “Personal Data” means any information relating to an identified or identifiable natural person. Without limitation of the foregoing, “Personal Data” includes any information that directly or indirectly identifies a natural person who is a subject of the research that forms the basis for GSDG Program Data and any information that, when combined with other information, could enable re-identification of such a natural person.
The term of this Agreement (the “Term”) commences on the Effective Date and expires on the second (2nd) anniversary thereof, unless extended by written agreement of the Parties or terminated in accordance herewith. Either Party may terminate this Agreement on written notice to the other Party in the event the other Party is in material breach hereof. The following provisions, together with any other provisions that by their sense or context would reasonably be understood to survive, shall survive the expiration or sooner termination hereof: 2, 5, 7-9, 10(b) and 11-16.
The Foundation grants to Researcher a non-exclusive, royalty-free license to use the Dataset during the Term solely for the Purpose and otherwise in accordance with all of the terms and conditions hereof. Researcher may not assign, transfer or sublicense the foregoing license.
Covenants. Researcher covenants and warrants that it:
- shall comply with all Applicable Laws in connection with its performance hereunder and its use of the Dataset;
- shall use the Dataset in the manner set forth in Schedule B hereto and otherwise in accordance with all of the provisions hereof;
- shall not use the Dataset in a manner that discloses any Personal Data or otherwise permits the identification of any research subjects;
- shall not use the Dataset for any commercial purposes, including selling, commercial screening or manufacturing;
- shall not contact or make any effort to identify any individual who is or may be the source of any information contained in the Dataset, without the prior written approval of the Foundation; and
- shall safeguard the Dataset and not transfer any of it to any third party without the prior written approval of the Foundation.
Data Protection and Management
- Researcher shall take reasonable measures, to ensure the confidentiality, security, and integrity of the Dataset, and shall follow information protection and handling best practices with respect to the Dataset. At a minimum, Researcher shall:
- ensure that all those who will have access to the Dataset understand and adhere to data protection and management requirements set forth herein;
- protect the Dataset and limit access to authorized personnel who have agreed to be bound by the data protection and management requirements hereof;
- protect the identities and confidentiality of all GSDG Program research subjects;
- protect the Dataset using appropriate administrative, technical, organizational, and physical safeguards, as well as backup and encryption, both in transit and at rest;
- use the Dataset only for the specific reason for which the access has been given;
- obtain any Institutional Review Board (IRB) approval or other ethical clearance required for any research conducted using the Dataset, or a signed waiver from an IRB/clearance board;
- use complex passwords that are composed of at least 8 characters and multiple character types and are changed no less than every six months;
- download the Dataset only onto secure networks or servers with strong security protocols, make sure that security patches are implemented and that the computer or server is running virus prevention software;
- avoid storing the Dataset locally on a desktop, laptop, or thumb drive (or encrypt the data if doing so); close out files when leaving the office; and never store the Dataset using public file storage platforms;
- provide the Foundation with periodic updates on the security protocols applicable to Researcher’s Dataset maintenance and usage; and
- return to the Foundation or securely destroy or delete the Dataset upon the sooner of completion of Researcher’s approved research and use of the Dataset or the end of the Term, and certify in writing to the Foundation as to its compliance with such requirement; provided that Researcher shall not be required to return or destroy such portions of the Dataset as: (i) Researcher is required to retain to comply with Applicable Laws; (ii) are published in, and a part of, peer-reviewed scientific publications in scientific journals, books and conference proceedings; or (iii) are included in collections of publicly-available information, such as reviews of scientific literature.
- Notice. Researcher shall provide the Foundation with at least thirty (30) days prior notice of any forthcoming presentation or journal publication based in whole or in part on the Dataset.
- Disclosure Statement. Researcher shall include a disclosure in connection with any publication or presentation that incorporates or is based on the Dataset or any portion thereof, substantially in accordance with the following: “This article/publication/presentation] is based on research funded by AB InBev Foundation. The content is solely the responsibility of the [authors][presenter] and does not necessarily reflect the views of AB InBev Foundation, Anheuser-Busch InBev SA/NV or any of their affiliates.”
Any use by Researcher of the Foundation’s name or logo in publicity or any other public disclosures of each Party’s name or logo, except as expressly provided herein, will require the prior written consent of the Foundation.
Researcher agrees to indemnify and hold harmless the Foundation and its affiliates, and each of its and their officers, directors, agents, employees, subsidiaries, partners, members, controlling persons, and successors and assigns, all of which are intended beneficiaries of this Agreement, from and against any and all claims, liabilities, injuries, damages, costs, and expenses, including reasonable attorneys’ fees and related costs, of any nature whatsoever, resulting from its or its agents’, contractors’, servants’ or employees’ (a) use of the Dataset or (b) breach of this Agreement.
Representations and Warranties; Disclaimer
- Each Party represents and warrants to the other Party that it has full power and authority to enter into this Agreement and to perform its obligations hereunder. In addition, Researcher represents and warrants that the information set forth on Schedule B is accurate and complete.
- THE FOUNDATION DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE GSDG PROGRAM, THE GSDG PROGRAM DATA, THE DATASET OR THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITATION OF THE FOREGOING, THE FOUNDATION MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR USEFULNESS OF THE DATASET, AND RESEARCHER ACKNOWLEDGES THAT (I) THE DATASET HAS BEEN PROVIDED ON AN “AS IS” BASIS; AND (II) NEITHER THE FOUNDATION, NOR AB INBEV, NOR ANY OF THEIR AFFILIATES OR CONTRACTORS, BEARS ANY RESPONSIBILITY FOR RESEARCHER’S USE OF THE DATASET OR ANY INTERPRETATIONS OR INFERENCES BASED ON SUCH USE.
Limitation of Liability
EXCEPT TO THE EXTENT RESULTING FROM THE FOUNDATION’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, THE AGGREGATE LIABILITY OF THE FOUNDATION IN CONNECTION WITH THIS AGREEMENT, THE GSDG PROGRAM, THE GSDG DATA AND THE DATASET FOR ANY REASON AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY OF LIABILITY, SHALL NOT EXCEED US $100.
Relationship of the Parties
The Parties intend that an independent contractor relationship will be created by this Agreement. Researcher is not authorized to and will not act on behalf of or otherwise purport to represent the Foundation.
Except as otherwise provided in this Section 11, any dispute, claim or controversy concerning, relating to, or arising out of, or in connection with, the Services or this Agreement, if not informally resolved between the Parties hereto, will be settled by final and binding arbitration in the State and County of New York by a single arbitrator appointed by the American Arbitration Association. In the event of any such arbitration, each Party will bear its own attorneys’ fees and costs, unless the claim is based on an applicable statute that provides otherwise. Any controversy or claims will be kept confidential by the Parties and their attorneys and advisors, without publicity, and except as may be required by law, no Party, mediator or arbitrator may disclose the existence, content, or results of any mediation or arbitration under this Agreement without the written agreement of the Parties. Notwithstanding the foregoing, the Foundation may enforce the terms of Sections _ and _ of this Agreement by filing suit and/or seeking injunctive relief in a court of competent jurisdiction, and Researcher agrees that it will not contest the standing of the Foundation, or any of its directors or officers, to bring any such suit.
Notices / Communications
All notices or other communications required by this Agreement shall be in writing and will be emailed, mailed, or sent by courier and addressed, if to Researcher, to the applicable Researcher contact information set forth on the first page of this Agreement and, if to the Foundation, to AB InBev Foundation, Attention: Dr. Allison Goldberg, Executive Director, 1440 G Street NW, Washington, DC 20005 (email: firstname.lastname@example.org) with a copy by email to Jeremy@PomeroyLawGroup.com, or as otherwise specified by a Party on notice given in accordance with this Section.
Researcher may not assign any of its rights, nor delegate or subcontract any of its obligations, hereunder without the prior written consent of the Foundation. The Foundation may assign this Agreement on notice to Researcher. Any purported assignment in violation of this Section 12 shall be deemed void ab initio.
This Agreement constitutes the entire agreement between the Parties, and supersedes all prior agreements or understandings, with respect to the subject matter hereof. This Agreement may only be modified by a writing signed and delivered by both Parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of this Agreement will remain in full force and effect and such determination will in no way affect the validity or enforceability of any other provision of this Agreement. Delivery of an executed signature page of this Agreement by email in PDF will be effective as delivery of a manually executed signature page. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules.