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NxCLINICAL SOFTWARE - END-USER LICENSE AGREEMENT (Rev. 08/18)

 

IMPORTANT-READ CAREFULLY BEFORE PROCEEDING FURTHER WITH THE USE OR INSTALLATION OF THIS SOFTWARE: This End-User
License Agreement ("Agreement") is a legal contract between you, either (a) an individual user or (b) a business organization (in either case the "Licensee"), and BioDiscovery, Inc.

By selecting "I accept the terms of the License Agreement", by opening the package that contains the Software, or by copying, downloading, installing, or otherwise using the Software, Licensee agrees to be bound by the terms of this Agreement and Licensee represents that Licensee is authorized to enter into this Agreement on behalf of Licensee's corporate entity (if applicable). If Licensee does not wish to be bound by the terms of this Agreement, select "I do NOT accept the terms of the License Agreement" button, and/or do not install, access, or use the Software, and contact customerservice@biodiscovery.com.

This is a license to use the software for limited purposes. Please understand these limits and restrictions described in the section labeled "LICENSE RESTRICTIONS".

You may not acquire a software license if You are a direct competitor of BioDiscovery, except with the prior written consent of BioDiscovery, Inc. In addition, You may not acquire a software license for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated in January 2020. It is effective between You and Us as of the date of Your accepting this Agreement.

THIS SOFTWARE PRODUCT IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES, AND THIS AGREEMENT.

1. Definitions

"Agreement" means this End-User License Agreement.
"Contractor" means any third party employed by Licensee to perform services on behalf of Licensee.
"Documentation" means Our online user guides, documentation, and help and training materials, as updated from time to time. "Licensor" means BioDiscovery, Inc.
"We," "Us" or "Our" means the company BioDiscovery, Inc. and its subsidiaries.
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
"Sample Class" means a set of functionalities and limitations performed by the Software.
"License Level" means the quantitative limitations and unit of measure applicable to the license purchased by Licensee as specified on the applicable invoice.
"Licensee Site" means any location owned or leased solely by Licensee or that portion of any shared space, such as a shared data center, attributable solely to Licensee, or in the instance of an employee working remotely, that location from which such employee is working while using Licensee-provided equipment on which the Software may be installed.
"Software" means the object code form of the BioDiscovery, Inc. software products, as further identified on an invoice. Such products may include NxClinical Server, NxClinical Processing Server, and NxClinical Client. The Software may include features that will limit use of the Software in excess of the License Level.
"Term License" license to use the Software for the duration specified on the applicable invoice.
"Upgrades" means maintenance releases, additions, modifications, and new versions of the Software incorporating such additions and modifications that are either (i) made available to Licensee as part of Support and Maintenance without additional charge (except for Support and Maintenance Fees) or (ii) otherwise provided by BioDiscovery. Upgrades provided as a part of Support and Maintenance do not include maintenance releases, additions, or modifications that BioDiscovery considers to be a separate product or for which BioDiscovery Software charges all of its customers extra or separately.

2. License

a. Grant of License. Subject to all of the terms and conditions of this Agreement and upon Licensee's payment of the fees shown on the invoice and acceptance of this Agreement, BioDiscovery grants Licensee one nonexclusive, nontransferable, internal, end-user license (the "License") to use the Software solely for internal purposes at Licensee's site(s) only, but only in accordance with (a) the Documentation, (b) this Agreement and (c) the License Level. For the purposes of this Section, Software shall also include any Documentation and any Upgrades provided to Licensee under this Agreement. All rights not expressly granted to You under this Agreement are hereby reserved to BioDiscovery.

b. Use by contractors. Subject to the terms and conditions of this Agreement, Licensee's Contractors may use the licenses at a Licensee's site only, provided that (a) such use is only for Licensee's benefit, (b) Licensee agrees to remain responsible for each such Contractor's compliance with the terms and conditions of this Agreement and (c) upon request Licensee will identify each such Contractor to BioDiscovery. Use of the Software by the Contractors and Licensee in the aggregate must be within the License Level set forth in the applicable invoice.

c. License restrictions. Licensee agrees that it shall not:

i. assign, sell, sublicense, transfer, pledge, lease, rent, share, or otherwise redistribute the Software, the accompanying documentation or Licensee's rights under this Agreement, nor delegate any of Licensee's obligations under this Agreement. Any attempted assignment, sale, sublicense, transfer, pledge, lease, rental or delegation shall be null and void;
ii. decompile, disassemble, modify, reproduce, reverse assemble, reverse compile, translate or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever;
iii. remove any product identification, proprietary, copyright or other notices contained in the Software, including but not limited to any such notices contained in the physical and/or electronic media or Documentation, in the Setup Wizard dialog or "about" boxes, in any of the runtime resources and/or in any web-presence or web-enabled notices, code or other embodiments originally contained in or otherwise created by the Software, or in any archival or back- up copies, if applicable;
iv. use the Software for any purpose that is illegal or in any way that might result in any loss of its or any third party's property or information. Licensee agrees that it shall have the sole responsibility for protecting its data used in connection with the Software;
v. modify any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent outlined in the Documentation or expressly authorized in writing by BioDiscovery;
vi. publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software without prior written approval from BioDiscovery; or
vii. impersonate any person in order to access the Software or create user accounts by automated means or under false pretenses, or otherwise obtain access to the Software without authorization

3. Upgrades, support, and maintenance

a. Support and Maintenance. BioDiscovery shall provide the level of support and maintenance services ("Support and Maintenance") set forth on the applicable invoice, if any, during such period as the Licensee has paid the applicable fee.

During the Support and Maintenance Service term, if applicable, BioDiscovery shall provide Support and Maintenance for the licensed Software which consists of: delivering subsequent releases of the Software products, if any, that are not charged for separately; exerting reasonable efforts to both (a) provide, within a reasonable time, workarounds for any material programming errors in the current release of the Software that are directly attributable to BioDiscovery, and (b) correct such errors in the next available release, provided Licensee provides BioDiscovery with sufficient information to identify the errors. During this same paid Support and Maintenance term, the Licensee shall also be entitled to receive technical support for the current release. Technical support means assistance by telephone and electronic mail with the installation and/or use of the then-current release of the licensed Software, including all available bug fixes and patches, and their interaction with supported hardware and operating systems ("Platforms"). BioDiscovery reserves the option to discontinue, in whole or in part, and at any time, offering Support and Maintenance and/or technical support for any Software or Platform.

Licensee acknowledges and agrees that the Software may communicate via the Internet or other communications systems with Licensor's computer systems for the purpose of checking the status of the License, checking the status of maintenance for the Software, and/or determining if any fixes, updates and/or upgrades to the Software are available. Licensee agrees and consents to any such communications between the Software and Licensor's computer systems and the transfer of data between the Software and Licensor's computer system. Licensee also agrees and consents to, if applicable, remote configuration of the Software on Licensee's computer systems.

Licensee acknowledges and agrees that the Software permits downloading of Software fixes, updates, and upgrades and that such fixes, updates, and upgrades will be performed upon acceptance by the Licensee. Licensee agrees to install and use any and all such fixes, updates, and upgrades and, if applicable, discontinue use of the previous version of the Software. Licensee agrees that any and all such fixes, updates, and upgrades are and shall be governed by this Agreement unless superseded by an agreement associated with such a fix, update and/or upgrade.

b. Exclusions. BioDiscovery will have no Support and Maintenance obligation to Licensee: (a) at the end of any Support and Maintenance period unless Licensee elects to obtain additional Support and Maintenance by paying a Support and Maintenance renewal fee; (b) where Licensee is using a version of the Software that is not the then-current or previous major release or an otherwise unsupported version; (c) where the Software has been modified by Licensee or any third party; or (d) for any evaluation, beta or other Software provided at no charge.

c. Renewals. In the event Licensee elects not to obtain or renew Support and Maintenance, Licensee may retain the Software and Documentation but will have no further right to Support and Maintenance for the Software. If Licensee wishes to reinstate lapsed Support and Maintenance, Licensee may do so only within ninety (90) days from the expiration of the Support and Maintenance term and by paying BioDiscovery an amount equal to the then-applicable annual fee plus one-hundred-fifty percent (150%) of the fees that would have been due had Licensee remained enrolled during the lapse period.

4. Licensor's rights

Licensee agrees and acknowledges that the Software and the accompanying Documentation which are the subject of this Agreement are proprietary, confidential, and trade secret products of Licensor and/or Licensor's suppliers and that Licensee shall undertake all necessary steps and efforts to prevent unlawful or illegal distribution of such proprietary, confidential and trade secret information. Licensee further acknowledges and agrees that all right, title, and interest in and to the Software and the accompanying Documentation, including all associated intellectual property rights, are and shall remain with Licensor and/or Licensor's suppliers. This Agreement does not convey to Licensee any interest or rights in or to the Software and the accompanying documentation, except only a limited revocable right of use in accordance with the terms of this Agreement.
Irrespective of any use of the words "purchase", "sale" or like terms hereunder no ownership rights are being conveyed to Licensee under this Agreement or otherwise. All rights not expressly granted are reserved by Licensor and its suppliers. Licensor may assign this Agreement to a third party at any time.

5. License Term and Termination

This Agreement shall continue until the earlier of (a) termination by BioDiscovery, Inc. or Licensee as provided below, or (b) such time as there is no Software being licensed to Licensee hereunder.

For Term Licenses: Licensee understands and agrees that each Term License will expire automatically immediately after the corresponding period of the term licensed, unless Licensee renews its License by remitting the then-current term License fee. Licensee understands that the Software will stop operating unless Licensee pays the License fee and is provided new term activation codes. Licensee understands and agrees that the Software Maintenance Service for each Term License will terminate automatically upon expiration of the License Term.

BioDiscovery may terminate this Agreement and all Licenses granted hereunder by written notice to Licensee if Licensee breaches any material term of this License, including failure to pay any License fees due, and Licensee has not cured such breach within thirty (30) days of written notification. BioDiscovery may immediately terminate upon notice this Agreement and all Licenses granted hereunder should Licensee breach the terms and conditions of sections 2, 4, 8, or 12. Licensee may terminate this License at any time, for any reason. Licensee shall not be entitled to any refund if this License is terminated, except in the event of Licensor's breach of any material term of this License, which Licensor has not cured within thirty (30) days of receipt of written notice of such breach. Upon termination, Licensee shall promptly return all but archival copies of the Software products in Licensee's possession or control, or promptly provide written certification of their destruction.

The provisions of sections 2, 4, 5, 6, 8, 9, 11, 12, 13 and 14 shall survive any termination or expiration of this Agreement.

6. Payment terms/shipments

All fees are in currencies noted on the invoice based on Licensee Site location(s). Fees are due within thirty (30) days of the date of the invoice. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. All Software and Documentation shall be delivered by electronic means unless otherwise specified on the applicable invoice. All shipments of any media will be FOB Origin.

7. Taxes, Duties and Customs

Absent appropriate exemption certificates or other conclusive proof of tax-exempt status, Licensee shall pay all applicable sales, use, excise, value-added, and other taxes, duties, levies, assessments, and governmental charges payable in connection with this Agreement or the Licenses granted hereunder, excluding taxes based on or measured by BioDiscovery's income, for which BioDiscovery shall be solely responsible.

8. Export Laws

Licensee will comply with all applicable laws, regulations, treaties or other agreements in connection with its use of the Software and accompanying Documentation. Without limiting the foregoing, Licensee hereby covenants that neither the Software and the accompanying Documentation nor any information or know-how embodied in such Software and accompanying Documentation will be directly or indirectly provided, transported or removed, or authorized to be provided, transported or removed, in contravention of any export laws, regulations or decrees of the U.S. Government or any agency thereof. This Agreement is subject to immediate termination by Licensor in the event Licensee fails to comply with any such laws, regulations or decrees.

9. Warranty

a. Limited Warranty

Licensor warrants, for the term of the Agreement, that the Software will conform in all material respects to the description of such Software's operation in the Documentation. In the event that the Software does not operate as warranted, Licensee's exclusive remedy and Licensor' sole liability under this warranty shall be the correction or workaround by Licensor of defects within a reasonable time.

b. Disclaimer of Warranties

EXCEPT AND TO THE EXTENT EXPRESSLY PROVIDED ABOVE, THE SOFTWARE AND DOCUMENTATION WHICH ARE THE SUBJECT OF THIS AGREEMENT ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES NOT EXPRESSLY STATED IN THIS AGREEMENT, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE, WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. IN ADDITION, LICENSOR EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN LICENSEE WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION WHICH ARE THE SUBJECT OF THIS AGREEMENT. LICENSEE ASSUMES THE ENTIRE LIABILITY FOR THE SELECTION AND USE OF THE SOFTWARE AND DOCUMENTATION, AND LICENSOR SHALL HAVE NO LIABILITY FOR ANY ERRORS, MALFUNCTIONS, DEFECTS, LOSS OF DATA, OR ECONOMIC LOSS RESULTING FROM OR RELATED TO THE USE OF SOFTWARE AND/OR DOCUMENTATION.

10. Verification/Audits/Usage Data

On BioDiscovery's reasonable request, Licensee will furnish BioDiscovery with a signed statement confirming whether the Software is being used by Licensee in accordance with this Agreement. Further, during the term of this Agreement and for a period of one (1) year thereafter, with prior reasonable notice of at least five (5) days, BioDiscovery may audit Licensee for the purpose of verifying the information provided by Licensee under this Agreement, and for the purpose of verifying that Licensee is conforming to the terms of this Agreement. Any such audit shall be conducted during regular business hours at Licensee's facilities and shall not unreasonably interfere with Licensee's business activities. If an audit reveals an underpayment or that the Licensee's usage is greater than the License Level, then the Licensee shall immediately pay the difference in License fees and, if applicable, Support and Maintenance fees to bring the License Level into compliance. If an audit reveals that (i) Licensee has intentionally misrepresented its usage of the Software, (ii) Licensee materially breached this Agreement, or (iii) the Usage Level is more than 5% over the License Level, then Licensee shall pay BioDiscovery's reasonable costs of conducting the audit in addition to any fees due to Licensee's misrepresentation or material breach. Audits shall be conducted no more than once annually.

11. Trademark

BioDiscovery (R), NxClinical™, and Nexus Copy Number™ are registered trademarks of licensor. No right, license, or interest to such trademarks is granted hereunder, and Licensee agrees that no such right, license, or interest shall be asserted by Licensee with respect to such trademarks.

12. Confidential information

Licensee hereby acknowledges that the Software and any accompanying documentation contain confidential, proprietary, and/or trade secret information belonging to Licensor. Licensee further acknowledges and agrees that it shall not disclose the Software and any accompanying documentation to any third party. Licensee further acknowledges and agrees that any written documentation provided by Licensor to Licensee which contains a legend upon such documentation, whether or not such legend be a single legend affixed upon a multiple page document, which legend identifies such document to be either proprietary, trademarked, registered, copyrighted, confidential and/or trade secret, shall impose a duty upon Licensee not to disclose to any third party the documentation or any information contained within such documentation, either in writing or orally, without the express written consent of Licensor. Notwithstanding the foregoing provision, Licensor may notify Licensee in writing within twenty (20) days after disclosure to Licensee of documents which do not contain a legend identifying such documents to be either proprietary, confidential and/or trade secret, that such documents disclosed were either proprietary, trademarked, registered, copyrighted, confidential and/or trade secret in nature. Such notice shall impose a duty upon the Licensee not to disclose to any third party such documentation or any information contained with such documentation, either in writing or orally, without the express written consent of Licensor. Licensee further acknowledges that any oral information provided by Licensor to Licensee which information is identified or summarized in writing within twenty (20) days after such oral disclosure to be either proprietary, trademarked, registered, copyrighted, confidential and/or trade secret in nature shall impose a duty upon Licensee not to disclose to any third party such information disclosed by Licensor to Licensee, either in writing or orally, without the express written consent of Licensor. The obligations of this section 12 shall not extend to any information which is lawfully known to Licensee prior to receipt from Licensor or its distributor; or enters the public domain through no wrongful act or breach of this Agreement by Licensee; or is received by Licensee from a third party having a legal right to disclose such information. Notwithstanding, the foregoing provisions shall not be interpreted to require Licensee to take or fail to take any action if such action or omission would result in a violation of law by Licensee.

13. Limitation of Liability

Notwithstanding any other provision of this Agreement, the cumulative liability of either party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to the Software, the accompanying Documentation and/or this Agreement shall not exceed the license fees paid to Licensor by Licensee during the term of the Agreement for the use of the Software and accompanying Documentation. In no event shall either party be liable for any indirect, incidental, punitive, consequential, special, or exemplary damages, for any lost profits or savings, or for any loss of data or loss of use of equipment, even if either party has been advised of the possibility of such damages and regardless of the form of action whether in tort, contract or otherwise. The exclusions set forth in this Section 13 (Limitation of Liability) for purposes of this Agreement shall not apply to: (i) a party’s indemnity obligations, (ii) breach of its data privacy and security obligations, or (iii) losses for death, bodily injury or damage to real or tangible property arising out of or relating to a party’s negligence. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO LICENSEE.

14. Indemnity

Licensee shall defend, indemnify and hold Licensor harmless from and against any and all losses, liability, damages, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising out of any suit, action, claim or proceeding relating to a breach, or alleged breach, by Licensee, of its obligations under this Agreement.

15. Privacy

Licensor believes that the personal information Licensee provides to Licensor must be both kept private, and used in a responsible fashion. Licensor consistently puts its best efforts towards achieving both these objectives. The updating feature of the Software provides information (such as product serial number, operating system information, product language, usage sessions, amount of samples processed, etc.) to Licensor for the purpose of checking the status of the License, checking the status of maintenance for the Software, and/or determining if any fixes, updates and/or upgrades to the Software are available and Licensee agrees and consents that Licensor may store, process and use such information for that purpose. Licensor does not gather any personally identifiable data from Licensee. Licensee agrees, that in the event that Licensor sells, merges or otherwise re-organizes all or part of its business with another entity, the other entity may have access to and process, store and use Licensee's information, including the information collected through the updating feature of the Software, on the same terms and conditions as set forth in this Agreement. Licensee agrees that Licensor may process and/or store Licensee's information in United States databases. Licensee permits Licensor to share Licensee's information within Licensor and transfer it to countries in the world where Licensor does business. Licensee permits Licensor to disclose Licensee's information when Licensor is required to do so by law.

16. Governing Law and Venue

This Agreement shall be construed and governed in accordance with the laws of the State of California, without giving effect to any choice or conflict of law provision or rule. For all purposes of this Agreement, Licensor and Licensee hereby expressly waive the right to bring an action in any state or federal court other than the California state or federal courts located within the County of Los Angeles, State of California. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

17. Attorney's Fees

If any action is brought by either party to this Agreement against the other party in an effort to enforce or effect any provision or language contained within this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and costs.

18. Severability

If any provision of this Agreement shall be held illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions hereof shall not be affected thereby.

19. Force Majeure

In the event of interruption of Licensor's business, in whole or in part, by reason of fire, flood, wind, storm, earthquake, war, strike, embargo, acts of God, governmental action, or any cause beyond seller's control, Licensor shall have the option of deferring services in whole or in part by written notification pursuant to Section 22.

20. Entire Agreement

Licensee acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms. This Agreement and any modifications made pursuant to it, constitutes the final, complete and exclusive written expression of all terms of the Agreement between Licensor and Licensee, and supersedes and preempts all prior or contemporaneous proposals, understandings, representations, conditions, warranties, covenants, and all other communications between Licensor and Licensee relating to the subject matter of this Agreement, whether oral or written. This Agreement may not in any way be explained or supplemented by a prior or existing course of dealing between Licensor and Licensee, by any usage of trade or custom, or by any prior performance between Licensor and Licensee pursuant to this Agreement or otherwise.

21. Amendments

No amendments or other modifications to this Agreement may be made except by a written agreement signed by Licensor and Licensee.

22. Notice

All notices required or provided under the terms of this Agreement shall be given in writing to all parties and may be delivered by First Class U. S. Mail, postage prepaid; U.S. Registered Air Mail, postage prepaid; overnight air courier, courier charges prepaid; or facsimile. Notices shall be effective as follows: five (5) calendar days following mailing by First Class U.S. Mail, postage prepaid; seven (7) calendar days following mailing by U.S. Registered Mail, postage prepaid; two (2) business days following delivery by overnight courier; and two (2) business days following confirmation of transmittal by facsimile. Any notices provided under this Agreement shall be given at the address and/or facsimile number for the parties as set forth upon the sales document for this License, unless change of such address and/or facsimile number has been provided previously in writing.

23. No Waiver

The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

24. Assignment

Licensee may not assign any of its rights or obligations hereunder to a third party without Licensor's prior written consent.

25. US Government Rights

If Licensee is the U.S. Government or if Licensee is a contractor or subcontractor (at any tier) of the U.S. Government and is licensing the Software for use by the U.S. Government or in connection with any contract or other transaction with the U.S. Government, Licensee acknowledges that by accepting delivery of the Software, the U.S. Government agrees that the Software qualifies as commercial computer software and that the accompanying documentation qualifies as commercial computer software documentation within the meaning of the acquisition regulations and contract clauses applicable to this procurement. The terms and conditions of this Agreement are fully and exclusively applicable to the Government's use and disclosure of the Software and accompany documentation, and shall supersede any conflicting terms or conditions. No license of any kind is granted in the case of acquisitions which contain or are subject to the clauses FAR 52-227.19 COMMERCIAL COMPUTER SOFTWARE-RESTRICTED RIGHTS (JUNE 1987) or DFARS 252.227-7013 RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE (OCT 1988) or any other clause which purports to grant to the U.S. Government rights greater than, or additional to those, set forth in this Agreement, or which purports to impose additional requirements upon Licensor to make this Agreement effective, unless Licensor specifically so consents by separate written agreement. Failing such agreement, and if this Agreement fails to meet the U.S. Government's stated needs or is inconsistent in any respect with federal law, the U.S. Government agrees to return the Software and accompanying documentation, unused, to Licensor. The Contractor/Licensor/Manufacturer is BioDiscovery, Inc., 715 N. Douglas St., El Segundo, CA 90245.