END-USER LICENSE AGREEMENT
THIS END-USE LICENSE AGREEMENT (“Agreement”), is made and entered into by and between Vivonoetics, Inc (hereafter, “Licensor”), and the Person, Company, or Organization that has licensed this software, (hereafter, “Licensee”). The parties hereby agree, as follows:
1. DEFINITIONS. IN ADDITION TO ALL OTHER TERMS DEFINED IN THIS AGREEMENT, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
1.1. “Authorized user” means any current employee of Licensee, subject to all export restrictions as set forth in Section 3.4 of this Agreement.
1.2. “Documentation” means any and all user documentation accompanying the Software, as described in more detail in Part 1 of Appendix A attached hereto and by this reference incorporated herein.
1.3. “Feedback” shall have the meaning set out in Section 6.1 of this Agreement.
1.4. “Install and Execute” means to only load into the temporary memory (e.g. RAM) or install into the permanent memory (e.g., hard disk, CD-ROM, or other storage device) of one (1) personal computer of the Licensee located at the Site and to execute the functionality of the Software or view the Documentation.
1.5. “IP Rights” means all intellectual property rights throughout the universe, whether existing under statute or at common law or equity, now or hereafter in force or recognized, including but not limited to: (a) copyrights, trade secrets, trademarks, patents, inventions, designs, logos and trade dress, “moral rights,” mask works, publicity rights, privacy rights and any other intellectual property and proprietary rights; and (b) any application or right to apply for any of the rights referred to in clause (a), and any and all renewals, extensions and restorations thereof.
1.6. “Maintenance” shall have the meaning set out in Section 12 of this Agreement.
1.7. “Proprietary Information” shall have the meaning as set forth in Section 6 of this Agreement.
1.8. “Site” means any location that is a place of business or a facility owned, leased or otherwise operated by the Licensee or any location where the Licensee conducts business or investigations with a personal computer, portable computer or laptop.
1.9. “Software” means only a machine executable copy of the object code of Licensor’s software program entitled “VivoSense® described in more detail in Part 3 of Appendix A attached hereto and by this reference incorporated herein, and a machine executable copy of the object code of any Updates provided to Licensee as set forth in Appendix C of this Agreement.
1.10. “Term” shall have the meaning set out in Section 7.1 of this Agreement.
1.11. “Training” shall have the meaning set out in Section 11 of this Agreement.
1.12. “Updates” means error corrections and fixes to the version of the Software licensed by Licensee pursuant to this Agreement that Licensor make generally available at no additional charge in its sole discretion to all of its licensees who are subscribing to Maintenance and who are current in payment of their Maintenance fees; Updates do not include upgrades or new versions of the Software developed by Licensor during the Term of this Agreement that contain significant new features or functionality.
2. GRANT OF LICENSE.
2.1. Subject to Licensee’s compliance with all of the terms and conditions of this Agreement, Licensor hereby grant to Licensee, during the Term of this Agreement only, and further subject to the payment of all applicable fees by Licensee, a revocable, non-exclusive, non-assignable, non-transferable and limited license to:
2.1.1. Install and Execute one copy only of the Software on one personal computer located at the Site for the sole purposes of internal use; and
2.1.2. Install and execute one copy only of the Documentation and make a reasonable number of printed copies from the Documentation provided in electronic form, at the Site and solely as necessary in connection with Licensee’s permitted internal use of the Software.
2.2. If Licensee has purchased multiple licenses for the Software, then at any time Licensee may Install and Execute as many copies of the Software and Documentation as Licensee has licenses, each on a single personal computer, for internal use at the Site only.
2.3. Licensee may install the Software on a computer server, so long as Licensee obtains a separate Software license from Licensor for each personal computer or other unit accessing the Software on such server.
3.1. Licensee agrees that it will not itself, or through any parent, subsidiary, affiliate, agent or other third party do any of the following, the occurrence of any one of which shall constitute a breach of this Agreement by Licensee: (i) sell, market, lease, rent, encumber, license, distribute, sublicense, use for third party training, commercial time-sharing or service bureau use, give away or otherwise transfer the Software or Documentation or any rights, title or interest to the Software or Documentation; (ii) use the Software or Documentation on more than one (1) processor at any one time on any one corresponding computer of the Licensee; (iii) copy, modify, adapt, alter, translate, disclose or create derivatives of the Software or Documentation, including, but not limited to, providing, disclosing, divulging or making available to, or permitting access or use of, the Software, Documentation, or Proprietary Information by, any third party or any non Authorized user without Licensor’s prior written consent; (iv) embed, incorporate, merge or combine the Software or Documentation into any software, program, application, services, semiconductor chip or other hardware; (v) decompile, disassemble, or reverse engineer the Software in whole or in part, or otherwise attempt to derive or discover the source code for the Software; (vi) write or develop any derivative software of any other software program based upon the Software, Documentation, or any Proprietary Information; (vii) use any information derived from the Software, Documentation or Proprietary Information or derived from evaluating the Software, Documentation or Proprietary Information to create or cause to be created any other software program performing substantially the same function(s) as the Software, Documentation or Proprietary Information or functioning in substantially the same manner as the Software, Documentation or Proprietary Information; or (viii) disclose the Documentation or Proprietary Information, including without limitation Feedback, to any third party without Licensor’s prior written consent, which Licensor may withhold in their sole discretion.
3.2. Licensee agrees that in the event section 3.1 is breached, to the maximum extent permitted by applicable law, any copy, modification, adaptation, alteration, translation, disclosure, merger, combination or created derivative of or based on the Software and Documentation will be the sole property of Licensor and shall be deemed to be, and treated as, Licensor’s Proprietary Information as contemplated by Section 6.2 of this Agreement.
3.3. Licensee shall not remove, alter, cover or obscure in any way any copyright and patent notices or other Proprietary Information notices of Licensor or any other party placed on or embedded in the Software or Documentation. Licensee shall reproduce all titles, trademark symbols, copyright symbols and legends and other proprietary or restrictive markings or legends on all copies of the Software made by or for Licensee.
3.4. Licensee acknowledges that the Software, Documentation and other Proprietary Information to be provided under this Agreement may be subject to the export control laws and regulations of the United States of America, any amendments thereof, and to administrative acts of the U.S. Government pursuant to such laws and regulations which restrict exports and re-exports of goods and technology (the “U.S. Export Control Laws”).
3.5. In the event any US Export Control Law or any other United States law or regulation prohibits Licensor from granting to Licensee the license as set out in Section 1.2 as contemplated by this Agreement, then Licensor shall have the right, upon notice to Licensee, to immediately terminate this Agreement (including, but not limited to, the underlying grant of license), in which case Licensor shall have no further obligations to Licensee pursuant to this Agreement.
4. PAYMENT OF LICENSE FEE.
4.1. In consideration of the license granted in Section 2.1 above, and in addition to any other fees and payments contemplated by this Agreement including, but not limited to, any Maintenance Fees pursuant to Appendix “C” attached hereto, upon the Effective Date of this Agreement, Licensee shall pay the license fee (“License Fee”) determined at the sole discretion of the Licensor, in connection with each personal computer at the Site. To use the Software on another personal computer or at another Site, the Licensee must pay additional Licensee Fees.
4.2. All charges and fees provided for in this Agreement, including, but not limited to, the License Fee, are exclusive of and do not include any taxes, duties, or similar charges imposed by any government. Licensee agrees to pay or reimburse Licensor for all federal, state, dominion, provincial, or local sales, use, personal property, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes on the net income of Licensor).
5. RESERVATION OF RIGHTS; TITLE; AUDIT RIGHTS.
5.1. The parties agree that Licensor reserves all rights not expressly granted herein including, without limitation, all rights to IP Rights, modification rights, rental rights, and all other Proprietary Information, title, and interest in and to the Software, Documentation, and other Proprietary Information and any derivatives or improvements thereto. Without limiting the generality of the foregoing, Licensee agrees, at its sole cost and expense, to cooperate with Licensor in order to vest more fully in Licensor all of these IP Rights.
5.2. Without limiting the generality of the foregoing, the Software, Documentation, and all other Proprietary Information, and all IP Rights therein, are owned by Licensor (or any third party licensor that has granted license rights to Licensor) and are proprietary to Licensor. The Software is protected by United States copyright and other intellectual property laws and under international treaty provisions.
5.3. Licensee agrees to keep all usual and proper books of account and records and all usual and proper entries and other documentation relating to Licensee’s use of the Software and Documentation and Licensee’s obligations under this Agreement. During the two (2) year period immediately following the expiration or termination of this Agreement, Licensor shall have the right upon fourteen (14) days advance notice to Licensee to cause an audit and inspection to be made of the Licensee’s compliance under this Agreement, including without limitation deployment and use of the Software and Documentation. Such audit shall be conducted by independent, third party auditors (which may include technical auditors) selected by Licensor and all information disclosed and/or provided to such auditors in connection with such audit will be subject to an appropriate prior written confidentiality agreement. Any such audit shall be paid for by Licensor unless material discrepancies are disclosed in the auditors’ report(s). If material discrepancies are disclosed, Licensee agrees to pay for the costs associated with the audit, the discrepancy, plus interest on the discrepancy at the highest prime rate set forth from time to time during the period of discrepancy in the Wall Street Journal in the United States plus two percentage points (or, if less, at a rate equal to the highest rate permitted under applicable law).
6. PROPRIETARY INFORMATION.
6.1. In the course of Installing and Executing the Software and Documentation, Licensee may provide to Licensor, or otherwise develop, data (whether oral, written, electronic, or otherwise) with regard to: (i) any problems or deficiencies in the Software or encountered by Licensee; (ii) any suggestions, requirements, ideas or desires of Licensee with respect to the Software and Documentation; and, (iii) other data collected that is related to or arising from Installing and Executing the Software and Documentation (hereinafter, collectively referred to as the “Feedback”). Parties are entitled to use all Feedback for the sole purpose of providing technical and product support to Licensee. Parties shall treat all Feedback as confidential information and will not disclose, reproduce, or otherwise distribute the Feedback for any purpose without express written permission from Licensor.
6.2. Licensee acknowledges that the Software, Documentation and any ideas, concepts, methods, know-how, structures, techniques, inventions, developments, discoveries and other non-public information embodied therein or disclosed to Licensee in connection with the Software and Documentation constitute valuable confidential and proprietary information and trade secrets of Licensor (the “Proprietary Information”). Proprietary Information does not include information that Licensee can document to Licensor’s sole satisfaction: (i) was generally known to the public at the time disclosed by Licensor; (ii) became generally known to the public other than through a breach of this Agreement by Licensee after the time of disclosure to Licensee by, or on behalf of, Licensor; (iii) was in Licensee’s possession, free of any obligation of confidentiality at the time of disclosure to Licensee by, or on behalf of, Licensor; (iv) was rightfully received by Licensee from a third party, free of any obligation of confidentiality after disclosure by, or on behalf of, Licensor to Licensee; or (v) was independently developed by Licensee without reference to, or use of, Proprietary Information disclosed by, or on behalf of, Licensor or by otherwise breaching any provision of this Agreement. Licensee may disclose Proprietary Information as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law; provided, however, Licensee must (i) give Licensor reasonable written notice to allow Licensor to seek a protective order or other appropriate remedy (except to the extent Licensee’s compliance with the foregoing would cause it to violate a court order or other legal requirement); (ii) disclose only such portion of information as is required by the governmental entity or otherwise required by law, and protect the remainder of the Proprietary Information; and (iii) use commercially reasonable efforts to obtain confidential treatment (e.g., by protective order or equivalent) for any Proprietary Information so disclosed.
6.3. Licensee agrees that it shall use Proprietary Information solely as necessary in connection with Licensee’s permitted internal use of the Software, and for no other purpose, and otherwise in accordance with the terms and conditions of this Agreement. Without in any way limiting the foregoing or any other provisions in this Agreement that may limit Licensee’s use of the Proprietary Information of Licensor, Licensee agrees (i) it will not disclose, give access to, or otherwise distribute any of Licensor’s Proprietary Information to any third party, including, but not limited to, any of Licensee’s affiliates; (ii) it will not copy or otherwise reproduce any of Licensor’s Proprietary Information; and (iii) will take the greater of: (1) commercially reasonable security precautions or (2) precautions that are at least as protective as the precautions it takes to preserve its own confidential and proprietary information of a similar nature, to keep Licensor’s Proprietary Information confidential.
6.4. Licensee agrees to (i) mark all of Licensor’s Proprietary Information it receives as “Proprietary and Confidential Information” and (ii) segregate such Proprietary Information from the confidential information and materials of others (including Licensee’s own confidential information) to prevent commingling. Licensee will restrict the possession, knowledge and use of any Proprietary Information of Licensor’s to only those Authorized users who have a need to know the specific Proprietary Information in connection with their operation of the Software. Licensee will ensure that it has executed and maintains appropriate written agreements with all Authorized users sufficient to restrict such Authorized users’ use, disclosure, and distribution of the Proprietary Information consistent with Licensee’s obligations under this Agreement. Licensee will ensure that its officers, directors, employees, contractors, agents and affiliates comply with this Agreement and their respective nondisclosure agreements, and Licensee agrees to be responsible for any improper use or disclosure of Licensor’s Proprietary Information by any such individual or entity.
6.5. At Licensor’s request, at any time and from time to time, Licensee will (i) promptly return all originals, copies, reproductions and summaries of Licensor’s Proprietary Information; or (ii) at Licensor’s option and request, destroy the same and provide written certification by an officer of destruction to Licensor.
6.6. Licensee will notify Licensor immediately upon (i) discovery of any unauthorized use or disclosure of any Proprietary Information; or (ii) any breach of this Agreement by Licensee, and Licensee will cooperate with Licensor in every reasonable way, at Licensee’s expense to help Licensor regain possession of the Proprietary Information and prevent further unauthorized use or disclosure. In the event of actual or threatened breach of this Section 6, the parties acknowledge and agree that Licensor may have no adequate remedy at law and will be entitled to seek immediate injunctive and other equitable relief. For sake of clarity, and not by way of limitation, the provisions of this Section 6 shall survive the cancellation, termination, and expiration of this Agreement.
6.7. Licensor shall not disclose, suggest or otherwise indicate that Licensee has entered into this Agreement, including the Licensor’s cost, that any copy of the Software and Documentation has been provided to Licensee, that Licensee has made previous, current or future use of any copy of the Software and Documentation, or that Licensee has considered such use, without express written permission from Licensee.
7.1. Term. Unless earlier terminated in accordance with the terms and conditions of this Agreement, the term of this Agreement, including without limitation, the underlying license set out in Section 1.2, shall run from the Effective Date of this Agreement until the specified expiration date per module purchased. Expiration dates are specified in the Software and may be up to one year or indefinite (the “Term”).
7.2. Renewal. If Licensor retains the rights to the Software and Documentation, Licensee may, in its discretion, elect to renew only the maintenance module component of this license agreement for an additional period of one (1) consecutive year, commencing upon expiration of the original Term described in Section 7.1, at an additional renewal fee (“Renewal Fee”) to be determined at the sole discretion of Licensor.
7.3. Termination. In the event the Licensee breaches any of the terms and conditions set forth in this Agreement, Licensor shall have the right, but not the obligation, to terminate this Agreement, including without limitation the underlying license, upon one (1) days’ notice to Licensee, and, upon the expiration of said one (1) day period, this Agreement shall terminate.
7.4. Effect of Termination. Upon termination for any reason, Licensee shall immediately stop using the Software, Documentation and all other Proprietary Information then in its possession or direct or indirect control and shall return to Licensor all copies of the Software, Documentation and other Proprietary Information and shall certify in writing that all copies have been returned or destroyed and that the copy of the Software, Documentation and other Proprietary Information on hard disk or storage device enabling use by electronic means has been permanently erased.
8. LIMITED WARRANTY. SOFTWARE IS PROVIDED “AS IS”. YOUR EXCLUSIVE REMEDY AND VIVONOETICS’S ENTIRE LIABILITY UNDER THIS LIMITED WARRANTY WILL BE AT VIVONOETICS’S OPTION TO REPLACE SOFTWARE OR REFUND THE FEE PAID FOR SOFTWARE. ANY IMPLIED WARRANTIES ON THE SOFTWARE ARE LIMITED ONE YEAR. SOME STATES DO NOT ALLOW LIMITATIONS ON DURATION OF AN IMPLIED WARRANTY, SO THE ABOVE MAY NOT APPLY. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE TO STATE.
9. DISCLAIMER OF WARRANTY. UNLESS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
10. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL VIVONOETICS OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF VIVONOETICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL VIVONOETICS’S LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID FOR SOFTWARE UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE TERMS ABOVE MAY NOT BE APPLICABLE.
10.1. THE VIVOSENSE® SOFTWARE IS NOT A MEDICAL DIAGNOSTIC TOOL AND IS FOR RESEARCH PURPOSES ONLY. BUYER ACKNOWLEDGES AND AGREES THAT SELLER DOES NOT PERFORM DIAGNOSTIC, MEDICAL, OR PATIENT CARE SERVICES. ANY INFORMATION PROVIDED BY SELLER OR THE PRODUCTS IS NOT INTENDED TO BE, OR TO REPLACE, MEDICAL ADVICE OR REVIEW BY A PHYSICIAN.
10.2. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY LICENSEE MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED, EXCEPT THAT AN ACTION FOR NON-PAYMENT WILL BE LIMITED ONLY BY THE STATUTE OF LIMITATIONS FOR THE STATE OF CALIFORNIA, USA.
11. TRAINING AND SUPPORT. Training and support, if any, that may be provided by licensor to licensee on the use of the software and documentation shall be provided to the extent set forth in, and pursuant to the terms and conditions of, Appendix B attached hereto and by this reference incorporated. Licensor shall have no obligation whatsoever to provide any training and support to licensee and any training and support is at the sole discretion of the licensor.
12. MAINTENANCE. Maintenance for the software, if any, shall be provided pursuant to the terms of a separate maintenance agreement signed by both parties as set forth in Appendix C attached hereto and by this reference incorporated herein. If Appendix C does not provide for any maintenance by licensor, then licensor shall have no obligation whatsoever to provide any such maintenance to licensee.
13. NOTIFICATION REGARDING U.S. GOVERNMENT RIGHTS.
13.1. The Software and Documentation is a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation.” Except for United States Government purchases or acquisitions under the authority of FAR Part 12 under FAR 12.212, any Use, duplication, or disclosure by the US Government of the Software or Documentation is subject to the restrictions and protections under DFAR 252.227-7015, Technical Data-Commercial Items (Nov. 1995), and is subject to the restrictions and protections set forth in this Agreement as prescribed in DFAR 227.7202[-4] (June 1995), [FAR 27.405, Other Data Provisions (August 1998)] or, as applicable, FAR 52.227-19, Commercial Computer Software-Restricted Rights (June 1987).
14.1. Upon a party’s receipt of written notice from the other party, the parties will first attempt to resolve any dispute or actions for breach under this Agreement through good faith negotiations for a time period of no less than five (5) business days, but no more than ten (10) business days, unless mutually agreed to by the parties in writing (hereinafter, the “Initial Negotiations”). If the parties fail to resolve any dispute or action for breach through such Initial Negotiations as set out in the above provision, the parties agree to resolve such disputes or actions by binding and final arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The arbitration shall take place in the County of San Diego, State of California, USA.
14.2. After the expiration of the Initial Negotiations, either party may initiate arbitration at any time thereafter related to a dispute between the parties by providing a notice of arbitration (“Arbitration Notice”) to the other party. The Arbitration Notice must contain a short and plain statement of any dispute sufficient to inform the other party of: (i) the nature of the dispute, (ii) the initiating party’s position, and (iii) the relief that party is seeking. The other party must within ten (10) days after receipt of the Arbitration Notice provide an answer thereto including that party’s statement of the nature of the dispute, any counterclaims, and any relief requested. The initiating party will then have five (5) days to deliver a reply to any counterclaim provided in the answer.
14.3. The parties may conduct discovery as provided under the Commercial Arbitration Rules of the American Arbitration Association to the extent permitted by the arbitrator. In determining whether or not to permit discovery, and in limiting the scope of discovery, the arbitrator(s) will take into account the intent of the parties that arbitration be swift and less costly than civil litigation.
14.4. Each party will appoint an arbitrator of his or her choice, obtain its appointee’s acceptance of such appointment, and deliver written notification of such appointment and acceptance to the other party within thirty (30) days after delivery of the Arbitration Notice. Within fifteen (15) days after both parties have appointed an arbitrator, the party-appointed arbitrators will jointly appoint the third arbitrator, obtain the appointee’s acceptance of such appointment, and notify the parties in writing of such appointment and acceptance. The arbitrators must be lawyers admitted to the Bar of the State of California, USA who have practiced law for ten (10) years and have significant experience in computer software development and licensing. The arbitrators will determine the rights and obligations of the parties according to the substantive law of California (excluding conflicts of law principles) as though acting as a court of that state. The arbitration award shall be based on and accompanied by a written opinion containing findings of fact and conclusions of law.
14.5. The arbitrator(s) shall be bound to follow the provisions of this Agreement in resolving the dispute, and may not award punitive damages. The decision of the arbitrator(s) shall be final and binding on the parties, and any award of the arbitrator(s) may be entered or enforced in any court of competent jurisdiction.
14.6. The fees and all expenses of the arbitration and arbitrators shall be advanced equally by the parties, and each party shall be responsible for its own attorneys’ fees in connection with arbitration. Notwithstanding the foregoing, the parties’ final responsibility for all arbitration fees and related attorneys’ fees and expenses shall be subject to the final decision of the arbitrators.
14.7. The parties recognize that a violation of this Agreement, including without limitation the underlying license set out in Section 2.1, would cause irreparable injury to Licensor, and therefore the parties agree that notwithstanding any other provision of this Agreement, Licensor may apply to any court having jurisdiction to enforce the specific performance of this Agreement and for injunctive relief against any act that would violate same.
14.8. The parties hereby declare their intent that any arbitration proceeding must be completed within ninety (90) days after the parties have agreed upon the arbitrators.
15. MISCELLANEOUS PROVISIONS.
15.1. Non-Exclusivity. This Agreement is non-exclusive and neither party has any exclusive obligations to the other with respect to the subject matter hereof provided that the parties may not take actions that would violate the terms and conditions of this Agreement, including without limitation all Attachments, Appendices and Appendices to this Agreement. Licensee acknowledges that Licensor have full right to license and distribute the Proprietary Information in any manner as desired by Licensor, and to any parties as desired by Licensor, including but not limited to any competitors of Licensee, commercial or otherwise. Licensor acknowledge that Licensees have no obligation to meet their needs for software of the type that is the subject of this agreement from Licensor.
15.2. Notices. All notices or other written communications required or permitted to be given under any provision of this Agreement, including without limitation changes of name or address to which such notices or other written communications are to be delivered under this Section 13.2, shall be deemed to have been given by the notifying party if mailed by certified mail, return receipt requested, to the receiving party addressed to its mailing address set out below, or such other address as a party may designate in writing to the other party. Additionally, notices sent by any other means, including without limitation U.S. mail, facsimile, overnight delivery, courier, e-mail, etc., may be acceptable subject to written confirmation of both the transmission and receipt of the notice. All notices shall be given or made to:
27 Dorian, Newport Coast, CA 92657
15.3. Compliance with Applicable Laws and Regulations. Each party acknowledges and agrees that the products, services, software, information and Intellectual Property to be shared under this Agreement, including without limitation technical services and technical data such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded, hereunder may be subject to certain laws, regulations and rules, including without limitation the export control laws and regulations of the United States of America, any amendments thereof, and all administrative acts of the U.S. Government pursuant to such laws and regulations which restrict exports and re-exports of goods and technology (collectively the “U.S. Export Control Laws”), and each party agrees to comply with such applicable laws, regulations and rules, including without limitation the U.S. Export Control Laws, and not to be bound by terms of this Agreement in conflict with such applicable laws, regulations and rules. Licensee agrees to establish such programs and procedures of internal controls as required by U.S. Export Regulations, and to cooperate at all times with Licensor in the enforcement and/or audit of such procedures. Company further agrees not to take any action under this Agreement that will cause it or Licensor to be in violation of any law of any jurisdiction, including without limitation, the U.S. Foreign Corrupt Practices Act of 1977, the U.S. Export Administration Act (“EAA”), and other U.S. Export Control Laws, and the U.S. Anti Boycott laws, including those provisions of the EAA concerning participation in unsanctioned boycotts.
15.4. Force Majeure. Neither party shall be liable for any failure of or delay in performance of its obligations (except for payment obligations, if any) under this Agreement to the extent such failure or delay is due to acts of God, acts of a public enemy, fires, floods, power outages, wars, civil disturbances, sabotage, terrorism, accidents, insurrections, blockades, embargoes, storms, explosions, labor disputes (whether or not the employees’ demands are reasonable and/or within the party’s power to satisfy), failure of common carriers, Internet Service Providers, or other communication devices, acts of cyber criminals, terrorists or other criminals, acts of any governmental body (whether civil or military, foreign or domestic), failure or delay of third parties or governmental bodies from whom a party is obtaining or must obtain approvals, authorizations, licenses, franchises or permits, inability to obtain labor, materials, power, equipment, or transportation, or other circumstances beyond its reasonable control (collectively referred to herein as “Force Majeure Occurrences”). Any such delays shall not be a breach of or failure to perform this Agreement or any part thereof and the date on which the obligations hereunder are due to be fulfilled shall be extended for a period equal to the time lost as a result of such delays. Neither party shall be liable to the other for any liability claims, damages or other loss caused by or resulting from a Force Majeure Occurrence.
15.5. Entire Agreement. This Agreement (including without limitation all Appendices, Appendices and Attachments, which are hereby incorporated by reference) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, supersedes and replaces any and all prior or contemporaneous proposals, agreements understandings, commitments or representations of any kind, whether written or oral, relating to the subject matter hereof or the services to be performed hereunder, including but not limited to, the Terms and Conditions attached to any Purchase Order relating to the subject matter of this agreement.
15.6. Modification; Waiver. Any modification or waiver of this Agreement or parts of this Agreement, including without limitation any marketing statement, must be in writing, specifically referencing this Agreement, and signed by an authorized representative of the party against whom enforcement of the purported modification or waiver is sought. Any failure to exercise any right, remedy or option or any other waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of that provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions will not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement, nor in any way affect the validity of this Agreement.
15.7. Binding Effect; Assignment. This Agreement is to extend to and be binding upon and inure to the benefit of the parties hereto and their successors and assigns. Company will not make an assignment of, or otherwise transfer or convey, any of its rights or delegate any of its duties under this Agreement in whole or in part to any party, without the prior written consent of Licensor, and any such assignment or transfer shall be null and void. For sake of clarity and not by way of limitation, either party may, without violation of this Section 13.7, engage the services of independent contractors to assist in the performance of its duties hereunder.
15.8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California in all respects without giving effect to the principles of conflicts of law thereof.
15.9. Construction. This Agreement has been negotiated by the parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party, including without limitation, no provision of this Agreement shall be construed against or interpreted to the disadvantage of any party hereto by any court or other Governmental Authority by reason of such party’s having or being deemed to have structured or drafted such provision.
15.10. Relationship Of Parties. The parties agree that they are acting as independent contractors and not as partners or joint venturers, and under no circumstances shall any of the employees of one party be deemed the employees of the other for any reason or purpose. This Agreement shall not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other.
15.11. Severability. If any covenant, condition, term or provision of this Agreement is held or finally determined to be invalid, illegal or unenforceable, in any respect, in whole or in part, such covenant, condition, term or provision shall be ineffective to the extent, but only to the extent of, such invalidity, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions of this Agreement, unless such a construction would be unreasonable.
15.12. Third Party Beneficiaries. This Agreement does not create, and shall not be construed as creating, any rights or interests enforceable by any person not a party to this Agreement. This Agreement is not intended to be for the benefit of any third party and shall not confer upon any third party any right, privilege, remedy, claim or other right.
15.13. Good Faith Efforts. Each party will at minimum use good faith efforts to fulfill its obligations under this Agreement.
15.14. Headings. The captions and headings used in this Agreement are solely for convenience of reference of the parties and shall not be used or given effect in the construction and interpretation of this Agreement, and will not limit or otherwise affect any of the terms or provisions hereof.
15.15. Rights and Remedies Not Exclusive. Unless otherwise expressly stated herein, no right or remedy of a party expressed herein shall be deemed exclusive, but shall be cumulative with, and not in substitution for, any other right or remedy of that party.
15.16. Conflicting Provisions. This Agreement and all of the Appendices, schedules, and documents attached hereto are intended to be read and construed in harmony with each other, but in the event any provision in any attachment conflicts with any provision of this Agreement, then this Agreement shall be deemed to control, and such conflicting provision, to the extent it conflicts, shall be deemed removed and replaced with the governing provision herein.
15.17. Multiple Copies or Counterparts of the Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument and be binding upon the Parties. This Agreement shall not be effective until the execution and delivery between each of the parties of at least one set of the counterparts.
15.18. Legal Remedy Against Third Parties. This agreement in no way imposes a duty or obligation on Licensor to pursue via lawsuit or other legal remedy a claim or action against any third party allegedly infringing, copying or otherwise in wrongful possession of any of Licensor’s IP Assets. This agreement in no way imposes a duty or obligation on Licensor to share with Licensee any damages or injunctive relief obtained by Licensor by way of a suit or other legal remedy in which Licensor engage regarding Licensor’s IP Assets.
PART 1– DESCRIPTION OF DOCUMENTATION:
The documentation is provided over the internet for download by the Licensee and may include one user guide per available VivoSense® module. The user guides are documents authored by Licensor, copyright April 20, 2010. The documentation provides a graphical and textual description of operation of the VivoSense® software tool from VIVONOETICS, INC, including how to import data, visualize and process data and export data.
PART 2– SITE:
The Site is as described in Section 1.8.
PART 3– DESCRIPTION OF SOFTWARE:
This software can be described as a tool for import, visualization, processing and export of physiological data recorded on supported physiological sensors. The Software is provided as object code in an application format installable and executable on a WINDOWS® based personal computer (PC) operating system after installation of a valid license file by the Licensee. The Software is provided over the internet for download by the Licensee. One distinct valid product key granting access to one and only one copy of the Software is provided via email by Licensor for every licensed copy of the Software.
The Software is configured such that it can be installed and executed on only one PC. Once installed on a single PC, the software cannot be transferred to another PC even if the Software is first uninstalled and removed from the original PC without intervention by Licensor in Licensor’s sole discretion. Modular components of the software may be Term-limited and will make themselves accessible to the Licensee for the full extent of the Term only. Upon expiration of the Term, those Software modules are configured to prevent further access by the Licensee without intervention by Licensor in Licensor’s sole discretion.
SUPPORT AND TRAINING
1. SUPPORT AND TRAINING SERVICES
1.1 Licensor is not obligated to provide any support or training.
1.2. Licensor may provide support and/or training services related to the Software (“Support Services”) at the sole discretion of the Licensor. Support and/or training services are limited to the primary licensed version of the software. Licensor may use a variety of methods (e.g., Internet FAQ’s, training videos, user forums and e-mail) to provide technical support and maintenance for the software.
1.3. Support and/or training services (e.g. e-mail correspondence, web based in-product training and phone support) may be purchased from Licensor and will be subject to the terms and conditions of a separate agreement described at the time of purchase.
1.4. Any supplemental software code provided by Licensor as part of the Support and/or training services is considered part of the Software and subject to the terms and conditions of this EULA. Licensee acknowledges and agrees that Licensor may use technical information provided to Licensor as part of the Support Services for its business purposes, including for product support and development. Licensor will not utilize such technical information in a form that personally identifies the Licensee without prior agreement.
1. TERM OF MAINTENANCE. IF THE MAINTAINENCE MODULE HAS BEEN PURCHASED, LICENSEE’S RIGHT TO RECEIVE MAINTENANCE WILL REMAIN IN FORCE FOR A PERIOD OF ONE YEAR FROM THE EFFECTIVE DATE UNLESS SOONER TERMINATED IN ACCORDANCE WITH THIS AGREEMENT.
2. SCOPE OF MAINTENANCE MODULE.
2.1. For one year from the Effective Date of this Agreement, and subject to the Licensee’s compliance with all of the terms and conditions of this Agreement, including, but not limited to, this Appendix C, Licensor shall reasonably provide or cause to be reasonably provided, “Maintenance” which shall consist of the following:
2.1.1. Any Updates of the Software commercially released by Licensor, in their sole discretion, during the Term of the Maintenance.
2.2. Maintenance will be provided only with respect to the then current version of the Software and all related Updates to the then current version of the Software.
2.3. Maintenance will not include services requested as a result of, or with respect to, the following:
2.3.1. Software, including without limitation Updates, problems caused by Licensee’s negligence, accident, hardware malfunction, unusual physical, electrical or electromagnetic stress, neglect, misuse, damage, failure of electric power, air conditioning or humidity control, operation of the Software with other media not meeting or not maintained in accordance with the manufacturer’s specifications, or causes other than ordinary use or beyond the control of Licensor;
2.3.2. Improper installation by Licensee or use of the Software, including without limitation Updates, that deviates from any operating procedures established by Licensor in the applicable Documentation; or
2.3.3. Modification, alteration or addition or attempted modification, alteration or addition of the Software, including without limitation Updates, undertaken by persons other than Licensor or Licensor authorized representatives.
2.3.4. If Licensee desires services not otherwise provided by Maintenance or not covered by Maintenance as set out above in this Appendix C, Licensee may request, and Licensor may agree in its sole discretion to perform such services. Licensor will bill Licensee at Licensor’s then-current time and materials labor rates.
3. RESPONSIBILITIES OF LICENSEE. LICENSOR’S PROVISION OF MAINTENANCE TO LICENSEE IS FURTHER SUBJECT TO THE FOLLOWING:
3.1. Licensee shall implement procedures for the protection of information and the implementation of backup facilities in the event of errors or malfunction of the Software, including without limitation Updates.
3.2. Licensee shall report to the Licensor in writing (such as by e-mail) all suspected errors, program failures, inconsistencies, and user interface problems, ambiguities, and inconveniences as soon as possible. Any changes to the software to address these reports will be at the sole discretion of the Licensor.