Research Tool Software Non-Exclusive License Agreement
NOTICE TO USER: PLEASE READ THIS RESEARCH TOOL SOFTWARE
NON-EXCLUSIVE LICENSE AGREEMENT ['THIS AGREEMENT']
CAREFULLY. BY DOWNLOADING AND/OR USING ALL OR ANY PORTION
OF THE SOFTWARE YOU INDICATE YOUR ACCEPTANCE OF THE
FOLLOWING TERMS FROM INSTITUTE. YOU AGREE TO BE BOUND BY
ALL TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE
THAT THIS AGREEMENT IS ENFORCEABLE AS IF IT WERE AN
INDIVIDUALLY- NEGOTIATED AGREEMENT SIGNED BY YOU .
The Agreement is between DANA-FARBER CANCER INSTITUTE,
INC., a Massachusetts nonprofit corporation and
501(c)(3) tax-exempt organization, (the “INSTITUTE”) and
you (the “Licensee”) (a natural person). This Agreement
is effective as of the earliest date Licensee accesses,
downloads or uses the Software (as defined below) (the
“Effective Date”).
The Authors are employees of the INSTITUTE's Department
of Biostatistics and Computational Biology who have
written a downloadable computer program known as
BayesMendel (the “Software”) which is available via the
World Wide Web at
http://bcb.dfci.harvard.edu/BayesMendel/form.html
1. Definitions
A. “Authors” means Dr. Giovanni Parmigiani and such
other persons as INSTITUTE may identify from time to
time.
B. 'Term' has the meaning specified in Section 4.
C. 'Purpose' means the use of the Software to process
data, and to calculate mutation carrier probabilities
and cancer risks for research purposes only and for no
commercial purposes.
D. 'Use or Using' means to access,
use, run, or otherwise benefit from accessing the
Software during the Term.
2. Grant of License
The Licensee wishes to acquire a license to Use the
Software for the Purpose and the INSTITUTE hereby grants
to Licensee a non-exclusive, non-transferable,
non-sublicensable, non-assignable license to INSTITUTE’s
rights to Use the Software during the Term
for the Purpose.
Licensee must accept all of the terms and conditions of
this Agreement by checking “I Agree.” Once Licensee has
accepted this Agreement, the Licensee will be given a
username and password (the “Login”) to the Software. The
Login will give the Licensee access to the Software for
the Purpose.
3. Ownership and Use of Software
3.1 The Licensee agrees that the Software:
(a) is to be used solely for internal,
noncommercial research purposes;
(b) will not be used in human subjects, in clinical
trials, or for diagnostic purposes involving human
subjects without the prior written consent of
INSTITUTE;
(c) is to be used only at the Licensee’s organization
and only in the Licensee’s facility under the
direction of the Licensee or others working under the
direct supervision of Licensee;
(d) is to be used only for the Purpose and will not be
used for any other purpose without the prior written
consent of INSTITUTE; and
(e) will not be transferred to anyone else within the
Licensee’s organization without the prior written
consent of INSTITUTE.
The Software is provided “as is”. Licensee acknowledges and agrees that the Software has not been approved for any use by any regulatory authority.
3.2 The INSTITUTE has and will retain sole and exclusive
ownership of all right, title and interest in and to the
Software, including all copyright and any other
intellectual property rights therein. This Agreement
grants a limited license to Use the Software for the
Purpose and does not and will not be construed to convey
title to or ownership of the Software to Licensee. All
rights in and to the Software not expressly granted to
Licensee by this Agreement are reserved by the
INSTITUTE. The Software is protected by copyright,
trademark, and/or other intellectual property rights and
laws. Any unauthorized Use of the Software, including
but not limited to any Use other than for the Purpose,
may violate such laws and this Agreement. Except as
provided in this Agreement, no express or implied
licenses or other rights are provided to the Licensee
under any patents, patent applications, trade secrets,
or other proprietary rights of INSTITUTE.
3.3 Ownership of all data and information processed
Using the Software is and will remain with and vest in
the Licensee. Licensee is solely responsible for all
data and information collected, collated, and processed
using the Software and Licensee is solely responsible
for compliance with all and any statutory obligations
relating thereto.
3.4 The Licensee will Use the Software only for the
Purpose and for no other purposes, including any
commercial purposes. Licensee will not modify, adapt,
disassemble, reverse engineer, decompile, translate, or
otherwise attempt to modify the Software or the source
code of the Software, or write or develop any derivative
software or any other software program based on or that
makes use of the Software or permit any third party to
modify, adapt, disassemble, reverse engineer, decompile,
translate or otherwise attempt to modify the Software or
the source code of the Software, or write or develop any
derivative software or any other software program based
on or that makes use of the Software.
3.5 The Licensee will not distribute, transfer,
sub-license, assign, sell, lend, provide any services to
third parties, provide access (including without
limitation via a public-access internet site) to all or
any part of the Software or use the Software or any
portion thereof to process the work of any third party.
3.6 The Licensee will keep the Login secure. The
Licensee will not supply the Login to any other party.
The Licensee will refer to the INSTITUTE any request by
a third party for the Software. The Licensee will
supervise the Use of the Software, control access to the
Login and the Software, and keep the Software secure.
The Licensee is and will remain fully responsible at all
times for all acts and omissions of anyone it allows to
Use the Software or the Login and for ensuring any such
persons understand and comply with this Agreement. This
responsibility includes without limitation any employee,
agent, student, consultant, independent contractor, or
visiting researcher, in each case, of Licensee.
3.7 If the Licensee desires to Use or license the
Software for commercial purposes, the Licensee agrees,
in advance of such use, to negotiate in good faith with
INSTITUTE to establish the terms of a commercial
license. It is understood by the Licensee that INSTITUTE
has no obligation to grant such a license to the
Licensee and may grant exclusive or non-exclusive
commercial or noncommercial licenses to others, or sell
or assign all or part of the rights in the Software to
any third party(ies), subject to any pre-existing rights
held by others and obligations to the United States
federal Government.
4. Termination
This Agreement is effective as of the Effective Date and
will remain in effect until the last date of Use of the
Software by Licensee or any of Licensee’s employees,
agents, students, consultants, independent contractors,
or visiting researchers, at which time it will
automatically expire. The INSTITUTE may terminate this
Agreement prior to its expiration with immediate effect
upon written notice to Licensee if Licensee fails to
comply with this Agreement. Upon termination of this
Agreement, the Login will immediately become invalid.
All provisions of this Agreement which by their terms
are intended to be effective after termination or
expiration of this Agreement will survive termination or
expiration of this Agreement for whatever cause,
including, without limitation Sections 3, 4, 5, and 7.
5. Disclaimer and Limitation of Liability
5.1 THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, AND
INSTITUTE, ITS ADMINISTRATORS, TRUSTEES, DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, AND INSURERS MAKE NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH
RESPECT THERETO. BY WAY OF EXAMPLE, BUT NOT OF
LIMITATION, INSTITUTE, ITS ADMINISTRATORS, TRUSTEES,
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND INSURERS
MAKE NO REPRESENTATIONS OR WARRANTIES: (i) OF COMMERCIAL
UTILITY; (ii) OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE; (iii) AS TO THE VALIDITY OF ANY
INTELLECTUAL PROPERTY RIGHTS; (iv) THAT THE USE OF THE
SOFTWARE WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADE
SECRET, TRADEMARK, OR OTHER PROPRIETARY RIGHTS OF
OTHERS; OR (v) AS TO THE ABSENCE OF LATENT OR OTHER
DEFECTS, WHETHER OR NOT DISCOVERABLE. INSTITUTE, ITS
ADMINISTRATORS, TRUSTEES, DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, AND INSURERS WILL NOT BE LIABLE TO
LICENSEE, LICENSEE’S SUCCESSORS OR ASSIGNS, OR ANY THIRD
PARTY (IF SUCH THIRD PARTY’S CLAIM RESULTS FROM
LICENSEE’S OR ANY OF ITS AFFILIATES’ OR AGENTS’
ACTIVITIES) WITH RESPECT TO: (i) ANY CLAIM ARISING FROM
USE BY LICENSEE OR ANY AFFILIATE THEREOF OF THE
SOFTWARE; OR (ii) ANY CLAIM FOR LOSS OF PROFITS, LOSS OR
INTERRUPTION OF BUSINESS, OR FOR INCIDENTAL, INDIRECT,
SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, ECONOMIC DAMAGE, INJURY
TO PROPERTY, AND/OR LOST PROFITS, REGARDLESS OF WHETHER
INSTITUTE SHALL BE ADVISED, SHALL HAVE REASON TO KNOW,
OR IN FACT SHALL KNOW OF THE POSSIBILITY OF SUCH DAMAGES
OR INJURY.
5.2 Licensee will defend, indemnify, and hold harmless
INSTITUTE, its administrators, trustees, officers,
directors, employees, agents, and insurers
(individually, an “Indemnified Party,” and collectively,
the “Indemnified Parties”), at the expense of Licensee,
from and against any and all liability, loss, injury,
damage, action, court or administrative order, claim, or
expense suffered or incurred by the Indemnified Parties,
including, without limitation, reasonable attorney’s
fees and expenses, court costs and other legal expenses,
(individually, a “Liability,” and collectively, the
“Liabilities”) that results from or arises out of: (a)
any act or failure to act of Licensee or any of its
affiliates; (b) the Use of the Software by Licensee, or
any of its affiliates or any of its agents or any other
third parties under Licensee’s control; (c) any material
breach by Licensee or any of its affiliates of this
Agreement; or (d) the enforcement by an Indemnified
Party of this Section, in each case, other than as a
result of Liabilities resulting from or related to the
gross negligence or willful misconduct of one or more
Indemnified Parties. Licensee will not settle or
compromise any claim or action giving rise to
Liabilities in a manner that imposes any restrictions or
obligations on any Indemnified Party or grants any
rights to the Software without INSTITUTE’s prior written
consent. If Licensee fails or declines to assume the
defense of any such claim or action within thirty (30)
days after notice thereof, INSTITUTE may assume the
defense of such claim or action for the account and at
the risk of Licensee, and any Liabilities related
thereto will be conclusively deemed a liability of
Licensee. The indemnification rights of INSTITUTE and
other Indemnified Parties contained herein are in
addition to all other rights which such Indemnified
Party may have at law or in equity or otherwise.
6. Privacy Policy
Upon Licensee’s checking “I Agree” ,
Licensee’s information will be collected and will be
held securely in accordance with all applicable laws and
regulations. Such information will be used to enable the
INSTITUTE to provide Licensee access to the Software and
the Login during the Term for the Purpose and not for
any other purposes. The INSTITUTE will not transfer,
release, or otherwise provide any Licensee details to
any third party.
7. General
7.1 The parties’ relationship is that of independent
contractors, and nothing in this Agreement will be
deemed to establish a relationship of principal and
agent between INSTITUTE and Licensee, or between or
among any of either party’s agents or employees for any
purpose whatsoever. This Agreement will not be construed
as creating a joint venture, partnership, or any other
form of legal association or arrangement which would
impose liability upon one party for the act or failure
to act of the other party.
7.2 The Licensee may not assign this agreement. Any
purported assignment of this Agreement or the rights
hereunder is null and void.
7.3 This Agreement constitutes the entire agreement and
understanding of the parties and supersedes all
negotiations, understandings or previous agreement
between the parties relating to the subject matter of
this Agreement. This Agreement may not be changed,
modified, or extended except by written amendment
executed by an authorized representative of each party.
7.4 This Agreement will be construed and governed in
accordance with the laws of the Commonwealth of
Massachusetts, without giving effect to conflict of law
provisions applicable therein. In the event that a party
to this Agreement perceives the existence of a dispute
with the other party concerning any right or duty
provided for herein, the parties will confer as soon as
practicable in an attempt to resolve the dispute. If the
parties are unable to resolve such dispute amicably,
then the parties hereby submit to the exclusive
jurisdiction of and venue in the federal and state
courts located in the Commonwealth of Massachusetts with
respect to any and all disputes concerning the subject
of this Agreement.
7.5 Licensee will not use, and Licensee will not permit
any of its affiliates to use, INSTITUTE’s name, any
adaptation thereof, any INSTITUTE seal, logotype,
trademark, or service mark, or the name, mark, or
logotype of any INSTITUTE employee, representative, or
organization in any way without the prior written
consent of INSTITUTE.
7.6 A waiver by either party of a breach of any
provision of this Agreement will not constitute a waiver
of any subsequent breach of that provision or a waiver
of any breach of any other provision of this Agreement.
7.7 Licensee will comply with all prevailing laws,
rules, and regulations that apply to its activities
and/or obligations under this Agreement. Without
limiting the foregoing, it is understood that this
Agreement may be subject to United States laws and
regulations controlling the export of technical data,
computer software, laboratory prototypes and other
commodities, articles and information, including the
Arms Export Control Act as amended in the Export
Administration Act of 1979, and that the parties’
obligations are contingent upon compliance with
applicable United States export laws and regulations.
The transfer of certain technical data and commodities
may require a license from the appropriate agency of the
United States Government and/or written assurances by
Licensee that Licensee will not export data or
commodities to certain foreign countries without prior
approval of such agency. INSTITUTE represents neither
that a license is not required nor that, if required, it
will issue.
7.8 If any provision of this Agreement is held to be
illegal, invalid, or unenforceable, then such
illegality, invalidity, or unenforceability will attach
only to such provision and will not in any manner affect
or render illegal, invalid, or unenforceable any other
provision of this Agreement. This Agreement will be
carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
7.9 Headings included herein are for convenience only
and will not be used to construe this Agreement.
7.10 Notices and other communications under this
Agreement will be in writing and will be deemed to have
been received as of the date sent if sent by public
courier (e.g., Federal Express) or by Express Mail,
receipt requested, and addressed as follows:
|
If for INSTITUTE: | Belfer Office for Dana-Farber
Innovations Dana-Farber Cancer Institute, Inc. 450
Brookline Avenue Boston, MA 02215 Attn: Vice-President,
Dana-Farber Innovations
|
|
If to Licensee: | To the address provided at the time of
Login issuance . |
Either party may change its official address upon
written notice to the other party.