SOFTWARE LICENSE AGREEMENT:
Cytel Inc. is willing to license the software identified below to you (“Licensee”) only upon the condition that you accept all of the terms contained in this license agreement (“Agreement"). Please read this Agreement carefully. Indicate acceptance by selecting the "accept" button at the bottom of the Agreement. If you are not willing to be bound by all the terms, select the "decline" button at the bottom of the Agreement and the download or install process will not continue. By downloading, installing or using this software, you accept the terms of this Agreement.
1.1 “Software” means the Compass computer software provided by Cytel accompanying this Agreement, any Compass packages and any accompanying Compass modules including user documentation.
1.2 “Site” means a physical location under the control of Licensee and identified by a single street address to which the Software is delivered by Cytel.
1.3 “Academic/Non-profit” refers to bona fide educational establishments and registered non-profit research institutes not affiliated with a commercial entity; this definition excludes institutes, branches or departments of governments.
1.4 “Commercial/Government” refers to all organizations, companies, institutes and establishments including branches, institutes or departments of governments, not registered as non-profit research institutes. Includes any establishment excluded in 1.3.
2.1 License Grants: Commercial and Government Use. Subject to the terms and conditions contained herein, and subject to payment of a license fee, Cytel grants Licensee, and Licensee accepts, a non-exclusive, nontransferable license for one user to use a single copy of the Software at the Site during the term of the Agreement. Each licensed seat corresponds to a personal computer on which the Software may be installed and used by one designated person; this license explicitly does not confer the right to run the software on virtual machines; nor does it confer the right to run the software from network server (a separate license may be purchased from Cytel for these capabilities). This license is for use of the executable version of the Software; no rights to receive or use source code are granted by this Agreement.
2.2 License Grants: Academic/Non-profit Use. Subject to the terms and conditions contained herein, and subject to payment of a license fee, Cytel grants Licensee, and Licensee accepts, a non-exclusive, nontransferable license for one user to use a single copy of the Software at the Site during the term of the Agreement. Each licensed seat corresponds to a personal computer on which the Software may be installed and used by one designated person; this license explicitly does not confer the right to run the software on virtual machines; nor does it confer the right to run the software from network server (a separate license may be purchased from Cytel for these capabilities). This license is for use of the executable version of the Software; no rights to receive or use source code are granted by this Agreement. The following restriction applies: For “Academic/non-profit” users, the Software may only be used for academic research and teaching purposes, or for not-for-profit research or projects. The Software may not be used for (a) any commercial purposes, or (b) contract research or consulting services on behalf of any commercial organization or any person or entity with an interest in using the results of such research or services for any commercial purpose. Data and results obtained from use of the Software shall not be shared with commercial organizations, or any person or entity with an interest in using such data or results for any commercial purpose prior to the time such data or results have been disclosed publicly. If Licensee breaches any of these restrictions on use, this license is terminated immediately and Cytel will charge Licensee an additional fee consistent with Cytel’s pricing for commercial Software licenses or seek any other available remedy (including damages, injunctive relief or specific performance).
2.3 Treatment of Software. Licensee is authorized to use the Software only for internal use and only by Licensee’s employees at the Site; Licensee may allow its third party contractors to use the Software at the Site solely for bona fide Licensee projects if Licensee is responsible for such contractor’s use. Licensee may make necessary backup copies of the software.
Except as expressly authorized above, customer shall not: copy the software or documentation; modify, decompile, or disassemble or reverse engineer the software; or rent, lease, distribute, sell, or create derivative works of the software.
2.3 Ownership Rights. The Software and supporting materials and all worldwide intellectual property rights therein are the sole and exclusive property of Cytel and, if applicable, its licensors. All rights not expressly granted by Cytel under this Agreement are reserved by Cytel.
3. Support Services. During the term of this Agreement, Cytel will provide Licensee with Cytel’s customary support services for the Software, including reasonable email and telephone technical support from 9am to 5pm Eastern time, USA.
4. Term and Termination.
4.1 Term. Unless earlier terminated pursuant to Section 4.2, this Agreement shall commence on delivery of the Software and shall continue for a term of one year.
4.2 Grounds for Termination. This Agreement may be terminated by either party in the event the other party materially breaches a provision of this Agreement and the breaching party fails to cure such breach within thirty (30) days of the receipt of notice of such breach from the non-breaching party.
4.3 Effects of Termination. Upon termination of this Agreement, all rights, obligations and licenses of the parties hereunder shall cease, and Licensee shall make no further use of the Software and shall either return to Cytel or destroy originals and all copies of the Software and supporting materials. The provisions of Sections 6 (Warranty and Disclaimer of Warranty), 7 (Infringement Indemnification), 8 (Limitations on Liability), 9 (Compliance with Laws), 10 (Notices), 11 (General Provisions) and this Section 4 shall survive any termination or expiration of this Agreement according to their terms.
5. License Fees. Licensee shall pay Cytel the license fee set forth on the applicable Cytel quotation and agree to the terms therein, for the annual license to use the Software.
6 Warranty and Disclaimer of Warranty. Cytel hereby represents and warrants that the Software will operate in substantial conformance with its accompanying documentation for a period of ninety (90) days after delivery thereof to the Licensee. EXCEPT AS PROVIDED IN THE PREVIOUS SENTENCE, THE SOFTWARE IS BEING PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND CYTEL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE. In no event does Cytel warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions. In the event of any non-conformance with the foregoing warranty, Cytel’s sole obligation and Licensee’s exclusive remedy is for Cytel to replace defective media and to correct any material error or defect in the Software as expeditiously as reasonably possible. This warranty does not apply to problems arising from (i) Licensee's modification or misuse of the Software; (ii) malfunction of Licensee's equipment, operating system, or software not supplied by Cytel; or (iii) attempts to use the Software in a manner or purpose for which it was not intended.
7.1 Except as provided below, Cytel shall defend and indemnify Licensee from and against any damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of any claim that the Software infringes a valid patent, copyright or other intellectual property right or misappropriates a trade secret of a third party, provided that (i) Licensee promptly provides Cytel written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) Cytel shall have sole control and authority with respect to the defense, settlement, or compromise thereof. Should any Software become or, in Cytel’s opinion, be likely to become the subject of an infringement claim, Cytel may, at its option, (1) procure for the Licensee the right to continue using such Software, (2) replace or modify such Software so that it becomes non-infringing while retaining substantially equivalent functionality, or, if (1) and (2) are not reasonably available to Cytel, then (3) terminate Licensee’s license to the allegedly infringing Software and refund the license fee paid by Licensee for the then current term, less a pro rata amount attributable to Licensee’s prior use of the Software during such term.
7.2 Cytel shall have no liability or obligation to Licensee hereunder with respect to any patent, copyright, trade secret or other intellectual property infringement, misappropriation or claim thereof based upon (i) use of the Software by Licensee in combination with products or software not provided by Cytel, or (ii) modifications, alterations or enhancements of the Software not created by or for Cytel.
7.3 The foregoing states the entire liability of Cytel and Licensee’s exclusive remedy with respect to infringement of patents, copyrights, trade secrets and other intellectual property rights by the Software or any part thereof or by its operation.
7.4 Licensee understands that the results obtained from Licensee’s use of the Software are solely dependent on Licensee’s inputs into, and appropriate operation of, the Software. Licensee agrees to thoroughly test and verify the results obtained from its use of the Software and to be solely responsible for any damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of any claim related to any clinical trial or other activity for which Licensee elects to use the Software. Licensee shall indemnify, defend and hold Cytel harmless against all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) which arise from Licensee’s use of the results generated from Licensee’s use of the Software.
8. Limitations on Liability. IN NO EVENT WILL CYTEL’S AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY FOR ANY LOSSES OR DAMAGES THAT ARISE OUT OF THE PERFORMANCE OR BREACH OF THIS AGREEMENT (EXCEPT AS STATED IN SECTION 7.1), WHETHER IN CONTRACT, TORT, OR OTHER FORM OF ACTION, EXCEED THE TOTAL FEES PAID TO CYTEL UNDER THIS AGREEMENT. IN NO EVENT SHALL CYTEL OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF GOODWILL, DATA LOSS OR BUSINESS DISRUPTION.
9. Compliance with Export Laws. Licensee shall not export, directly or indirectly, the Software, or other information or materials provided by Cytel hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval.
10. Notices. Any notice or communication from one party to the other shall be in writing and either personally delivered or sent via confirmed facsimile or certified mail, postage prepaid and return receipt requested addressed, to such other party at its principal business address or the address specified in writing by such party. Notices to Cytel shall be sent to Cytel Software, Inc., 675 Massachusetts Avenue, Cambridge, MA 02139, Attn: President and CEO. All notices shall be in English and effective upon receipt.
11. General Provisions.
11.1 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.
11.2 No Agency; Independent Contractors. Nothing contained in this Agreement shall be deemed to imply or constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
11.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A., without regard to its choice of law provisions. Any action or proceeding arising from or relating to this Agreement shall be brought in the state or federal courts within the Commonwealth of Massachusetts, and each party irrevocably submits to the jurisdiction and venue of such courts in any such action or proceeding.
11.4 Entire Agreement; Amendment. This Agreement and the applicable Cytel quotation and invoice constitute the entire agreement between the parties with regard to the subject matter hereof. Terms and conditions on any Licensee purchase order are expressly rejected and superseded by the terms and conditions set forth in this Agreement. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing and accepted by the party to be bound, and then such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
11.5 Costs, Expenses and Attorneys’ Fees. If either party commences any action or proceeding against the other party to enforce or interpret this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party the actual costs, expenses and reasonable attorneys’ fees (including all related costs and expenses), incurred by such prevailing party in connection with such action or proceeding and in connection with obtaining and enforcing any judgment or order thereby obtained.
11.6 Assignment. The rights and obligations of each party hereunder may not be assigned, sublicensed or otherwise transferred without the prior written approval of the other party. This Agreement shall be binding upon permitted successors and assigns.
11.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and such decision shall not affect the validity or enforceability of any or all of the remaining provisions.
11.8 Acknowledgment. If the Software is used by Licensee to obtain results that are published in a scientific journal or other publication, Licensee will acknowledge its use of the Software with an appropriate citation, which shall include Cytel’s full corporate name and the name of the Software product used.
11.9 Government Restricted Rights. For agencies of the U.S. Government, use, duplication, or disclosure of the Licensed Software by the U.S. Government is subject to restrictions as set forth in provisions of the Federal Acquisition Regulations applicable to “commercial computer software” and/or computer software with “restricted rights.” The Licensed Software constitutes “commercial computer software” and “commercial computer software documentation,” as such terms are used in the Code of Federal Regulations. Consistent with 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Licensed Software with only those rights set forth in this Agreement.
BY CLICKING ON THE “ACCEPT” BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.