SaaS Subscription Terms Agreement

These SAAS SUBSCRIPTION TERMS (these “Terms”) govern Client’s access to and use of one or more Cytel SaaS Offerings. By executing an Order that references these Terms, Client accepts and agrees to all of the terms and conditions hereof. Client has no right to access or use any SaaS Offering other than pursuant to and in accordance with these Terms.

1. Definitions.

In addition to the capitalized terms defined upon first use in these Terms, the following capitalized terms shall have the meanings set forth below in this Section 1:

(i)            “Client” means the person or entity entering into this Agreement by executing an Order with Cytel.

(ii)           “Cytel” means Cytel Inc., a Delaware corporation with a principal place of business located at 675 Massachusetts Ave, Cambridge, MA 02139.

(iii)         “Cytel IP” means the Cytel Software, the Documentation and all other software (including both source code and object code, as applicable), documentation, templates (including reporting templates), designs (including graphics, layout, presentation, style or effect, screen and report designs), data, materials, technology, works and other intellectual property created, utilized and/or provided by or on behalf of Cytel in connection with any SaaS Offering or the performance of this Agreement, and all Intellectual Property Rights related to any of the foregoing.

(iv)          “Cytel Software” means all software forming part of or used by Cytel to deliver a SaaS Offering, including any upgrades, improvements, enhancements or derivatives thereof.

(v)           “Documentation” means the instructions and user guides for a SaaS Offering, whether accessed in printed form, online or downloaded, in each case as made available and updated by Cytel from time to time.

(vi)          “Named Users” shall mean those individual, named employees of Client (or consultants, contractors, and agents of Client approved in writing by Cytel) to whom Cytel and/or Client (if applicable) has authorized access to the Subscribed Services by providing access credentials under an applicable Order, in order to perform his or her job functions for Client’s internal business purposes. Each Named User must be a unique individual and Client shall be responsible for ensuring that the maximum number of Named Users is not exceeded. A Named User license may be permanently transferred from a former Named User (such as an individual whose employment by Client terminates) to a replacement Named User, but two or more individuals may not share a single Named User login.

(vii)        “Intellectual Property Rights” means all rights throughout the world in any and all of the following: (a) patents, patent applications, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names and registrations and applications for the registration thereof together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs and mask works) and registrations and applications for registration thereof; (d) trade secrets, know-how and other proprietary information; (e) waivable or assignable moral rights or rights of publicity; and (f) all other forms of intellectual property, such as data and databases, in each case, to the extent protectable under applicable law.

(viii)       “Order” shall mean an ordering document executed by the Parties with respect to Client’s subscription to a SaaS Offering (but only to the extent pertaining to a SaaS Offering, if such ordering document also covers products or services other than a SaaS Offering).

(ix)          “Outputs” shall mean documents and information containing analysis and/or summaries of Client Data generated from the use of the Subscribed Services including power point slides and presentations, portable document files, reports, word documents, paper copies, excel, CSV or other data files or elements.

(x)           “Party” means Client or Cytel and “Parties” means, collectively, both parties to this Agreement.

(xi)          “SaaS Offering” means any of Cytel’s generally commercially available hosted software-as-a-service offerings, the specific features and functionality of which are described in the applicable Documentation.

(xii)        “Subscribed Services” means the specific SaaS Offering to which Client has purchased a subscription, as identified in an Order, together with any related support and maintenance services as described in Appendix B.

(xiii)       “Subscription Term” means the period for which Client has purchased a subscription to the Subscribed Services, as set forth in an Order.

2. General Terms; Scope of Agreement.

2.1         This Agreement is comprised of (and the term “this Agreement” refers to) these Terms together with the Order, any applicable Supplemental Terms and any Appendix attached hereto (each of which shall be deemed incorporated by reference).

2.2         Certain SaaS Offerings are subject to supplemental terms and conditions specific to such solutions, as specified in the applicable Order (“Supplemental Terms”). Any applicable Supplemental Terms are intended to supplement, not replace, these Terms. Without limiting the generality of the foregoing, if Client wishes to utilize Single Sign On functionality in connection with the Subscribed Services, Client will inform Cytel in writing and in which case, Client agrees to be bound by the Supplemental Terms set forth in Appendix A.

2.3         In the event of a conflict, discrepancy or inconsistency between any documents forming part of this Agreement that is not expressly resolved in the documents, the terms will control in the following order (1) the Order, (2) any Supplemental Terms (but solely with respect to the particular SaaS Offering to which they apply), (3) these Terms, and (4) any Appendix attached hereto.

2.4         The Subscribed Services may contain integration functionality designed to interoperate with third-party software applications, products or services (collectively, “Third-Party Offerings”). Any acquisition, access or use by or on behalf of Client of Third-Party Offerings, including the availability and performance of any Third-Party Offerings, is solely between Client and the applicable third-party provider and Cytel shall have no liability to Client in connection therewith. Cytel does not warrant or support Third-Party Offerings or any related integrations, and Cytel makes no representations or warranties, express or implied, as to the availability, performance, legality or non-infringement of any Third-Party Offerings or related integrations or interoperation.

2.5         The Subscribed Services or Cytel Software may contain or otherwise make use of software, code or related materials from third parties, including “open source” or “freeware” software (“Third-Party Components”). Third-Party Components may be subject to separate license terms that accompany such Third-Party Components. Subject to Cytel’s express obligations under this Agreement with respect to the Subscribed Services as a whole, any Third-Party Components are made available “AS IS” without representations, warranties or other obligations of any kind.

3. Provision of Subscribed Services.

3.1         During the applicable Subscription Term, Cytel shall provide the Subscribed Services to Client on the terms and subject to the conditions set forth in this Agreement.

3.2         Cytel is responsible for the deployment, operation, management and hosting of the Subscribed Services, including the provisioning and maintenance of all hardware, software, databases, database management systems and networking infrastructure, in each case on the server-side only. Client is responsible for all hardware, software, connectivity and related infrastructure required for Client and its Named Users to access and use the Subscribed Services.

3.3         As part of the Subscribed Services, Cytel shall make available to Client standard technical support and maintenance services in accordance with the terms of Appendix B.

3.4         Client acknowledges that SaaS Offerings are based on standardized service platforms made available by Cytel to a variety of customers. Client acknowledges that the Subscribed Services were not designed to Client’s individual requirements and that Client is solely responsible for confirming that the Subscribed Services meet such requirements. Client agrees that its subscription to the Subscribed Services is not contingent on the delivery of any future functionality or features, or dependent on any statements made by Cytel regarding possible future functionality or features. Cytel will make available to Client as part of the Subscribed Services the error corrections and improvements that Cytel makes available to its customers generally as part of their subscription to the same SaaS Offering, but specifically excluding any new products, offerings, applications or add-ons for which Cytel charges a separate fee, unless Client separately purchases a subscription thereto. Cytel reserves the right to make changes to the Subscribed Services. If any such change materially diminishes the functionality and value of the Subscribed Services as a whole, Client shall have the right, exercisable no later than 30 days after such change has been implemented, as Client’s sole remedy, to terminate this Agreement upon notice to Cytel and recover a refund of any unused subscription fees paid with respect to the then-remaining portion of any prepaid Subscription Term.

4. Rights and Limitations of Use.

4.1         Subject to the terms and conditions of this Agreement (including Client’s payment obligations hereunder), Cytel grants to Client:

(a)           a limited, non-exclusive, non-transferable right and license during the applicable Subscription Term to permit Named Users to access and use the Subscribed Services and Documentation, internally within Client’s organization for its internal business purposes and only in accordance with the Documentation and any applicable usage limits specified in the Order; and

(b)           a limited, non-exclusive, non-transferable, license to use Cytel IP solely to the extent incorporated or embedded in any Outputs which Client has created during the Subscription Term and only if and to the extent necessary for Client’s use of such Outputs for internal business purposes.

4.2         Except for the rights granted in Section 4.1, no other rights in or to any SaaS Offering or other Cytel IP, express or implied, are granted to Client. Without limiting the foregoing, Client agrees: (a) to access and use the Subscribed Services only for bona fide Client projects and not to provide outsourcing, service bureau, hosting, application service provider or online services to or for the benefit of third parties; (b) not to reproduce, modify or create any derivative works, including translations, based upon any Subscribed Services or Cytel IP; (c) to preserve and not obscure, alter or remove any copyright, trademark and other proprietary markings and notices that may appear in or on the Subscribed Services, Documentation or other Cytel IP; (d) not to sell, rent, lease or share any Subscribed Services or otherwise permit anyone who is not a Named User to use or access any Subscribed Services; (e) not to subject the Subscribed Services to load, penetration or vulnerability testing or otherwise use any Subscribed Services in any way that is, or could reasonably be expected to be, detrimental to Cytel’s ability to provide services to any other customer, except with Cytel’s express prior written consent in each instance; (f) not to use the Subscribed Services for performance, benchmarking or comparison testing or analysis, or disclose to any third party or otherwise disseminate any results thereof (all of which shall be considered Confidential Information of Cytel) without Cytel’s prior written consent in each instance; (g) not to circumvent any security feature or attempt to access or derive the source code or architecture of any Subscribed Services or Cytel IP; (h) not to access or use the Subscribed Services or any Cytel IP in order to develop a competing offering or to assist someone else to develop a competing offering; (i) not to access or use the Subscribed Services in a manner that violates any applicable law or is defamatory, harassing, infringing or otherwise causes damage or injury to any person, entity or property, including to Cytel itself and its business partners, licensors or suppliers, including by transmitting or introducing into any Cytel Software or system any program, routine, subroutine, or data (including malicious software, malware, viruses, worms or Trojan Horses) that may disrupt the proper operation of any system or cause the loss or corruption of any data; and (j) not to permit, enable or assist any other person or entity to take any action inconsistent with this Section 4.2.

4.3         Client is solely responsible for its relationships with all Named Users, for their use of the Subscribed Services, and for ensuring that they comply with all terms and conditions of this Agreement. Client is responsible for all acts and omissions of its Named Users, and any violation of the terms and/or conditions of this Agreement by a Named User shall be deemed to be a violation by Client of such terms and conditions. Client is solely responsible for the security and proper creation, use and termination of all user IDs, passwords and other login credentials used in connection with the Subscribed Services and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to unauthorized parties. Client shall immediately inform Cytel if there is any reason to believe that a user ID, password, or any other login credential has or is likely to become known to any person or entity not authorized to use it, or is being or is likely to be used in an unauthorized way. Cytel reserves the right (in its sole discretion) to require Client to change any or all of the user IDs, passwords or other login credentials used by Client in connection with the Subscribed Services, and Client shall promptly comply with any such requirement.

4.4         As between the Parties, the Subscribed Services and all other Cytel IP and all worldwide Intellectual Property Rights therein, are and shall remain the sole and exclusive property of Cytel and, if applicable, its licensors, and Client shall acquire no right of ownership or use with respect thereto except for the limited rights specified in Section 4. Client acknowledges that its limited access to and use of the Subscribed Services are on a subscription basis subject to the terms and conditions herein. Except for the limited usage rights expressly granted hereunder, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license in any Cytel IP. All rights not expressly granted by Cytel under this Agreement are reserved by Cytel. Without limiting the foregoing, Client acknowledges that the Subscribed Services and the Cytel Software, including the inventions, know-how and methodology embodied therein, are proprietary to and include valuable trade secrets of Cytel and its licensors, and that the Cytel Software constitutes Confidential Information of Cytel. Client agrees to keep all such Confidential Information in confidence and to take all reasonable precautions to ensure that no unauthorized persons (including Cytel competitors) have access to the Subscribed Services or Cytel Software.

5. Subscription Term; Termination and Suspension.

5.1         Cytel makes the SaaS Offerings available on a subscription basis, and Client is purchasing a subscription to access and use the Subscribed Services upon the terms and conditions set forth in this Agreement, for the Subscription Term and subject to payment of the fees specified in the Order. Neither Party may terminate this Agreement or any Order for convenience prior to the end of the Subscription Term.

5.2         This Agreement shall commence on the signature or acceptance by Cytel of an Order and shall, unless earlier terminated pursuant to the terms of this Agreement, continue for the Subscription Term set forth therein.

5.3         Either Party may terminate this Agreement by notice if the other Party breaches any material term of this Agreement and fails to cure such breach within 30 days after receipt of notice of the breach from the non-defaulting Party. Any such termination shall be without limitation of any other right or remedy available to the terminating Party. Notwithstanding the foregoing, Client shall not be permitted to terminate this Agreement pursuant to this Section 5.3 if, within the applicable 30-day cure period, Cytel has provided Client with reasonable assurances that the applicable breach will be remedied within a reasonable period of time not to exceed 120 days.

5.4         Upon 10 days’ notice to Client, Cytel may suspend the Subscribed Services in whole or in part if Client fails to make when due (subject to Section 6.5 with respect to disputed amounts) any payment required under this Agreement. Cytel may also suspend the Subscribed Services in whole or in part if Client otherwise breaches any term of this Agreement and fails to cure such breach within 30 days after receipt of notice of the breach from Cytel, until such time as the breach is cured. Notwithstanding the foregoing, Cytel may immediately suspend the Subscribed Services, with or without prior notice to Client, in order to avoid or mitigate material harm to Cytel. Any suspension hereunder shall be without limitation of any other right or remedy available to Cytel.

5.5         Either Party may terminate this Agreement immediately upon notice if the other Party makes an assignment for the benefit of creditors, admits in writing its inability to pay debts as they become due, files a petition in bankruptcy or has a petition filed against it in bankruptcy, or becomes the subject of any court or administrative proceeding related to its liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within 120 days.

5.6         Upon the termination or expiration of this Agreement for any reason:

(a)           Cytel will terminate access to the Subscribed Services, and all rights and licenses granted by Cytel pursuant to this Agreement shall terminate.

(b)           Client shall pay all amounts that have accrued and are owed hereunder within ten days following any termination or expiration of this Agreement.

(c)           Upon written request by Client made within thirty (30) days after the effective date of expiration or termination, Cytel will make available to Client for download one or more electronic files of Client Data stored in the Subscribed Services. After such 30-day period, Cytel shall have no obligation to maintain or provide any Client Data and Cytel may delete all Client Data without notice to Client.

(d)           If requested by a Party, the other Party shall promptly destroy or return to the requesting Party, as directed, all of the requesting Party’s Confidential Information, and other materials of the requesting Party in such other Party’s possession or under its control. Notwithstanding the foregoing, neither Party shall be required to purge electronic backup media maintained in the ordinary course of business that may contain Confidential Information, and each Party shall be entitled to retain one archival copy of any Confidential Information to the extent it has been advised in writing by counsel that such retention is required to comply with applicable law.

(e)           Any provision of this Agreement which, by its nature, would survive termination or expiration of this Agreement shall survive any such termination or expiration.

6. Fees and Payments.

6.1         Client shall pay to Cytel the fees as specified in the applicable Order. Except as otherwise set forth in this Agreement, all payment obligations under an Order are non-cancelable and amounts paid are non-refundable. Unless otherwise specified in the Order, all fees are payable in United States Dollars and Client shall pay all fees and charges within 30 days of the date of Cytel’s invoice therefor.

6.2         Cytel reserves the right to increase any fees at any time, provided that no increase of the subscription fees payable by Client for the Subscribed Services shall take effect during the Subscription Term.

6.3         Client shall pay to Cytel interest on the amount of any payment obligation not paid when due at a rate equal to the lower of (a) 1.5% per month or portion of a month or (b) the highest rate permitted by law. Client shall reimburse Cytel for all reasonable costs incurred by Cytel in collecting any late payments or interest, including reasonable attorneys’ fees, court costs, and collection agency fees.

6.4         Client shall also be responsible for paying all taxes applicable with respect to the transactions contemplated by this Agreement, except taxes based on Cytel’s net income.

6.5         If Client disputes in good faith the amount of any invoice, Client shall notify Cytel of the disputed amount and the reasons therefor no later than the date payment would otherwise be due, and Client shall timely pay the undisputed portion of the invoice. The Parties will attempt in good faith to resolve the dispute within 30 days after Cytel’s receipt of Client’s timely notice of dispute (the “Resolution Period”), during which time withholding of the disputed amount will not be considered a material breach of this Agreement and no interest will accrue for late payment of the disputed amount so long as Client is cooperating diligently to resolve the dispute. Upon resolution of the dispute, Client will pay any resolved amount promptly, but in any case, within ten days of mutual written agreement resolving the dispute. If the dispute is not resolved within the Resolution Period, each Party will be entitled to pursue all available remedies.

7. Representation and Warranties.

7.1         Each Party represents and warrants to the other that (a) it is a corporation duly incorporated, validly existing and in good standing under the laws of the state of its incorporation; (b) it has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder; and (c) the person signing this Agreement on its behalf has the full power and legal authority to accept and bind such Party to the terms of this Agreement.

7.2         Client represents and warrants that (a) it has obtained all necessary rights, releases, and permissions to provide all Client Data to Cytel and to grant the rights granted to Cytel in this Agreement and (b) no Client Data or its transfer to, or use by, Cytel as authorized by Client under this Agreement does or will violate any laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity, and that no use, collection or disclosure of Client Data authorized herein is inconsistent with the terms of any applicable privacy policies. Client further represents and warrants that it will not submit to, or process via, the Subscribed Services any Protected Health Information (as defined under the Health Insurance Portability and Accountability Act of 1996) or any Personal Data [other than name, email address, etc.] (as defined under the European Union’s General Data Privacy Regulation [Regulation (EU) 2016/679]).

7.3         Cytel warrants to Client that the Subscribed Services will perform substantially in accordance with the specifications set forth in the Documentation during the Subscription Term. Cytel does not make any representations or guarantees regarding uptime or availability of the Subscribed Services. In the event of a nonconformance of this warranty for the Subscribed Services, Client will promptly (and in no event later than 60 days after the non-conforming Subscribed Services were provided) notify Cytel of such nonconformance and Cytel will, following receipt of such notice from Client, use commercially reasonable efforts to make available to Client a conforming version of the applicable Subscribed Services. If Cytel fails to do so within 30 days, and such nonconformance has the effect of materially diminishing the functionality and value of the Subscribed Services as a whole, then Client shall have the right to terminate the relevant Order upon notice and recover a refund of any unused subscription fees paid with respect to the then-remaining portion of any prepaid Subscription Term; provided, however, that such termination shall not be permitted if, within such 30 day period, Cytel has provided Client with reasonable assurances that such nonconformance will be remedied within a reasonable period of time. The foregoing sets forth the exclusive remedies of Client, and the sole liability of Cytel, in the event of any nonconformance with any of the warranties set forth in this Section 7.3 or otherwise with respect to any errors, service interruptions or other problems with the Subscribed Services.

7.4         The limited warranty in Section 7.3 is subject to and conditioned upon Client’s proper use of the Subscribed Services for the purpose intended. The warranty does not cover any software or service which: (i) has been misused, subject to unauthorized use, or modified by a party other than Cytel; or (ii) has a defect which resulted from acts or omissions of persons other than Cytel or from products, material, or software not provided by Cytel.

7.5         EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CYTEL MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBSCRIBED SERVICES AND/OR CYTEL IP, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES OF NONINFRINGEMENT, ALL OF WHICH ARE HREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7.3, CYTEL MAKES NO WARRANTY OF ANY KIND THAT THE SUBSCRIBED SERVICES OR ANY RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SYSTEM OR SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED.

8. Limitation of Liability.

8.1         CYTEL SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY SORT ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING LOST DATA OR LOST PROFITS, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2         TO THE MAXIMUM EXTENT PERMITTED BY LAW, CYTEL’S AGGREGATE LIABILITY TO CLIENT FOR DAMAGES ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT FOR THE SUBSCRIPTION SERVICES FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.

8.3         CLIENT ACKNOWLEDGES THAT THE PRICING FOR THE SUBSCRIBED SERVICES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT CYTEL WOULD NOT ENTER INTO THIS AGREEMENT ON THE TERMS HEREOF WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

8.4         Without limiting any other provision of this Agreement, Client understands that the results obtained from Client’s use of, or access to, the Subscribed Services are highly dependent on Client’s inputs into, and appropriate operation of, the Subscribed Services. Client agrees to thoroughly test and verify the results obtained from its use of, or access to, the Subscribed Services. Cytel shall have no liability to Client or any third parties, and Client expressly assumes all risk of liability and damages, based on or arising from Client’s use of, or access to, the Subscribed Services, including any claims, suits, actions or proceedings related to or arising from (a) any illness or personal injury to Client’s patients, employees, subjects, users, or clients, allegedly caused by use of, or access to, the Subscribed Services, (b) any clinical trial or other activity for which Client elects to use the Subscribed Services, or (c) Client’s use of results generated from the use of the Subscribed Services.

9. Indemnification.

9.1         Client shall, at its own expense, indemnify, hold harmless, and defend Cytel and its affiliates, and their respective employees, directors, officers, and agents, from and against any loss, cost, damage or expense (including reasonable attorneys’ fees) incurred in respect of any claim, demand, action, suit or other judicial proceeding asserted, brought or threatened by a third party (each, a “Claim”) that relates to (a) any Client Data; (b) the use by Client of the Subscribed Services in breach of this Agreement or in violation of applicable law or third party rights; or (c) any matter described in Section 8.4 hereof.

9.2         Cytel shall, at its own expense, indemnify, hold harmless, and defend Client and its employees, directors, officers and agents from and against any loss, cost, damage or expense (including reasonable attorneys’ fees) incurred in respect of any Claim against Client alleging that the Subscribed Services, or any part thereof, when used in accordance with the terms of this Agreement, constitutes infringement of any valid United States patent, copyright or other Intellectual Property Right arising under United States law, except to the extent the Claim arises from or relates to: (a) information, designs, specifications or materials provided by or on behalf of Client or its Named Users, including where Client specified the form, content or functionality of software or services alleged to be infringing; (b) the combination, operation or use by Client of the Subscribed Services with other programs, hardware, data or specifications if a different combination would avoid the infringement; (c) Client’s methods or process of doing or conducting business; or (d) any matter for which Client is obligated to defend or indemnify Cytel pursuant to Section 9.1. In the event of any actual Claim of infringement or if Cytel has reason to believe that such a Claim may be brought, Cytel may at its option and sole expense either obtain the rights necessary to extinguish or avoid the infringement, or make modifications to the Subscribed Services to avoid the infringement. If any such modification materially diminishes the functionality and value of the Subscribed Services as a whole, Client may within 30 days following Cytel’s implementation of such modification terminate this Agreement by notice to Cytel and recover a refund of any unused subscription fees paid with respect to the then-remaining portion of any prepaid Subscription Term. THIS SECTION 9.2 STATES CLIENT’S SOLE REMEDY AND CYTEL’S ENTIRE LIABILITY FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

9.3         As a condition to the obligations of the indemnifying party under either of Sections 9.1 or 9.2 above, the indemnified Party shall: (a) promptly notify the indemnifying Party of any Claim for which indemnification will be sought, provided that no delay in providing such notice shall relieve the indemnifying Party of any liability or obligations hereunder except to the extent the indemnifying Party has been prejudiced by such delay; (b) permit the indemnifying Party to assume control of the defense and settlement of such Claim with counsel of its choosing; and (c) provide cooperation reasonably requested by the indemnifying Party in investigating and defending such Claim, at the indemnifying Party’s expense. The indemnifying Party may not consent to the settlement or entry of judgment in such Claim without the indemnified Party’s prior written consent if such settlement or judgment would admit any wrongdoing on the part of the indemnified Party or otherwise impose any obligation or liability on the indemnified Party. The indemnified Party may participate in (but not control) the defense of any such Claim with its own counsel at its own expense.

10. Confidentiality.

10.1       “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing), business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party under this Agreement, (b) was rightfully known to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party, (c) is rightfully received by the Receiving Party on a non-confidential basis from a third party, or (d) was independently developed by the Receiving Party without use of or reference to Confidential Information of the Disclosing Party.

10.2       The Receiving Party will use the same degree of care that it uses to protect its own confidential information of like kind (but not less than reasonable care) to (a) avoid using or disclosing any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to the Disclosing Party’s Confidential Information to Receiving Party’s employees and contractors who (i) have a legitimate need to access Disclosing Party’s Confidential Information for purposes consistent with this Agreement and (ii) have signed confidentiality agreements with the Receiving Party containing protections not materially less protective than those contained herein.

10.3       Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order or as otherwise required by law, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure unless such notice is prohibited by applicable law.

10.4       Any breach of the confidentiality obligations set forth in this Section 10 would constitute a material breach of this Agreement, which the breaching Party acknowledges would cause irreparable harm to the non-breaching Party, leaving it without an adequate remedy at law. As such, any such breach shall entitle the non-breaching Party to injunctive relief in addition to all other remedies, without necessity of posting of a bond or other security in connection therewith. The preceding sentence is not intended, nor shall it be construed, to limit a Party’s right to dispute the factual basis underlying any contention that it has committed any breach.

11. Client Data.

11.1       Client Data: For purposes hereof, “Client Data” shall mean all data or other information in any medium submitted to the Subscribed Services by or on behalf of Client. As between Cytel and Client, all Client Data shall remain the sole property of Client. All Outputs are themselves also Client Data, subject to Cytel’s rights in any Cytel IP incorporated or embedded in such Outputs.

11.2       Use of Client Data: Client grants to Cytel a non-exclusive, royalty-free, license to use, modify, copy, process, display, and prepare derivative works of the Client Data for purposes of Cytel providing the Subscribed Services and otherwise performing its obligations under this Agreement. Certain SaaS Offerings may include or support integration or interoperability intended to facilitate the exchange of Client Data between the Subscribed Services and Third-Party Offerings. By making use of any such integration or interoperability, Client (i) grants all necessary authorizations and permissions required for the relevant exchange of Client Data between Subscribed Services and Third-Party Offerings and (ii) assumes all risk associated with or resulting from such exchange of Client Data and agrees that Cytel shall not be responsible for any resulting disclosure, modification or loss of Client Data.

11.3       Aggregate Data Use: Cytel may create aggregated data from Client Data that does not identify Client or any aspect of the operations of Client. Such aggregate-level data may include data analysis across multiple Cytel customers and may be used for any lawful purposes, including the operations of Client or Cytel, to develop industry benchmarks, measures, and standards for the benefit of other Cytel customers or publication in Cytel reports. Upon creation, as between Cytel and Client, Cytel shall own all right, title, and interest in and to all such aggregated data.

11.4       Data Protection and Privacy: Cytel shall maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Client Data. Client is solely responsible for all aspects of Client Data, including its sourcing, inputting, management, accuracy, quality, legality, results and the privacy of protected personal information.

The Parties shall undertake to comply with all applicable laws, rules and regulations governing the protection and privacy of Personal Data, including, without limitation, (a) General Data Protection Regulation (EU) 2016/679 and ePrivacy Directive 2002/58/EC as implemented by countries within the EEA or successor Laws (GDPR), (b) the UK Data Protection Act 2018 as amended from time to time, (c) the Swiss Federal Act of 19 June 1992 on Data Protection (FADP) and from September 1, 2023 the Revised FADP, (d) 201 CMR 17.00: Standards for The Protection of Personal Information of Residents of the Commonwealth of Massachusetts, (as amended (“201 CMR 17.00”), (e) Title 1.81.5. California Consumer Privacy Act of 2018 [1798.100 – 1798.199], and (f) other applicable laws, rules, and regulations relating to privacy, data protection and data security, including with respect to the collection, use, storage, transmission, disclosure, transfer (including cross-border transfer), processing, retention, and disposal of Personal Data. (“Applicable Data Protection Law”). Where Cytel or its affiliates Process Personal Data from the EEA, UK, or Switzerland hereunder and that Processing involves transfers of such Personal Data from Client to Cytel or its affiliates in countries that the European Commission, UK Governmental Authorities, or Swiss Governmental Authorities, as applicable, do not consider to ensure an “adequate” level of data protection, Appendix C shall apply. Capitalized terms used in this paragraph and not otherwise defined in these Terms, shall have the meaning set forth in Appendix C.

12. Miscellaneous.

12.1       Feedback. If Client or any of its employees, consultants, contractors, or agents sends or transmits any communications or materials to Cytel by mail, email, telephone, or otherwise, suggesting or recommending changes to Cytel IP, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), Cytel is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to Cytel on Client’s behalf, and on behalf of its employees, consultants, contractors and/or agents, all right, title, and interest in, and Cytel is free to use, without any attribution or compensation to any Party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever. Any and all Feedback is and shall be given entirely voluntarily, and Cytel shall be under no obligation to use any Feedback.

12.2       Publicity. Cytel may use Client’s name and logo in its marketing materials and website to identify Client as a customer. Client hereby grants to Cytel a non-exclusive, non-transferable, worldwide, royalty-free license to use Client’s trademarks, service marks, and trade names in conjunction with the foregoing.

12.3       Export Laws. The Subscribed Services and/or Cytel Software may be subject to export controls and other laws, restrictions, regulations and rules of the United States or other applicable jurisdictions, including the U.S. Export Administration Regulations (EAR) and Foreign Assets Control Regulations (collectively, “Export Laws”). Client shall comply with all Export Laws applicable to its access and use of the Subscribed Services. Client represents, warrants, covenants and agrees that (a) none of Client or its employees, directors, officers, agents or Named Users is or will be located in, or a national or resident of, any country or territory subject to territorial embargoes of the United States, United Kingdom, European Union, Australia or Canada, including Cuba, Iran, North Korea, Syria, or the Crimea, Donetsk and Luhansk regions (“Restricted Countries”); and (b) none of Client or its employees, directors, officers, agents or Named Users is or will be a person or entity, or owned by, under the control of, or affiliated with, a person or entity (i) identified on U.S. or other applicable government restricted party lists, such as the U.S. Office of Foreign Assets Control’s Specially Designated Nationals List, Foreign Sanctions Evaders List or Palestinian Legislative Council List or the U.S. Department of State’s Terrorist Exclusion List; or (ii) engaged in the design, development or production of nuclear, biological or chemical weapons, missiles or unmanned aerial vehicles. Without limiting the foregoing, Cytel may terminate or block access to the Subscribed Services if Cytel identifies the IP address, location or address of residence of any Named User or use of the Subscribed Services as originating from any Restricted Country.

12.4       Applicable Law. This Agreement shall be governed by and construed in accordance with the law of the Commonwealth of Massachusetts without regard to its conflict of laws principles. The Parties agree that this Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Any suit or other legal action respecting this Agreement shall be brought exclusively in the state or federal courts located in Boston, Massachusetts, and the Parties submit to the exclusive jurisdiction of such courts for all purposes.

12.5       Validity. All provisions of this Agreement shall be considered as separate terms and conditions, and in the event any one shall be held illegal, invalid, or unenforceable, all the other provisions hereof shall remain in full force and effect as if the illegal, invalid, or unenforceable provision were not a part hereof, unless the provision held illegal, invalid, or unenforceable is a material provision of this Agreement, in which case Cytel and Client agree to amend this Agreement with replacement provisions containing mutually acceptable terms and conditions.

12.6       Relationship. The Parties hereunder are independent contractors. Neither Party shall have any right to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other Party. This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership, or other form of a business organization or agency relationship.

12.7       Non-Waiver. The waiver by either Party of a breach or a default of any provision of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power, or privilege that it has, or may have hereunder, operate as a waiver of any right, power, or privilege by such Party.

12.8       Integration; No Amendment. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter hereof. Terms and conditions on any Client purchase order are expressly rejected and superseded by the terms and conditions set forth in this Agreement. No waiver, modification, alteration, or amendment of any of the terms or conditions hereof shall be effective unless and until set forth in a writing duly signed by an officer of Cytel and by Client.

12.9       Assignment. This Agreement, and the rights and obligations hereunder, may not be assigned or transferred by Client, including pursuant to any merger, consolidation, or reorganization, or other transaction or series of related transactions resulting in a change of control of Client, without the prior written consent of Cytel. Any purported assignment or delegation by Client in violation of the foregoing shall be null and void ab initio and of no force and effect. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the Parties.

12.10    Interpretation. The headings to the clauses, sub-clauses, and parts of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. As used in this Agreement, the words “include” and “including,” and variations thereof, will be deemed to be followed by the words “without limitation.” A reference to a particular law is a reference to it as it is in force at the relevant time, taking account of any amendment, extension, or re-enactment, and includes any subordinate legislation then in force.

12.11    Citation. If the Subscribed Services is used by Client to obtain results that are published in a scientific journal or other publication, Client will acknowledge its use of the Subscribed Services with an appropriate citation, which shall include Cytel’s full corporate name and the name of the SaaS Offering used.

12.12    Federal Acquisition Regulations. For agencies of the U.S. Government, the SaaS Offerings and related Cytel Software and Documentation constitute “commercial computer software” and/or “commercial computer software documentation,” respectively, subject to restrictions set forth in applicable provisions of the Federal Acquisition Regulations. Consistent with 48 C.F.R. 227.7202-1 through 227.7202-4, U.S. Government end users acquire no rights to access or use any SaaS Offering, Cytel Software or Documentation except pursuant to the express rights set forth in this Agreement. If the Government has a need for rights not granted under this Agreement, it must negotiate with Cytel to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

12.13    Force Majeure. Cytel shall not be responsible for any failure or delay in the performance of any obligation hereunder, if such failure or delay is due to a cause beyond Cytel’s reasonable control, including acts of God, flood, fire, volcano, epidemic, war, third-party suppliers, labor disputes, or governmental acts.

12.14    Notices. Any notice under this Agreement given by any Party to any other Party shall be in English, in writing, and will be deemed properly given when sent to the intended recipient by certified letter, receipted commercial courier, or electronically receipted e-mail transmission (acknowledged in like manner by the intended recipient) to the respective addresses shown on the Order. Any Party may from time to time change such address or individual by giving the other Party notice of such change in accordance with this Section. Notices to Cytel shall include an emailed copy to software.contracts@cytel.com and legal@cytel.com.

12.15    Signatures. Any Order may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall together be deemed to constitute one and the same instrument. The Parties agree that execution of an Order by industry standard electronic signature software and/or by exchanging PDF signatures shall have the same legal force and effect as the exchange of original signatures, and that in any proceeding arising under or relating to this Agreement, each Party hereby waives any right to raise any defense or waiver based upon execution of an Order by means of such electronic signatures or maintenance of the executed Order electronically.

 

APPENDIX A

Single Sign On

The terms and conditions of this Cytel Addendum for Single Sign On (“Addendum”) supplement the license, subscription or other agreement to which this Addendum is attached (the “Master Agreement”) between Client and Cytel pursuant to which Client is accessing a SaaS Offering (“Cytel Application”). Unless otherwise defined herein, any capitalized term defined in the Master Agreement and used below shall have the same meaning as set forth in the Master Agreement.

RECITALS:

A) The purpose of this Addendum is to set forth certain supplemental terms and conditions to enable Client to use their own identity provider (“IdP”) and Single Sign On (“SSO”) managing access and authenticating to the MyCytel portal and related applications and services (“MyCytel” where Cytel Applications are hosted).

B) The intent of the SSO integration is to ensure that only those individuals designated by Client who are provisioned with access through Client’s IdP will be able to access MyCytel.

In consideration of the mutual promises and covenants contained in the Master Agreement and herein, and of other good and valid consideration, the receipt and sufficiency of which is hereby acknowledged, it has been agreed as follows:

 

1. Client shall designate a qualified administrator (“Client Administrator”) to collaborate with Cytel’s administrator (“Cytel Administrator”) in setting up the SSO integration. The Client Administrator shall be specified in the applicable Order or may be designated by Client by submitting a support ticket to support@cytel.com.
2. Client represents, warrants and covenants that at all times all Client personnel (whether employees, contractors, or others) will be required to authenticate through SSO using Multi-Factor-Authentication (MFA).
3. Client represents and warrants that at all times Client’s IdP is and will remain compatible with Cytel’s SSO integration in order to maintain use of said integration. Client will provide thirty (30) days advance written notice to the Cytel Administrator of any change in its IdP provider.
4. If Client wishes to temporarily integrate its test environment into Cytel’s production environment, then:
   a. Such integration shall not exceed fourteen (14) days; and
   b. No more than 10 authorized Named Users shall access the MyCytel portal and related applications’ production environment with the temporary test integration.
5. Client is solely responsible for deprovisioning personnel in Client’s IdP to terminate access to MyCytel. Further, Client understands and agrees that Client, and not Cytel, will be responsible for any unauthorized access, account takeovers, or fraudulent activity and any losses relating to or arising from such events that occur via Client’s SSO.
6. SSO login events may be tracked by Cytel to ensure compliance with the Master Agreement and this Addendum for additional security and product development purposes.
7. Client is solely responsible for complying with any license or contractual terms between Client and its identity and access management providers. Cytel will have no liability or responsibility pursuant to this Addendum or the Master Agreement, including (but not limited to) any service or access level commitments, in the event Client’s SSO is not functioning and/or not able to access MyCytel.
8. Cytel may amend these terms by providing thirty (30) days’ advance notice to Client pursuant to the terms of the Master Agreement. Client’s access to or use of MyCytel or any related SSO integration following the expiration of such thirty (30) day period shall constitute Client’s acceptance of such amendment. Client’s sole remedy in the event it objects to any such amendment shall be to discontinue any further use of MyCytel and any related SSO integration, and Cytel shall have no liability to Client as a result thereof.

APPENDIX B

Maintenance Services; Service Level Agreement

1. Definitions.

Business Days: Any day other than a Saturday, Sunday, or legal holiday (USA).

Business Hours: Business Days, 6am to 6pm GMT

Problem: a reported, verifiable and reproducible bug, error or similar functional problem with the SaaS Offering that prevents it from functioning substantially in accordance with the applicable Documentation.

Response: Cytel’s first response to Client subsequent to Client submitting a support request via the support channels set forth in Section 4 of this Appendix B.

Solution: Action taken to repair the Problem.

Update: All bug fixes, patches, workarounds, and maintenance releases to the SaaS Offering that Cytel makes available generally to its customers without charging additional fee

Workaround: A temporary measure (which may include, at Cytel’s sole option, a rollback to the previous release of the SaaS Offering) that reduces or eliminates the impact of a Problem for which a full resolution is not yet available.

 

2. Software Support and Maintenance.

Cytel will perform the following functions in an effort to ensure that the SaaS Offering is stable, secure, and functioning in accordance with the service levels set forth in Section 3 of this Appendix B:

(a)           Software Incident Management. Cytel will respond, escalate and use commercially reasonable efforts to resolve Problems in accordance with the service levels provided in Section 3 of this Appendix B.

(b)           Software Maintenance. From time to time, Cytel may provide standard maintenance and make available Updates. Unless otherwise agreed to by the Parties in writing, Client must accept all Updates, provided however, in no event may Client decline more than two (2) consecutive Updates. Client acknowledges and agrees that it is in Cytel’s sole discretion to allow Client to decline an Update (in each instance).

(c)           Excluded Services. Notwithstanding anything to the contrary contained herein, the following shall be excluded from the scope of the support and maintenance services, except to the extent otherwise agreed by the Parties in writing (such as, pursuant to a statement of work for professional services separately ordered by Client):

12. Any issue which, following investigation by Cytel, is determined not to be a Problem in the SaaS Offering, including issues related to hardware configuration and support, operating systems or other Third-Party Offerings or any cause beyond Cytel’s reasonable control including those set forth in Section 12.13 of the Terms;
13. Any issue related to alterations of or modifications to the SaaS Offering made by anyone other than Cytel or its authorized representatives;

iii.           Any services related to support for statistical use, methodology questions or work required to configure or customize reports;

1. The operation of any SaaS Offering other than in accordance with the applicable Documentation or use of any SaaS Offering after Cytel has advised Client to modify its use of the SaaS Offering, if Client did not modify its use as advised by Cytel;
2. Any issues that result from Client’s failure to adhere to any required configurations, use supported platforms, to follow any Cytel policies for acceptable use, or Client’s use of the Subscribed Services in a manner inconsistent with the features and functionality of the Subscribed Services (e.g., attempts to perform operations that are not supported or inconsistent with Cytel’s published guidance);
3. Any other software or items for which Cytel does not provide support and maintenance services to its customer base generally;

vii.          Any issues during or with respect to preview, pre-release, beta or trial versions of a SaaS Offering, feature or software (as determined by Cytel);

viii.        Tracking of and reporting on Problems or other Client issues, other than as may be provided via the contact information provided below (see Section 4 – Support Request below);

1. Reimbursement of the cost or expense of any Client personnel who assist Cytel in the provision of support and maintenance services; and
2. Any issue related to a failure on Client’s part to comply with any of its obligations under this Agreement, including, without limitation, issues resulting from Client’s failure to follow appropriate security practices.

 

3. Service Levels.

(a)           Cytel will use commercially reasonable efforts to address, within the timeframes set forth below, any Problem. Response and Problem resolution are conditioned on the Client submitting the support request in accordance with Section 4 of this Appendix B.

(b)           Cytel will use commercially reasonable efforts to maintain the SaaS Offering through scheduled maintenance and emergency maintenance, as required. The actual hours of scheduled maintenance during this period in any given week shall be referred to as “Scheduled Maintenance.” Additional maintenance may be performed outside of this window if deemed reasonably necessary by Cytel; and Cytel provides advance notice of such additional maintenance as soon as reasonably practicable (such additional maintenance shall be included within the definition of “Scheduled Maintenance”). Cytel shall notify Client in advance of any critical hotfixes to maintain Software environment stability and security.

(c)           Cytel will use commercially reasonable efforts to maintain the online availability of the SaaS Offering at all times.

Severity: Defines the impact that a given Problem has on the SaaS Offering and shall be determined in accordance with the table below. The severity level for a reported Problem is initially set by the person logging the issue and is confirmed during the triage process. Severity can be changed by the Cytel support team if it disagrees with the assigned severity level.

Table 1: Severity Level Descriptions

 

4. Support Requests

During Business Hours, Cytel will provide reasonable email and telephone technical support to answer questions from Client’s designated contact concerning Problems.

Prior to submitting a support request, Client is expected to consult the relevant Documentation and the Knowledge Base available via the MyCytel portal. If Client is unable to resolve the issue by referencing the Documentation and Knowledge Base, then Client may submit a support request to the Cytel support center via the contact information provided below. If Client chooses to make the initial notification via phone, then the Client shall immediately follow up with a written notice to Cytel.

When submitting a support request, Client must furnish all information, including, without limitation, the severity level based on Table 1: Severity Level Descriptions above and provide any assistance requested by Cytel to address the Problem. Without limiting the generality of the foregoing, Client shall promptly furnish sample input and output, provide remote electronic access to the Client’s data and database, provide assistance in isolating and reproducing the suspected Problem, perform diagnostics and tests requested by Cytel, and carry out any required remedial installation or configuration tasks requested by Cytel.

The definitions set forth in Table 1: Severity Level Descriptions above are used for classifying issues. These classifications ensure consistent treatment of Problems handled by Cytel support. Severity Level 3 is the default severity level to which all cases are initially set unless otherwise specified by the Client or the Cytel support engineer. The Cytel support representative handling the case will work with the Client to establish what severity should be assigned.

All new cases will initially be taken and handled by the Cytel support representatives on duty at the time when the Problem is reported. To ensure that progress can continue, if the Client has Severity Level 1 issues, they must provide Cytel with a highly available contact during this period that will assist the support and development organizations with data gathering, testing, and applying all fixes to the service. If Cytel cannot duplicate the Problem in-house, then Cytel support may request assistance to troubleshoot the issue on the Client’s end.

Support requests should always be initiated through the Cytel support service center, rather than by contacting Cytel personnel directly, in order to ensure proper logging and tracking of issues.  The Cytel support service center will determine which Cytel personnel are needed to address each support request.

Cytel support center contact information:

 

MyCytel portal

Telephone Support:

Phone Number:                    +1 617.661.2011 Option 4

Hours of Support:                Business Hours

 

Email Support:

Email Address:                    support@cytel.com

 

5. Resilience and Business Continuity

Recovery Point Objective (“RPO”) (being the maximum amount of data that may be lost when service is restored after an interruption). The RPO will be no more than twenty-four (24) hours.

Recovery Time Objective (“RTO”) (being the maximum time allowed for the recovery of the service following an interruption). The RTO will be no more than twelve (12) Business Hours.

Backup and Recovery: SaaS Offering data is backed up to a secondary location daily. Daily backup is retained for thirty (30) days, weekly backup is retained for fifty-two (52) weeks, monthly backup is retained for twelve (12) months, and yearly backup is retained for seven (7) years.

Disaster Recovery: In the event of a catastrophic SaaS Offering failure, a disaster recovery standby facility is provided to enable operations to failover within twelve (12) Business Hours.