Software License Terms
These SOFTWARE LICENSE TERMS (these “Terms”) govern Client’s license to and use of one or more Cytel Software Programs and Cytel’s provision of Maintenance & Support Services related thereto. By executing an Order that references these Terms, Client accepts and agrees to all of the terms and conditions hereof. Client has no right to access or use any Software Program, or obtain any Maintenance & Support Services, other than pursuant to and in accordance with these Terms.
1. Definitions.
In addition to the capitalized terms defined upon first use in these Terms, the following capitalized terms shall have the meanings set forth below in this Section 1:
(i) “Client” means the person or entity entering into this Agreement by executing an Order with Cytel.
(ii) “Client Data” shall mean all data or other information in any medium submitted to the Licensed Software by or on behalf of Client.
(iii) “Cytel” means Cytel Inc., a Delaware corporation with a principal place of business located at 675 Massachusetts Ave, Cambridge, MA 02139.
(iv) “Cytel IP” means the Software Programs, 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 Software Program or the performance of this Agreement, and all Intellectual Property Rights related to any of the foregoing.
(v) “Documentation” means the instructions and user guides for a Software Program, whether accessed in printed form, online or downloaded, in each case as made available and updated by Cytel from time to time.
(vi) “End User” shall mean, subject to any applicable limitations specified in the License Parameters, any employee of Client (or any consultant, contractor or agent of Client approved in writing by Cytel) who requires access to the Licensed Software in order to perform his or her job functions for Client’s internal business purposes.
(vii) “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.
(viii) “Licensed Software” means the executable version of the specific Software Program(s) to which Client has purchased a license pursuant to an Order, together with any “Updates” that may, from time to time, be provided to Client by Cytel pursuant to Appendix A (as defined therein), and all Documentation related to any of the foregoing.
(ix) “License Parameters” means the license quantities, usage limits and/or charging metrics applicable to Client’s license to the Licensed Software, as set forth in the Order.
(x) “License Term” means the period for which Client has purchased a license to the Licensed Software, as set forth in an Order=.
(xi) “Maintenance & Support Services” means the maintenance and support services to be provided by Cytel with respect to the Licensed Software, as described in Appendix A.
(xii) “Order” shall mean an ordering document executed by the Parties with respect to Client’s purchase of a license to one or more Software Programs (but only to the extent pertaining to Software Programs, if such ordering document also covers products or services other than Software Programs) that incorporates by reference these Terms.
(xiii) “Outputs” shall mean documents and information containing analysis and/or summaries of Client Data generated from the use of the Licensed Software including power point slides and presentations, portable document files, reports, word documents, paper copies, excel, CSV or other data files or elements.
(xiv) “Party” means Client or Cytel and “Parties” means, collectively, both parties to this Agreement.
(xv) “Software Programs” means Cytel’s generally commercially available distributed or on-premise software product offerings (as distinguished from hosted software-as-a-service offerings), the specific features and functionality of which are described in the applicable Documentation.
2. General Terms; Scope of Agreement.
2.1 This Agreement is comprised of (and the term “this Agreement” refers to) these Terms together with the Order, any applicable Supplemental Terms and any Appendix attached hereto (each of which shall be deemed incorporated by reference).
2.2 If Cytel has accepted more than one Order, then each additional Order shall be deemed to form a new and
separate agreement between the Parties (and the term “this Agreement” shall be deemed to refer to the particular
agreement required by the context, independently of and separately from each other agreement between the Parties)
unless the additional Order specifically states that it is supplementing and amending an existing Order.
2.3 Certain Software Programs are subject to supplemental terms and conditions specific to such Software Programs, as specified in the applicable Order (“Supplemental Terms”). Any applicable Supplemental Terms are intended to supplement, not replace, these Terms.
2.4 In the event of a conflict, discrepancy or inconsistency between any documents forming part of this Agreement that is not expressly resolved in the documents, the terms will control in the following order (1) the Order, (2) any Supplemental Terms (but solely with respect to the particular Software Program to which they apply), (3) these Terms, and (4) any Appendix attached hereto.
2.5 The Licensed 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 Client of Third-Party Offerings, including the availability and performance of any Third-Party Offerings, is solely between Client and the applicable third-party provider and Cytel shall have no liability to Client 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.
2.6 The Licensed 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 Licensed Software as a whole, any Third-Party Components are made available “AS IS” without representations, warranties or other obligations of any kind.
3. Authorized Resellers
3.1 Client may authorize an Authorized Reseller to place Orders on Client’s behalf and manage Client’s account
associated with the Licensed Software. In such event, the Authorized Reseller will set Client’s pricing and payment
terms for that Order and Section 7 (Fees and Payments) of this Agreement shall not apply to any License Term
under that Order for which the Authorized Reseller has separately invoiced Client the applicable fees or charges.
3.2 The Authorized Reseller will provide details on any technical support or other services available from the
Authorized Reseller related to the Licensed Software (“Reseller Support Services”). To the extent Client obtains
any Reseller Support Services, Client grants all necessary authorizations and permissions required to facilitate such
services, including for the exchange of information between Cytel and such Authorized Reseller. All Reseller
Support Services are strictly between Client and the Authorized Reseller and excluded from the scope of Cytel’s
obligations under this Agreement.
3.3 Cytel reserves the right upon notice to Client to assign or otherwise transfer Client’s account associated with the
Licensed Software to Cytel or its nominee (such as a replacement Authorized Reseller designated by Cytel) if
Cytel’s agreement with the original Authorized Reseller expires or terminates or for any reason deemed advisable by
Cytel. In such event, all fees and charges (including renewal fees for subsequent License Terms) becoming due
following the effective date of such assignment or transfer will be payable to Cytel or such nominee, as specified in
Cytel’s notice.
4. Maintenance & Support Services.
During the License Term, Cytel shall make available to Client, at no additional charge, Maintenance & Support Services with respect to the Licensed Software, in accordance with the terms of Appendix A.
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Rights and Limitations of Use.
4.1 Subject to the terms and conditions of this Agreement (including Client’s payment obligations hereunder), Cytel grants to Client:
(a) a limited, non-exclusive, non-transferable license during the applicable License Term to install, execute and permit End Users to use the Licensed Software, in object code form only, in accordance with the Documentation and the applicable License Parameters, internally within Client’s organization for internal business purposes only; and
(b) a limited, non-exclusive, non-transferable, license to use Cytel IP solely to the extent incorporated or embedded in any Outputs which Client has created during the License Term and only if and to the extent necessary for Client’s use of such Outputs for internal business purposes.
4.2 Client shall be responsible for ensuring that the License Parameters are not exceeded. If the License Parameters specify a maximum number of “named” End Users, then each End User must be a unique individual (regardless of whether or not the individual is actively using the Licensed Software at any given time), except that an End User license may be permanently transferred from a former End User (such as an individual whose employment by Client terminates) to a replacement End User. Any time Client becomes aware that the License Parameters have been exceeded, Client shall promptly notify Cytel of the details of the excess, and shall upon Cytel’s request promptly execute an Order that includes the charges due for the excess, from the initial date of such excess use through to the end of License Term specified in the most recently executed Order, without limiting any other right or remedy available to Cytel.
4.3 Except for the rights granted in Section 4.1, no other rights in or to any Licensed Software or other Cytel IP, express or implied, are granted to Client. Without limiting the foregoing, Client agrees: (a) to access and use the Licensed Software only for bona fide Client projects 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 Licensed Software or Cytel IP, except that Client may make and maintain during the License Term the minimum number of backup copies of the Licensed 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 Licensed Software, Documentation or other Cytel IP; (d) not to distribute, sublicense, publish, sell, rent, lease or share any Licensed Software or otherwise permit anyone who is not an End User to use or access any Licensed Software; (e) not to use the Licensed 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 Licensed Software; (g) not to reverse engineer, decompile, disassemble or attempt to access or derive the source code or architecture of any Licensed Software or Cytel IP, except to the extent such activities cannot be restricted under applicable law; (h) not to use the Licensed 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 Licensed 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 4.3.
4.4 Client is solely responsible for its relationships with all End Users, for their use of the Licensed Software, and for ensuring that they comply with all terms and conditions of this Agreement. Client is responsible for all acts and omissions of its 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.
4.5 As between the Parties, the Licensed 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 Client shall acquire no right of ownership or use with respect thereto except for the limited rights specified in Section 4.1. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, any other license in any Cytel IP. All rights not expressly granted by Cytel under this Agreement are reserved by Cytel. Without limiting the foregoing, Client acknowledges that the Software Programs, including the inventions, know-how and methodology embodied therein, are proprietary to and include valuable trade secrets of Cytel and its licensors, and constitute Confidential Information of Cytel. Client agrees to keep all such Confidential Information in confidence and to take all reasonable precautions to ensure that no unauthorized persons (including Cytel competitors) have access to the Licensed Software.
5. License Term and Termination.
5.1 Cytel makes the Licensed Software available on a term-limited basis, and Client is purchasing a license to use the Licensed Software upon the terms and conditions set forth in this Agreement, for the License Term and subject to payment of the fees specified in the Order. Neither Party may terminate this Agreement or any Order for convenience prior to the end of the License Term.
5.2 This Agreement shall commence on the execution of an Order and shall, unless earlier terminated pursuant to the terms of this Agreement, continue for the License Term set forth therein. Client may not change the terms of any Order unilaterally or cancel any license to the Licensed Software during a License Term.
5.3 Either Party may terminate this Agreement by notice if the other Party breaches any material term of this Agreement and fails to cure such breach within 30 days after receipt of notice of the breach from the non-defaulting Party. Any such termination shall be without limitation of any other right or remedy available to the terminating Party. Notwithstanding the foregoing, Client shall not be permitted to terminate this Agreement pursuant to this Section 5.3 if, within the applicable 30-day cure period, Cytel has provided Client with reasonable assurances that the applicable breach will be remedied within a reasonable period of time not to exceed 120 days.
5.4 Either Party may terminate this Agreement immediately upon notice if the other Party makes an assignment for the benefit of creditors, admits in writing its inability to pay debts as they become due, files a petition in bankruptcy or has a petition filed against it in bankruptcy, or becomes the subject of any court or administrative proceeding related to its liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within 120 days.
5.5 Upon the termination or expiration of this Agreement for any reason:
(a) All rights and licenses granted by Cytel pursuant to this Agreement shall terminate.
(b) Client shall immediately discontinue and further use of the Licensed Software and shall promptly uninstall all copies thereof from any and all servers, computers and other media owned or controlled by Client. If requested by Cytel, Client shall certify to Cytel in writing that it has fully complied with all of the foregoing.
(c) Client shall pay all amounts that have accrued and are owed hereunder within ten days following any termination or expiration of this Agreement.
(d) 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.
(e) 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 and Payments.
6.1 Client shall pay to Cytel the fees as specified in the applicable Order. Except as otherwise set forth in this Agreement, all payment obligations under an Order are non-cancelable and amounts paid are non-refundable. Unless otherwise specified in the Order, all fees are payable in United States Dollars and Client shall pay all fees and charges within 30 days of the date of Cytel’s invoice therefor.
6.2 Cytel reserves the right to increase any fees at any time, provided that no increase of the license fees payable by Client for the Licensed Software shall take effect until the start of the next License Term following Cytel’s notice to Client of such fee increase, sent no later than 60 days prior to the start of such License Term.
6.3 Client shall pay to Cytel interest on the amount of any payment obligation not paid when due at a rate equal to the lower of (a) 1.5% per month or portion of a month or (b) the highest rate permitted by law. Client shall reimburse Cytel for all reasonable costs incurred by Cytel in collecting any late payments or interest, including reasonable attorneys’ fees, court costs, and collection agency fees.
6.4 Client shall also be responsible for paying all taxes applicable with respect to the transactions contemplated by this Agreement, except taxes based on Cytel’s net income.
6.5 If Client disputes in good faith the amount of any invoice, Client shall notify Cytel of the disputed amount and the reasons therefor no later than the date payment would otherwise be due, and Client shall timely pay the undisputed portion of the invoice. The Parties will attempt in good faith to resolve the dispute within 30 days after Cytel’s receipt of Client’s timely notice of dispute (the “Resolution Period”), during which time withholding of the disputed amount will not be considered a material breach of this Agreement and no interest will accrue for late payment of the disputed amount so long as Client is cooperating diligently to resolve the dispute. Upon resolution of the dispute, Client will pay any resolved amount promptly, but in any case within ten days of mutual written agreement resolving the dispute. If the dispute is not resolved within the Resolution Period, each Party will be entitled to pursue all available remedies.
7. Representation and Warranties.
7.1 Each Party represents and warrants to the other that (a) it is a corporation duly incorporated, validly existing and in good standing under the laws of the state of its incorporation; (b) it has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder; and (c) the person signing this Agreement on its behalf has the full power and legal authority to accept and bind such Party to the terms of this Agreement.
7.2 Cytel warrants to Client that the Licensed Software as delivered by Cytel will perform substantially in accordance with the specifications set forth in the Documentation. In the event of a nonconformance of this warranty, Client will promptly notify Cytel of such nonconformance and Cytel will, following receipt of such notice from Client, use commercially reasonable efforts to remedy the nonconformance in accordance with and subject to Appendix A. If Cytel fails to do so within 30 days, and such nonconformance has the effect of materially diminishing the functionality and value of the Licensed Software as a whole, then Client shall have the right to terminate the relevant Order upon notice and recover a refund of any unused license fees paid with respect to the then-remaining portion of any prepaid License Term; provided, however, that such termination shall not be permitted if, within such 30 day period, Cytel has provided Client with reasonable assurances that such nonconformance will be remedied within a reasonable period of time. The foregoing, together with any other applicable remedies specified in Appendix A, sets forth the exclusive remedies of Client, and the sole liability of Cytel, in the event of any nonconformance with any of the warranties set forth in this Section 7.2 or otherwise with respect to any errors, service interruptions or other problems with the Licensed Software.
7.3 The limited warranty in Section 7.2 is subject to and conditioned upon Client’s proper use of the Licensed Software for the purpose intended. The warranty does not cover any software or service which: (i) has been misused, subjected to unauthorized use, or modified by a party other than Cytel; or (ii) has a defect, nonconformance or other problem which resulted from acts or omissions of persons other than Cytel or from products, material, or software not provided by Cytel, including any issue arising from areas identified in Appendix A as being Client’s responsibility.
7.4 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CYTEL MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED SOFTWARE, CYTEL IP AND/OR ANY RELATED SERVICES, 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, EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7.2, CYTEL MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR ANY RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S 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.
7.5 Without limiting the foregoing, Client acknowledges that the Licensed Software was not designed to Client’s individual requirements and that Client is solely responsible for confirming that the Licensed Software meets such requirements. Client agrees that its purchase of a license to the Licensed 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.
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 CLIENT FOR DAMAGES ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT FOR THE LICENSED SOFTWARE FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.
8.3 CLIENT ACKNOWLEDGES THAT THE PRICING FOR THE LICENSED SOFTWARE REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT CYTEL WOULD NOT ENTER INTO THIS AGREEMENT ON THE TERMS HEREOF WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
8.4 Without limiting any other provision of this Agreement, Client understands that the results obtained from Client’s use of the Licensed Software are highly dependent on Client’s inputs into, and appropriate operation of, the Licensed Software. Client agrees to thoroughly test and verify the results obtained from its use of, or access to, the Licensed Software. Cytel shall have no liability to Client or any third parties, and Client expressly assumes all risk of liability and damages, based on or arising from Client’s use of the Licensed Software, including any claims, suits, actions or proceedings related to or arising from (a) any illness or personal injury to Client’s patients, employees, subjects, users, or clients, allegedly caused by use of, or access to, the Licensed Software, (b) any clinical trial or other activity for which Client elects to use the Licensed Software, or (c) Client’s use of results generated from the use of the Licensed Software.
9. Indemnification.
9.1 Client shall, at its 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 Client of the Licensed Software in breach of this Agreement or in violation of applicable law or third party rights; or (b) any matter described in Section 8.4 hereof.
9.2 Cytel shall, at its own expense, indemnify, hold harmless, and defend Client and its employees, directors, officers and agents from and against any loss, cost, damage or expense (including reasonable attorneys’ fees) incurred in respect of any Claim against Client alleging that the Licensed Software as provided by Cytel hereunder constitutes infringement of any valid United States patent, copyright or other Intellectual Property Right arising under United States law, except to the extent the Claim arises from or relates to: (a) information, designs, specifications or materials provided by or on behalf of Client or its End Users, including where Client specified the form, content or functionality of software alleged to be infringing; (b) the combination, operation or use by Client of the Licensed Software with other programs, hardware, data or specifications if a different combination would avoid the infringement; (c) Client’s methods or process of doing or conducting business; (d) Client’s failure to install or have installed an Update made available by Cytel and that would have avoided the infringement; or (e) any matter for which Client is obligated to defend or indemnify Cytel pursuant to Section 9.1. In the event of any actual Claim of infringement or if Cytel has reason to believe that such a Claim may be brought, Cytel may at its option and sole expense either (i) obtain the rights necessary to extinguish or avoid the infringement, or (ii) make modifications to the Licensed Software to avoid the infringement, provided such modifications do not materially diminishes the functionality and value of the Licensed Software as a whole or (iii) if Cytel determines that neither option described in clauses (i) or (ii) is commercially viable, Cytel may terminate this Agreement by notice to Client and issue a refund of any unused fees paid by Client with respect to the then-remaining portion of any prepaid License Term. THIS SECTION 9.2 STATES CLIENT’S SOLE REMEDY AND CYTEL’S ENTIRE LIABILITY FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9.3 As a condition to the obligations of the indemnifying party under either of Sections 9.1 or 9.2 above, the indemnified Party shall: (a) promptly notify the indemnifying Party of any Claim for which indemnification will be sought, provided that no delay in providing such notice shall relieve the indemnifying Party of any liability or obligations hereunder except to the extent the indemnifying Party has been prejudiced by such delay; (b) permit the indemnifying Party to assume control of the defense and settlement of such Claim with counsel of its choosing; and (c) provide cooperation reasonably requested by the indemnifying Party in investigating and defending such Claim, at the indemnifying Party’s expense. The indemnifying Party may not consent to the settlement or entry of judgment in such Claim without the indemnified Party’s prior written consent if such settlement or judgment would admit any wrongdoing on the part of the indemnified Party or otherwise impose any obligation or liability on the indemnified Party. The indemnified Party 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. Audit.
Client shall maintain records sufficient for Cytel to verify compliance with the provisions of this Agreement at all times during the term of this Agreement and for no less than two years thereafter. Cytel or its designee may audit such records and Client’s use of the Licensed Software to verify its compliance with the License Parameters and the other provisions of this Agreement, upon reasonable advance notice, not more than once per calendar year unless Cytel has reasonable cause to believe that Client is using or permitting the Licensed Software to be used in an unauthorized manner. Client will cooperate fully with any audits by Cytel or its designee hereunder. If any audit reveals that the Licensed Software has been used in excess of the applicable License Parameters or in any other unauthorized manner, (i) Client will, within 30 days of receipt of Cytel’s invoice, reimburse Cytel for the reasonable, documented costs of such audit and pay any additional charges that would apply, under Cytel’s then-current prices, for such excess or other unauthorized use, without limitation of any other remedies Cytel may have under law or this Agreement; and (ii) Cytel may henceforth have this right of audit more frequently that once per year.
12. Miscellaneous.
12.1 Feedback. If Client or any of its 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. Client hereby assigns to Cytel on Client’s behalf, and on behalf of its 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 Publicity. Cytel may use Client’s name and logo in its marketing materials and website to identify Client as a customer. Client hereby grants to Cytel a non-exclusive, non-transferable, worldwide, royalty-free license to use Client’s trademarks, service marks, and trade names in conjunction with the foregoing.
12.3 Export Laws. The Licensed 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”). Client shall comply with all Export Laws applicable to its handling or use of the Licensed Software, and shall not export or re-export, directly or indirectly, the Licensed Software, unless Client has fully complied with all applicable Export Laws and obtained appropriate authorization from the U.S. Commerce Department and/or any other relevant government authorities. Without limiting the foregoing, Client represents, warrants, covenants and agrees that (a) none of Client or its employees, directors, officers, agents or End Users is 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 Client or its employees, directors, officers, agents or End Users is 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.
12.4 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.
12.5 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 Client agree to amend this Agreement with replacement provisions containing mutually acceptable terms and conditions.
12.6 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.
12.7 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.
12.8 Integration; No Amendment. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter hereof. Terms and conditions on any Client purchase order are expressly rejected and superseded by the terms and conditions set forth in this Agreement. No waiver, modification, alteration, or amendment of any of the terms or conditions hereof shall be effective unless and until set forth in a writing duly signed by an officer of Cytel and by Client.
12.9 Assignment. This Agreement, and the rights and obligations hereunder, may not be assigned or transferred by Client, including pursuant to any merger, consolidation, or reorganization, or other transaction or series of related transactions resulting in a change of control of Client, without the prior written consent of Cytel. Any purported assignment or delegation by Client in violation of the foregoing shall be null and void ab initio and of no force and effect. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the Parties.
12.10 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.
12.11 Citation. If the Licensed Software is used by Client to obtain results that are published in a scientific journal or other publication, Client will acknowledge its use of the Licensed Software with an appropriate citation, which shall include Cytel’s full corporate name and the name of the Licensed Software used.
12.12 Federal Acquisition Regulations. For agencies of the U.S. Government, the Software Programs 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 Software Program 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.
12.13 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.
12.14 Notices. Any notice under this Agreement given by any Party to any other Party shall be in English, in writing, and will be deemed properly given when sent to the intended recipient by certified letter, receipted commercial courier, or electronically receipted e-mail transmission (acknowledged in like manner by the intended recipient) to the respective addresses shown on the Order. 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. Notices to Cytel shall include an emailed copy to software.contracts@cytel.com and legal@cytel.com.
12.15 Signatures. Any Order may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall together be deemed to constitute one and the same instrument. The Parties agree that execution of an Order by industry standard electronic signature software and/or by exchanging PDF signatures shall have the same legal force and effect as the exchange of original signatures, and that in any proceeding arising under or relating to this Agreement, each Party hereby waives any right to raise any defense or waiver based upon execution of an Order by means of such electronic signatures or maintenance of the executed Order electronically.
APPENDIX A
Maintenance Services; Service Level Agreement
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Definitions.
Business Days: Any day other than a Saturday, Sunday, or legal holiday (USA).
Business Hours: Business Days, 6am to 6pm GMT
Problem: a reported, verifiable and reproducible bug, error or similar functional problem with the Licensed Software that prevents it from functioning substantially in accordance with the applicable Documentation.
Response: Cytel’s first response to Client subsequent to Client submitting a support request via the support channels set forth in Section 4 of this Appendix A.
Solution: Action taken to repair the Problem.
Update: All bug fixes, patches, workarounds, and maintenance releases to the Licensed Software that Cytel makes available generally to its customers without charging additional fees
Workaround: A temporary measure (which may include, at Cytel’s sole option, a rollback to the previous release of the Licensed Software) that reduces or eliminates the impact of a Problem for which a full resolution is not yet available.
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Software Support and Maintenance.
Cytel will perform the following functions in an effort to ensure that the Licensed Software is stable, secure, and functioning, in accordance with the service levels set forth in Section 3 of this Appendix A.
(a) Software Incident Management. Cytel will respond, escalate, and use commercially reasonable efforts to resolve Problems in accordance with the service levels provided in Section 3 of this Appendix A.
(b) Software Maintenance. From time to time, Cytel may provide standard maintenance and make available Updates. Unless otherwise agreed pursuant to a separate statement of work signed by the Parties, Client will be solely responsible for installing, configuring and implementing each Update in Client’s production environment.
(c) Excluded Services. Notwithstanding anything to the contrary contained herein, the following shall be excluded from the scope of the Maintenance & Support Services, except to the extent otherwise agreed by the Parties in writing (such as, pursuant to a statement of work for professional services separately ordered by Client):
- Any issue which, following investigation by Cytel, is determined not to be a Problem in the Licensed Software, including issues related to hardware configuration and support, operating systems or other Third-Party Offerings or any cause beyond Cytel’s reasonable control including those set forth in Section 12.13 of the Terms;
- Any issue related to alterations of or modifications to the Licensed Software made by anyone other than Cytel or its authorized representatives;
iii. Any issue related to Client’s failure to install or have installed an Update made available by Cytel;
- Any services related to support for statistical use, methodology questions or work required to configure or customize reports;
- Maintenance or support services for a release issued more than 2 years prior to the date of the support request, unless such release remains the most current release;
- The installation or operation of any Licensed Software other than in accordance with the applicable Documentation;
vii. Any other software, functionality, or items for which Cytel does not provide support and maintenance services to its customer base generally;
viii. Any issues that result from Client’s failure to adhere to any required configurations, use supported platforms, follow any Cytel policies for acceptable use, or Client’s use of the Licensed Software in a manner inconsistent with the features and functionality of the Licensed Software (e.g., attempts to perform operations that are not supported) or inconsistent with Cytel’s published guidance;
- Tracking of and reporting on Problems or other Client issues; other than as may be provided via the contact information provided below (see Section 4 – Support Request below);
- Reimbursement of the cost or expense of any Client personnel who assist Cytel in the provision of Maintenance & Support Services; and
- Any issue related to a failure on Client’s part to comply with any of its obligations under this Agreement, including, without limitation, issues resulting from Client’s failure to follow appropriate security practices.
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Service Levels.
Cytel will use commercially reasonable efforts to address any Problem(s) within the timeframes set forth below. Response and Problem resolution are conditioned on the Client submitting the support request in accordance with Section 4 of this Appendix A.
Severity: Defines the impact that a given Problem has on the Licensed Software and shall be determined in accordance with the table below. The severity level for a reported Problem is initially set by the person logging the issue and is confirmed during the triage process. Severity can be changed by the Cytel support team if it disagrees with the assigned severity level.
Table 1: Severity Level Descriptions
4.Support Requests
During Business Hours, Cytel will provide reasonable email and telephone technical support to answer questions from Client’s designated contact concerning Problems.
Prior to submitting a support request, Client is expected to consult the relevant Documentation and/or the Knowledge Base available via the MyCytel portal. If Client is unable to resolve the issue by referencing the Documentation and/or Knowledge Base, then Client may submit a support request to the Cytel support center via the contact information provided below. If Client chooses to make the initial notification via phone, then the Client shall immediately follow up with a written notice to Cytel.
When submitting a support request, Client must furnish all information including, without limitation, the severity level based on Table 1: Severity Level Descriptions above and assistance needed by Cytel to address the reported issue, including the severity level based on the Severity Level Definitions Table. Without limiting the generality of the foregoing, Client shall promptly furnish sample input and output, provide remote electronic access to the License Software and Client’s data and database, provide assistance in isolating and reproducing the suspected Problem, perform diagnostics and tests requested by Cytel, and carry out any required remedial installation or configuration tasks requested by Cytel.
The definitions set forth in Table 1: Severity Level Descriptions above are used for classifying issues. These classifications ensure consistent treatment of problems handled by Cytel support. Severity Level 3 is the default severity level to which all cases are initially set unless otherwise specified by the Client or the Cytel support engineer. The Cytel support representative handling the case will work with the Client to establish what severity should be assigned.
All new cases will initially be taken and handled by the Cytel support representatives on duty at the time when the Problem is reported. To ensure that progress can continue, if the Client has Severity Level 1 issues, they must provide Cytel with a highly available contact during this period that will assist the support and development organizations with data gathering, testing, and applying all fixes to the service. If Cytel cannot duplicate the Problem in-house, then Cytel support may request assistance to troubleshoot the issue on the Client’s end.
Support requests should always be initiated through the Cytel support service center, rather than by contacting Cytel personnel directly, in order to ensure proper logging and tracking of issues. The Cytel support service center will determine which Cytel personnel are needed to address each support request.
Cytel support center contact information:
MyCytel portal
Telephone Support:
Phone Number: +1 617.661.2011 Option 4
Hours of Support: Business Hours
Email Support:
Email Address: support@cytel.com