Version 1 | May 2024

PLEASE READ ALL OF THE FOLLOWING TERMS OF USE FOR THE CYTEL FREE TRIAL SAAS AGREEMENT (THE “AGREEMENT”). THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT GOVERN YOUR ACCESS TO AND USE OF CYTEL’S TRIAL SAAS OFFERING. BY BY SIGNING AN ORDERING DOCUMENT REFERENCING THIS AGREEMENT, “I AGREE” WHERE PROMPTED OR BY INSTALLING, COPYING, ACCESSING, OR USING THE TRIAL SAAS OFFERING, YOU ARE ACCEPTING AND AGREEING TO ALL OF THE TERMS AND CONDITIONS HEREOF.

SINCE YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR LEGAL ENTITY (“CLIENT”), YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND CLIENT AND ALL NAMED USERS (AS DEFINED BELOW) TO THIS AGREEMENT.

IF YOU DO NOT ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO ACCESS OR USE ANY TRIAL SAAS OFFERING.

1. Definitions

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

• 1. “Cytel” means Cytel Inc., a Delaware corporation with a principal place of business located at 675 Massachusetts Ave, Cambridge, MA 02139.
  2. “Cytel IP” means the Cytel Software, the Documentation and all other software (including both source code and object code, as applicable), documentation, templates (including reporting templates), designs (including graphics, layout, presentation, style or effect, screen and report designs), data, materials, technology, works and other intellectual property created, utilized and/or provided by or on behalf of Cytel in connection with any Trial SaaS Offering or the performance of this Agreement, and all Intellectual Property Rights related to any of the foregoing.
  3. “Cytel Software” means all software forming part of or used by Cytel to deliver a Trial SaaS Offering, including any upgrades, improvements, enhancements or derivatives thereof.
  4. “Documentation” means the instructions and user guides for a Trial SaaS Offering, whether accessed in printed form, online or downloaded, in each case as made available and updated by Cytel from time to time.
  5. “Effective Date” shall mean the date of Your acceptance of this Agreement, by signing an ordering document referencing this agreement, clicking “I agree” where prompted or by installing, copying, accessing, or using the Trial SaaS Offering.
  6. “Intellectual Property Rights” means all rights throughout the world in any and all of the following: (a) patents, patent applications, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names and registrations and applications for the registration thereof together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs and mask works) and registrations and applications for registration thereof; (d) trade secrets, know-how and other proprietary information; (e) waivable or assignable moral rights or rights of publicity; and (f) all other forms of intellectual property, such as data and databases, in each case, to the extent protectable under applicable law.
  7. “Named Users” means those individuals who are approved by Cytel in writing and authorized by You or on Your behalf to access and use the Trial SaaS Offering under the rights granted to You under this Agreement.
  8. “Outputs” shall mean documents and information containing analysis and/or summaries of Client Data generated from the use of the Trial SaaS Offering including power point slides and presentations, portable document files, reports, word documents, paper copies, excel, CSV or other data files or elements.
  9. “Party” means You or Cytel and “Parties” means, collectively, You and Cytel.
  10. “Trial SaaS Offering” means Cytel’s hosted software-as-a-service offering made available to You under this Agreement on a trial basis, the specific features and functionality of which are described in the applicable Documentation.
  11. “You” or “Your” means the Client together with its Named Users entering into or accessing the Trial SaaS Offering under this agreement.

2. General Terms.

   2.1. This Agreement is comprised of the terms and conditions set forth herein, together with any Appendix attached hereto (each of which shall be deemed incorporated by reference).

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

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

3. Trial Period; Provision of Trial SaaS Offering.

   3.1. This Agreement is effective upon the Effective Date and expire on the date set forth in the Trial SaaS Offering implementation email from Cytel to You unless earlier terminated in accordance with this Agreement (the “Trial Period”). If You would like to continue to use any of Cytel’s hosted software-as-a-service offerings after the Trial Period and Cytel is willing to make such hosted software-as-a-service offerings available to You for subscription, You must purchase such hosted software-as-a-service offerings from Cytel under a separate license agreement.

   3.2. During the Trial Period, Cytel shall provide the Trial SaaS Offering to You on the terms and subject to the conditions set forth in this Agreement.

   3.3. Cytel is responsible for the deployment, operation, management and hosting of the Trial SaaS Offering, on the server-side only. You are responsible for all hardware, software, connectivity and related infrastructure required for You to access and use the Trial SaaS Offering.

   3.4. You acknowledge that the Trial SaaS Offering is based on standardized service platforms made available by Cytel to a variety of customers. You acknowledge that the Trial SaaS Offering were not designed to Your individual requirements and that You are solely responsible for confirming that the Trial SaaS Offering meets such requirements. You agree that Your access to the Trial SaaS Offering is not contingent on the delivery of any future functionality or features, or dependent on any statements made by Cytel regarding possible future functionality or features. Cytel reserves the right to make changes to the Trial SaaS Offering at any time without notice to You.

   3.5. You agree that the Trial SaaS Offering may have limited functionality and reduced or altered features and the proper functionality of the Trial SaaS Offering may be interrupted at any time by Cytel for any reason, including without limitation, for review, evaluation, and maintenance purposes. Cytel may add new features or change or remove existing features or functionality to or from the Trial SaaS Offering, in each case in its sole discretion. You acknowledge and agree that this Agreement does not entitle you to any guaranteed service level availability, maintenance, support, upgrades or modifications for the Trial SaaS Offering. Cytel, in its sole discretion, may provide You with limited technical support.

4. Rights and Limitations of Use.

   4.1    Subject to the terms and conditions of this Agreement, Cytel grants to You:
   (a)    a limited, non-exclusive, non-transferable right and license during the Trial Period to permit You to access and use the Trial SaaS Offering and Documentation, only in accordance with such Documentation and any applicable license parameters specified in the Trial SaaS Offering signed ordering document and/or implementation email from Cytel to You, for Your academic learning, teaching and development purposes as part of educational instruction undertaken at an educational, non-profit or governmental institution that does not involve the production, manufacture, or marketing of products or services for sale (“Academic Purpose”) or internal evaluation of the SaaS Offering and non-production purposes (“Evaluation Purpose”) only, and in any event, not for commercial, for-profit or production use; and

   (b) a limited, non-exclusive, non-transferable, license to use Cytel IP solely to the extent incorporated or embedded in any Outputs which You have created during the Trial Period and only if and to the extent necessary for Your Academic Purpose or Evaluation Purpose. Outputs may not be used for commercial use.

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

   4.3    Each Named User must be a unique individual and Client shall be responsible for ensuring that the maximum number of Named Users is not exceeded. A Named User license may not be transferred from one Named User to another user, and two or more individuals may not share a single Named User login. Client is solely responsible for its relationships with all Named Users, for their use of the Trial SaaS Offering, and their compliance with all terms and conditions of this Agreement. Client is responsible for all acts and omissions of its Named Users, and any violation of the terms and/or conditions of this Agreement by a Named User shall be deemed to be a violation by Client of such terms and conditions. Client is solely responsible for the security and proper creation, use and termination of all user IDs, passwords and other login credentials used in connection with the Trial SaaS Offering and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to unauthorized parties. Client shall immediately inform Cytel if there is any reason to believe that a user ID, password, or any other login credential has or is likely to become known to any person or entity not authorized to use it, or is being or is likely to be used in an unauthorized way. Cytel reserves the right (in its sole discretion) to require Client to change any or all of the user IDs, passwords or other login credentials used by Client in connection with the Trial SaaS Offering, and Client shall promptly comply, and compel all Named Users to comply, with any such requirement. Failure to comply with such requirement will result in the immediate suspension of Your access to the Trial SaaS Offering.

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

5. Termination and Suspension.

   5.1. You may discontinue Your use of the Trial SaaS Offering at any time. Either Party may terminate this Agreement at any time upon two (2) days notice to the other Party. Notwithstanding the foregoing, Cytel may suspend Your access to the Trial SaaS Offering without notice in whole or in part at any time with immediate effect (i) if You breach any term of this Agreement, or (ii) in order to avoid or mitigate material harm to Cytel. Any suspension by Cytel under this Agreement shall be without limitation of any other right or remedy available to Cytel. If You would like to receive a downloadable electronic file of Client Data stored in the Trial SaaS Offering (if any) please notify Cytel before the end of the Trial Period.

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

   a) Cytel will terminate access to the Trial SaaS Offering, and all rights and licenses granted by Cytel pursuant to this Agreement shall terminate.

   b) Cytel shall have no obligation to maintain or provide any Client Data and may, without notice to You, delete all such Client Data.

   c) If requested by a Party, the other Party shall promptly destroy or return to the requesting Party, as directed, all of the requesting Party’s Confidential Information, and other materials of the requesting Party in such other Party’s possession or under its control. Notwithstanding the foregoing, neither Party shall be required to purge electronic backup media maintained in the ordinary course of business that may contain Confidential Information, and each Party shall be entitled to retain one archival copy of any Confidential Information to the extent it has been advised in writing by counsel that such retention is required to comply with applicable lawIf You would like to receive a downloadable electronic file of Client Data stored in the Trial SaaS Offering (if any) please notify Cytel before the end of the Trial Period.

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

6. Fees

   6.1. The Trial SaaS Offering under this Agreement is free of charge during the Trial Period.

7. Disclaimers and Exclusion of Warranties.

   7.1. CYTEL PROVIDES THE TRIAL SAAS OFFERING TO YOU “AS IS” AND “AS AVAILABLE” AND MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE TRIAL SAAS OFFERING AND/OR CYTEL IP, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES OF NONINFRINGEMENT, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, CYTEL MAKES NO WARRANTY OF ANY KIND THAT THE TRIAL SAAS OFFERING OR ANY RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SYSTEM OR SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED.

   7.2. YOU ARE SOLELY RESPONSIBLE FOR ANY CLIENT DATA, CONTENT, APPLICATION OR NON-CYTEL SOFTWARE THAT YOU LOAD INTO OR CREATE WITHIN THE TRIAL SAAS OFFERING. CYTEL IS NOT RESPONSIBLE FOR THE SECURITY OF ANY OF THE CLIENT DATA, APPLICATION OR SOFTWARE YOU LOAD INTO OR CREATE WITHIN THE TRIAL SAAS OFFERING.

8. Limitation of Liability

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

   8.2. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CYTEL’S AGGREGATE LIABILITY TO YOU FOR DAMAGES ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT OF ONE HUNDRED UNITED STATES DOLLARS ($100.00).

   8.3. Without limiting any other provision of this Agreement, You understand that the results obtained from Your use of, or access to, the Trial SaaS Offering are highly dependent on Your inputs into, and appropriate operation of, the Trial SaaS Offering. You agree to thoroughly test and verify the results obtained from Your use of, or access to, the Trial SaaS Offering. Cytel shall have no liability to You or any third parties, and You expressly assume all risk of liability and damages, based on or arising from Your use of, or access to, the Trial SaaS Offering, including any claims, suits, actions or proceedings related to or arising from (a) any illness or personal injury to You or Your patients, employees, subjects, users, or clients, allegedly caused by use of, or access to, the Trial SaaS Offering, (b) any clinical trial or other activity for which You elect to use the Trial SaaS Offering, or (c) Your use of results generated from the use of the Trial SaaS Offering.

9. Indemnification.

   9.1. You shall, at Your own expense, indemnify, hold harmless, and defend Cytel and its affiliates, and their respective employees, directors, officers, and agents, from and against any loss, cost, damage or expense (including reasonable attorneys’ fees) incurred in respect of any claim, demand, action, suit or other judicial proceeding asserted, brought or threatened by a third party (each, a “Claim”) that relates to (a) any of Client Data; (b) the use by You of the Trial SaaS Offering in breach of this Agreement or in violation of applicable law or third party rights; or (c) any matter described in Section 8.3 hereof. You may not consent to the settlement or entry of judgment in such Claim without Cytel’s prior written consent if such settlement or judgment would admit any wrongdoing on the part of Cytel or otherwise impose any obligation or liability on Cytel. Cytel may participate in (but not control) the defense of any such Claim with its own counsel at its own expense.

10. Confidentiality

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

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

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

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

11. Client Data

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

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

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

    11.4. Data Protection and Privacy: Cytel shall maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Client Data. You are solely responsible for all aspects of Client Data, including its sourcing, inputting, management, accuracy, quality, legality, results and the privacy of protected personal information. The Parties shall undertake to comply with all applicable laws, rules and regulations governing the protection and privacy of Personal Data, including, without limitation, (a) General Data Protection Regulation (EU) 2016/679 and ePrivacy Directive 2002/58/EC as implemented by countries within the EEA or successor Laws (GDPR), (b) the UK Data Protection Act 2018 as amended from time to time, (c) the Swiss Federal Act of 19 June 1992 on Data Protection (FADP) and from September 1, 2023 the Revised FADP, (d) 201 CMR 17.00: Standards for The Protection of Personal Information of Residents of the Commonwealth of Massachusetts, (as amended (“201 CMR 17.00”), (e) Title 1.81.5. California Consumer Privacy Act of 2018 [1798.100 – 1798.199], and (f) other applicable laws, rules, and regulations relating to privacy, data protection and data security, including with respect to the collection, use, storage, transmission, disclosure, transfer (including cross-border transfer), processing, retention, and disposal of Personal Data. (“Applicable Data Protection Law”). Where Cytel or its affiliates Process Personal Data from the EEA, UK, or Switzerland hereunder and that Processing involves transfers of such Personal Data from You to Cytel or its affiliates in countries that the European Commission, UK Governmental Authorities, or Swiss Governmental Authorities, as applicable, do not consider to ensure an “adequate” level of data protection, Appendix A shall apply.

12. Miscellaneous

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

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

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

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

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

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

    12.7. Integration; No Amendment. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter hereof. This Agreement may not be modified, and the rights and restrictions may not be altered or waived except in a writing signed by both Parties by authorized representatives of You and Cytel. Notwithstanding the foregoing, Cytel may make changes to this Agreement at any time and You agree that your continued use of the Trial SaaS Offering constitutes your acceptance of, and agreement to, such changes.

    12.8. Assignment. This Agreement, and the rights and obligations hereunder, may not be assigned or transferred by You, including pursuant to any merger, consolidation, or reorganization, or other transaction or series of related transactions resulting in a change of control of You. Any purported assignment or delegation by You in violation of the foregoing shall be null and void ab initio and of no force and effect.

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

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

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

    12.12. Notices. Any notice under this Agreement given by any Party to any other Party shall be in English, in writing, and will be delivered (as elected by the Party giving such notice): (i) by email to software.contracts@cytel.com with a copy to legal@cytel.com or any Named User email address, or (ii) by certified letter or receipted commercial courier. Any Party may from time to time change such address or individual by giving the other Party notice of such change in accordance with this Section.

Appendix A

International Personal Data Transfers

The Parties agree that for purposes of Applicable Data Protection Law, each Party (to the extent it Processes Personal Data) Processes Personal Data as an independent Controller in its own right. Nothing in this Agreement is intended to construe either Party as a Processor of the other Party or as joint Controllers with respect to any Personal Data.

1) Definitions

For purposes of this Appendix A, the following capitalized terms shall have the meanings set forth below:

“Approved EU SCCs” means the Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021, as updated, amended, replaced and superseded from time to time.

“Approved UK Addendum” means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the UK Information Commissioner and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section ‎18, as updated, amended, replaced and superseded from time to time.

“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

“Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’) that is Processed in connection with the Trial SaaS Offering or Agreement.

“Process“, “Processed” or “Processing” means the collection, recording, organization, structuring, alteration, use, access, disclosure, copying, transfer, storage, deletion, combination, restriction, adaptation, retrieval, consultation, destruction, disposal, or other use of data.

2) EEA Transfers

Where Cytel or its affiliates Process the Personal Data from the EEA in the performance of the Trial SaaS Offering and that Processing involves transfers of such Personal Data from You to Cytel or its affiliates in countries that the European Commission do not consider to ensure an “adequate” level of data protection, the parties agree to incorporate Module 1 of the Approved EU SCCs by reference in accordance with the terms below:

1. Clause 7 of the Approved EU SCCs shall apply;
2. the option in Clause 11(a) of the Approved EU SCCs does not apply;
3. the Parties choose Option 1 of Clause 17 of the Approved EU SCCs;
4. the Approved EU SCCs shall be governed by the laws of Ireland;
5. per Clause 18 of the Approved EU SCCs, disputes arising under the Approved EU SCCs shall be resolved in the courts of Ireland; and
6. Attachment I to this Appendix A shall serve as Annex I to the Approved EU SCCs, and Attachment II to this Appendix A shall serve as Annex II to the Approved EU SCCs.

3) UK Transfers

Where Cytel or its affiliates Process Personal Data from the You in the performance of the Trial SaaS Offering that Processing involves transfers of such Personal Data by You to Cytel or its affiliates in countries that the UK Governmental Authorities do not consider to ensure an “adequate” level of data protection, the parties agree to incorporate the Approved UK Addendum by reference in accordance with the terms below:

1. the Approved UK Addendum is appended to the version of the Approved EU SCCs detailed in Section 2 EEA Transfers above;
2. the data exporter and data importer are deemed to be the ones described in the Attachment 1 to this Appendix A;
3. Attachment I and Attachment II to this Appendix A shall serve as Appendix Information to the Approved UK Addendum; and
4. the Parties agree that the data exporter or data importer may end the Approved UK Addendum when the Approved UK Addendum changes.

4) Switzerland Transfers

Where Cytel or its affiliates Process Personal Data from Switzerland in the performance of the Trial SaaS Offering and that Processing involves transfers of such Personal Data by You to Cytel or its affiliates in countries that the Swiss Governmental Authorities do not consider to ensure an “adequate” level of data protection, the version of the Approved EU SCCs detailed in Section 2 EEA Transfers above will apply and is amended as follows:

1. the Swiss Federal Data Protection and Information Commissioner is the exclusive supervisory authority;
2. the term “member state” must not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (Switzerland) in accordance with Clause 18; and
3. references to the GDPR in the Approved EU SCCs shall also include the reference to the equivalent provisions of the Swiss FADP.

Attachment 1

 ANNEX I

 A. LIST OF PARTIES

 Data Exporter

• Name and Address: The data exporter is the You and the address is Your business offices
• Contact person’s name, position and contact details: as provided by You
• Activities relevant to the data transferred under the Standard Contractual Clause:

as provided in the Agreement

• Signature and date: upon You signing an ordering document referencing this agreement. You clicking “I agree” where prompted or by You installing, copying, accessing, or using the Trial SaaS Offering will be deemed to be signature and acceptance
• Role (controller/processor): controller

Data Importer

• Name and Address: The data importer is Cytel or its affiliates providing the Trial SaaS Offering pursuant to the Agreement and the address is Cytel’s business address
• Contact person’s name, position and contact details: as provided by Cytel
• Activities relevant to the data transferred under the Standard Contractual Clause:

as provided in the Agreement

• Signature and date: upon the signature of an ordering document referencing this agreement. You clicking “I agree” where prompted or by You installing, copying, accessing, or using the Trial SaaS Offering will be deemed to be signature and acceptance
• Role (controller/processor): controller

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

• Named Users

Categories of personal data transferred

The Personal Data provided, transferred or delivered to or otherwise accessed by Cytel for Processing in connection with the provision and management of the Trial SaaS Offering, which may include:

• Employer organization name and type
• Professional contact details (address and phone number)
• Areas of work and professional job title
• First/last name
• Email
• IP address and approximate location
• Username (for Cytel system log-in)

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

• None

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

As necessary for Cytel’s provision and management of the Trial SaaS Offering and performance of its obligations under the Agreement.

Nature of the processing

The nature of the Processing activity will be that as necessary for Cytel’s provision and management of the Trial SaaS Offering and performance of its obligations under the Agreement.

Purpose(s) of the data transfer and further processing

Cytel will Process Personal Data in accordance with the Agreement for the purpose of provisioning and managing the Trial SaaS Offering, or as otherwise compelled by applicable laws.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

For the duration of the Agreement.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

List of sub-processors:

C. SUPERVISORY AUTHORITY

In accordance with Clause 13(a) of the Approved EU SCCs, the supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer shall act as competent supervisory authority.

Attachment II

ANNEX II – TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

• Cytel has a formal Information Security Management System (ISMS)
• Cytel has completed Stage 1 and 2 audits in H2 FY2022 and has achieved formal registration to the ISO/IEC 27001:2013 with no findings or non-conformities
• Scope includes all sites and cloud platforms
• Effective Dates December 23, 2022 – October 31, 2025
• Annual Surveillance Audits to be performed annually
• ISMS Policies

ORG-ISMS-PL-000010 Cytel Information Security Management System Scope

ORG-ISMS-PL-000001 Cytel Information Security Policy

ORG-ISMS-GEN-000001 Cytel ISMS System Statement of Applicability

ORG-ISMS-PL-000005 Cytel Network Security Policy

ORG-ISMS-SOP-000001 Cytel Procedure for Management Reviews

ORG-ISMS-PL-000006 Cytel Technical Vulnerability Management Policy

Cytel Free Trial On-Premise Software Agreement

Version 2 | May 2024

PLEASE READ ALL OF THE FOLLOWING TERMS OF USE FOR THE CYTEL FREE TRIAL ON PREMISE SOFTWARE AGREEMENT (THE “AGREEMENT”). THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT GOVERN YOUR ACCESS TO AND USE OF CYTEL’S TRIAL ON-PREMISE SOFTWARE. BY SIGNING AN ORDERING DOCUMENT REFERENCING THIS AGREEMENT, CLICKING “I AGREE” WHERE PROMPTED OR BY INSTALLING, COPYING, ACCESSING, OR USING THE TRIAL ON-PREMISE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO ALL OF THE TERMS AND CONDITIONS HEREOF.

SINCE YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR LEGAL ENTITY (“CLIENT”), YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND CLIENT AND END USERS (AS DEFINED BELOW) TO THIS AGREEMENT.

IF YOU DO NOT ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO ACCESS OR USE ANY TRIAL ON-PREMISE SOFTWARE.

1. Definitions

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

1. “Client Data” shall mean all data or other information in any medium submitted to the Trial On-Premise Software by or on behalf of You.
2. “Cytel” means Cytel Inc., a Delaware corporation with a principal place of business located at 675 Massachusetts Ave, Cambridge, MA 02139.
3. “Cytel IP” means the Trial On-Premise Software, the Documentation and all other software (including both source code and object code, as applicable), documentation, templates (including reporting templates), designs (including graphics, layout, presentation, style or effect, screen and report designs), data, materials, technology, works and other intellectual property created, utilized and/or provided by or on behalf of Cytel in connection with any Trial On Premise Software or the performance of this Agreement, and all Intellectual Property Rights related to any of the foregoing.
4. “Documentation” means the instructions and user guides for a Trial On-Premise Software, whether accessed in printed form, online or downloaded, in each case as made available and updated by Cytel from time to time.
5. “Effective Date” shall mean the date of Your acceptance of this Agreement by signing an ordering document referencing this Agreement, clicking “I agree” where prompted or by installing, copying, accessing, or using the Trial On-Premise Software.
6. “End Users” means those individuals who are approved by Cytel in writing and authorized by You or on Your behalf to access and use the Free Trial On-Premise Software under the rights granted to You under this Agreement.
7. “Intellectual Property Rights” means all rights throughout the world in any and all of the following: (a) patents, patent applications, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names and registrations and applications for the registration thereof together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs and mask works) and registrations and applications for registration thereof; (d) trade secrets, know-how and other proprietary information; (e) waivable or assignable moral rights or rights of publicity; and (f) all other forms of intellectual property, such as data and databases, in each case, to the extent protectable under applicable law.
8. “Outputs” shall mean documents and information containing analysis and/or summaries of Client Data generated from the use of the Trial On Premise Software including power point slides and presentations, portable document files, reports, word documents, paper copies, excel, CSV or other data files or elements.
9. “Party” means You or Cytel and “Parties” means, collectively, You and Cytel.
10. “Trial On-Premise Software” means the executable version of Cytel’s on-premise software product offering (as distinguished from hosted software-as-a-service offerings), made available to You under this Agreement on a trial basis, the specific features and functionality of which are described in the applicable Documentation.
11. “You” or “Your” means the Client, together with its End Users, entering into or accessing the Trial On Premise Software under this Agreement.

2. General Terms.

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

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

3. Trial Period; Provision of Trial On-Premise Software.

   3.1. This Agreement is effective upon the Effective Date and will expire on the date set forth in the Trial On-Premise Software secure file delivery email from Cytel to You, unless earlier terminated in accordance with this Agreement (the “Trial Period”). If You would like to continue to use any of Cytel’s hosted software-as-a-service offerings after the Trial Period and Cytel is willing to make such hosted software-as-a-service offerings available to You for subscription, You must purchase such hosted software-as-a-service offerings from Cytel under a separate license agreement.

   3.2. During the Trial Period, Cytel shall provide the Trial On-Premise Software to You on the terms and subject to the conditions set forth in this Agreement.

   3.3. You are responsible for all hardware, software, connectivity and related infrastructure required for You to access and use the Trial On-Premise Software.

   3.4. You acknowledge that the Trial On-Premise Software is based on standardized service platforms made available by Cytel to a variety of customers. You acknowledge that the Trial On-Premise Software were not designed to Your individual requirements and that You are solely responsible for confirming that the Trial On-Premise Software meets such requirements. You agree that Your access to the Trial On-Premise Software is not contingent on the delivery of any future functionality or features, or dependent on any statements made by Cytel regarding possible future functionality or features. Cytel reserves the right to make changes to the Trial On-Premise Software at any time without notice to You.

   3.5. You agree that the Trial On-Premise Software may have limited functionality and reduced or altered features and the proper functionality of the Trial On-Premise Software may be interrupted at any time by Cytel for any reason, including without limitation, for review, evaluation, and maintenance purposes. Cytel may add new features or change or remove existing features or functionality to or from the Trial On-Premise Software, in each case in its sole discretion. You acknowledge and agree that this Agreement does not entitle you to any guaranteed service level availability, maintenance, support, upgrades or modifications for the Trial On-Premise Software. Cytel, in its sole discretion, may provide You with limited technical support.

4. Rights and Limitations of Use.

   4.1. Subject to the terms and conditions of this Agreement, Cytel grants to You:

   1. a limited, non-exclusive, non-transferable right and license during the Trial Period to install, execute and permit You to use the Trial On-Premise Software, in object code form only, in accordance with the Documentation and any applicable license quantities specified in the signed ordering document and/or secure file delivery email from Cytel to You, for Your academic learning, teaching and development purposes as part of educational instruction undertaken at an educational, non-profit or governmental institution that does not involve the production, manufacture, or marketing of products or services for sale (“Academic Purpose”) or internal evaluation of the Trial On-Premise Software and non-production purposes (“Evaluation Purpose”) only, and in any event, not for commercial, for-profit or production use; and
   2. a limited, non-exclusive, non-transferable, license to use Cytel IP solely to the extent incorporated or embedded in any Outputs which You have created during the Trial Period and only if and to the extent necessary for Your Academic Purpose or Evaluation Purpose. Outputs may not be used for commercial use.

   4.2. Except for the limited rights granted in Section 4.1., no other rights in or to any Trial On-Premise Software or other Cytel IP, express or implied, are granted to You. Without limiting the foregoing, You agree: (a) to access and use the Trial On-Premise Software only for Your Academic Purpose or Evaluation Purpose, and not for commercial or general production use and not to provide outsourcing, service bureau, hosting, application service provider or online services to or for the benefit of third parties; (b) not to reproduce, modify or create any derivative works, including translations, based upon any Trial On-Premise Software or Cytel IP, except that You may make and maintain during the Trial Period the minimum number of backup copies of the Trial On-Premise Software that are necessary for disaster recovery purposes; (c) to preserve and not obscure, alter or remove any copyright, trademark and other proprietary markings and notices that may appear in or on the Trial On-Premise Software, Documentation or other Cytel IP; (d) not to distribute, sublicense, publish, sell, rent, lease or share any Trial On-Premise Software or otherwise permit anyone to use or access any Trial On-Premise Software; (e) not to use the Trial On-Premise Software for performance, benchmarking or comparison testing or analysis, or disclose to any third party or otherwise disseminate any results thereof (all of which shall be considered Confidential Information of Cytel) without Cytel’s prior written consent in each instance; (f) not to circumvent any security feature of the Trial On-Premise Software; (g) not to reverse engineer, decompile, disassemble or attempt to access or derive the source code or architecture of any Trial On-Premise Software or Cytel IP, except to the extent such activities cannot be restricted under applicable law; (h) not to use the Trial On-Premise Software or any Cytel IP in order to develop a competing offering or to assist someone else to develop a competing offering; (i) not to use the Trial On-Premise Software in a manner that violates any applicable law or is defamatory, harassing, infringing or otherwise causes damage or injury to any person, entity or property, including to Cytel itself and its business partners, licensors or suppliers, including by transmitting or introducing into any Cytel or third party system any program, routine, subroutine, or data (including malicious software, malware, viruses, worms or Trojan Horses) that may disrupt the proper operation of any system or cause the loss or corruption of any data; and (j) not to permit, enable or assist any other person or entity to take any action inconsistent with this Section 4.2.

   4.3. Each End User must be a unique individual (regardless of whether or not the individual is actively using the Trial On-Premise Software at any given time) and no End User license may be transferred from one End User to another user. The maximum number of End Users may not be exceeded. Client is solely responsible for its relationship with all End Users, for their use of the Trial On-Premise Software, and for ensuring that they comply with all terms and conditions of this Agreement. Client is responsible for all acts and omissions of End Users, and any violation of the terms and/or conditions of this Agreement by an End User shall be deemed to be a violation by Client of such terms and conditions.

   4.4. As between the Parties, the Trial On-Premise Software and all other Cytel IP and all worldwide Intellectual Property Rights therein, are and shall remain the sole and exclusive property of Cytel and, if applicable, its licensors, and You shall acquire no right of ownership or use with respect thereto except for the limited rights specified in Section 4.1. You acknowledge that Your limited access to and use of the Trial On-Premise Software are on a free trial basis subject to the terms and conditions herein. Except for the limited usage rights expressly granted hereunder, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license in any Cytel IP. All rights not expressly granted by Cytel under this Agreement are reserved by Cytel. Without limiting the foregoing, You acknowledge that the Trial On-Premise Software, including the inventions, know-how and methodology embodied therein, are proprietary to and include valuable trade secrets of Cytel and its licensors, and that the Trial On-Premise Software constitutes Confidential Information of Cytel. You agree to keep all such Confidential Information in confidence and to take all reasonable precautions to ensure that no unauthorized persons have access to the Trial On-Premise Software.

2. Termination and Suspension.

   5.1. You may discontinue Your use of the Trial On-Premise Software at any time. Either Party may terminate this Agreement at any time upon two (2) days notice to the other Party. Notwithstanding the foregoing, Cytel may terminate this Agreement at any time with immediate effect (i) if You breach any term of this Agreement, or (ii) in order to avoid or mitigate material harm to Cytel. Any termination by Cytel under this Agreement shall be without limitation of any other right or remedy available to Cytel.

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

   1. All rights and licenses granted by Cytel pursuant to this Agreement shall terminate.
   2. You shall immediately discontinue and further use of the Trial On-Premise Software and shall promptly uninstall all copies thereof from any and all servers, computers and other media owned or controlled by You. If requested by Cytel, You shall certify to Cytel in writing that it has fully complied with all of the foregoing.
   3. If requested by a Party, the other Party shall promptly destroy or return to the requesting Party, as directed, all of the requesting Party’s Confidential Information, and other materials of the requesting Party in such other Party’s possession or under its control. Notwithstanding the foregoing, neither Party shall be required to purge electronic backup media maintained in the ordinary course of business that may contain Confidential Information, and each Party shall be entitled to retain one archival copy of any Confidential Information to the extent it has been advised in writing by counsel that such retention is required to comply with applicable law.
   4. Any provision of this Agreement which, by its nature, would survive termination or expiration of this Agreement shall survive any such termination or expiration.

3. Fees.

   6.1. The Trial On-Premise Software under this Agreement is free of charge during the Trial Period.

4. Disclaimers and Exclusion of Warranties.

   7.1. CYTEL PROVIDES THE TRIAL ON-PREMISE SOFTWARE TO YOU “AS IS” AND “AS AVAILABLE” AND MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE TRIAL ON-PREMISE SOFTWARE AND/OR CYTEL IP, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES OF NONINFRINGEMENT, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, CYTEL MAKES NO WARRANTY OF ANY KIND THAT THE TRIAL ON-PREMISE SOFTWARE OR ANY RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SYSTEM OR SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED.

5. Limitation of Liability.

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

   8.2. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CYTEL’S AGGREGATE LIABILITY TO YOU FOR DAMAGES ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT OF ONE HUNDRED UNITED STATES DOLLARS ($100.00).

   8.3. Without limiting any other provision of this Agreement, You understand that the results obtained from Your use of, or access to, the Trial On-Premise Software are highly dependent on Your inputs into, and appropriate operation of, the Trial On-Premise Software. You agree to thoroughly test and verify the results obtained from Your use of, or access to, the Trial On-Premise Software. Cytel shall have no liability to You or any third parties, and You expressly assume all risk of liability and damages, based on or arising from Your use of, or access to, the Trial On-Premise Software, including any claims, suits, actions or proceedings related to or arising from (a) any illness or personal injury to You or Your patients, employees, subjects, users, or clients, allegedly caused by use of, or access to, the Trial On-Premise Software, (b) any clinical trial or other activity for which You elect to use the Trial On-Premise Software, or (c) Your use of results generated from the use of the Trial On-Premise Software.

6. Indemnification.

   9.1. You shall, at Your own expense, indemnify, hold harmless, and defend Cytel and its affiliates, and their respective employees, directors, officers, and agents, from and against any loss, cost, damage or expense (including reasonable attorneys’ fees) incurred in respect of any claim, demand, action, suit or other judicial proceeding asserted, brought or threatened by a third party (each, a “Claim”) that relates to (a) the use by You of the Trial On-Premise Software in breach of this Agreement or in violation of applicable law or third party rights; or (b) any matter described in Section 8.3 hereof. You may not consent to the settlement or entry of judgment in such Claim without Cytel’s prior written consent if such settlement or judgment would admit any wrongdoing on the part of Cytel or otherwise impose any obligation or liability on Cytel. Cytel may participate in (but not control) the defense of any such Claim with its own counsel at its own expense.

7. Confidentiality.

   10.1. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing), business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party under this Agreement, (b) was rightfully known to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party, (c) is rightfully received by the Receiving Party on a non-confidential basis from a third party, or (d) was independently developed by the Receiving Party without use of or reference to Confidential Information of the Disclosing Party.
   10.2. The Receiving Party will use the same degree of care that it uses to protect its own confidential information of like kind (but not less than reasonable care) to (a) avoid using or disclosing any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to the Disclosing Party’s Confidential Information to Receiving Party’s employees and contractors who (i) have a legitimate need to access Disclosing Party’s Confidential Information for purposes consistent with this Agreement and (ii) have signed confidentiality agreements with the Receiving Party containing protections not materially less protective than those contained herein.
   10.3. Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order or as otherwise required by law, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure unless such notice is prohibited by applicable law.
   10.4. Any breach of the confidentiality obligations set forth in this Section 10 would constitute a material breach of this Agreement, which the breaching Party acknowledges would cause irreparable harm to the non-breaching Party, leaving it without an adequate remedy at law. As such, any such breach shall entitle the non-breaching Party to injunctive relief in addition to all other remedies, without necessity of posting of a bond or other security in connection therewith. The preceding sentence is not intended, nor shall it be construed, to limit a Party’s right to dispute the factual basis underlying any contention that it has committed any breach.

8. Miscellaneous.
   11.1. Feedback. If You or any of Your employees, consultants, contractors, or agents sends or transmits any communications or materials to Cytel by mail, email, telephone, or otherwise, suggesting or recommending changes to Cytel IP, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), Cytel is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. You hereby assign to Cytel on Your behalf, and on behalf of Your employees, consultants, contractors and/or agents, all right, title, and interest in, and Cytel is free to use, without any attribution or compensation to any Party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever. Any and all Feedback is and shall be given entirely voluntarily, and Cytel shall be under no obligation to use any Feedback.11.2. Export Laws. The Trial On-Premise Software may be subject to export controls and other laws, restrictions, regulations and rules of the United States or other applicable jurisdictions, including the U.S. Export Administration Regulations (EAR) and Foreign Assets Control Regulations (collectively, “Export Laws”). You shall comply with all Export Laws applicable to its access and use of the Trial On-Premise Software. You represent, warrant, covenant and agree that (a) none of You or Your employees, directors, officers, or agents are or will be located in, or a national or resident of, any country or territory subject to territorial embargoes of the United States, United Kingdom, European Union, Australia or Canada, including Cuba, Iran, North Korea, Syria, or the Crimea, Donetsk and Luhansk regions (“Restricted Countries”); and (b) none of You or Your employees, directors, officers, or agents are or will be a person or entity, or owned by, under the control of, or affiliated with, a person or entity (i) identified on U.S. or other applicable government restricted party lists, such as the U.S. Office of Foreign Assets Control’s Specially Designated Nationals List, Foreign Sanctions Evaders List or Palestinian Legislative Council List or the U.S. Department of State’s Terrorist Exclusion List; or (ii) engaged in the design, development or production of nuclear, biological or chemical weapons, missiles or unmanned aerial vehicles. Without limiting the foregoing, Cytel may, immediately and without any notice to You, terminate or block access to the Trial On-Premise Software if Cytel identifies Your IP address, location or address of residence or use of the Trial On-Premise Software as originating from any Restricted Country.

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

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

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

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

   11.7. Integration; No Amendment. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter hereof. This Agreement may not be modified, and the rights and restrictions may not be altered or waived except in a writing signed by both Parties by authorized representatives of You and Cytel. Notwithstanding the foregoing, Cytel may make changes to this Agreement at any time and You agree that your continued use of the Trial On-Premise Software constitutes your acceptance of, and agreement to, such changes.

   11.8. Assignment. This Agreement, and the rights and obligations hereunder, may not be assigned or transferred by You, including pursuant to any merger, consolidation, or reorganization, or other transaction or series of related transactions resulting in a change of control of You. Any purported assignment or delegation by You in violation of the foregoing shall be null and void ab initio and of no force and effect.

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

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

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

   11.12. Notices. Any notice under this Agreement given by any Party to any other Party shall be in English, in writing, and will be delivered (as elected by the Party giving such notice): (i) by email to contracts@cytel.com with a copy to legal@cytel.com or any End User email address, or (ii) by certified letter or receipted commercial courier. Any Party may from time to time change such address or individual by giving the other Party notice of such change in accordance with this Section.