NON-EXCLUSIVE SOFTWARE LICENSE AGREEMENT
THIS NON-EXCLUSIVE LICENSE AGREEMENT (“Agreement”) is a legal agreement between ____________________________, a business corporation with offices at _____________________ (the “Licensor”) and University of Rochester, an educational institution chartered by the State of New York, having its business office at 601 Elmwood Avenue., Rochester NY (“Licensee”) and governs the license of certain software as more fully set forth herein (the “Software”).
THIS NON-EXCLUSIVE LICENSE AGREEMENT DOES NOT CONSTITUTE A SALE OF THE SOFTWARE. IT IS A GRANT OF PERMISSION TO UTILIZE THE SOFTWARE. THIS AGREEMENT DOES NOT TRANSFER THE USER TITLE TO THE SOFTWARE AND THE LICENSEE DOES NOT HAVE SOLE AND EXCLUSIVE RIGHTS TO THE SOFTWARE.
1. GRANT OF LICENSE. Licensor hereby grants, and Licensee hereby accepts, a nontransferable, nonexclusive, worldwide and royalty-free license to use the Software, subject to the conditions and for the period specified in this Agreement.
1.1 Software Defined – The term “Software” as used in this agreement shall mean all computer programs licensed under this Agreement as more fully described on Exhibit A attached hereto, including all related technical information, files, documentation, and other materials, whether in whole or in part, including any and all modifications, derivative works and copies of the foregoing, regardless of the form or media in or on which they may exist.
2. LICENSE RESTRICTIONS.
(a) Licensee agrees to use the Software for the use of the University of Rochester’s Telemetric and holter ECG Warehouse (THEW), and not for any other purpose not specifically stated in this Agreement. Licensee may make copies of the Software only for internal archival or back-up purposes. Title in all copies shall be reserved by Licensor. Software Licensee may not modify, translate, reverse engineer, de-compile, disassemble (except to the extent that this restriction is expressly prohibited by law) the Software. Licensee may not remove any proprietary notices or labels on the Software or any related documentation.
(b) Licensee may not use the Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.
(c) Licensee agrees to only use the Software and any related documentation in a manner that complies with all applicable laws in the jurisdictions in which it uses the Software and documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
3. LICENSE PERIOD. The license granted in this Agreement shall remain in full force for a minimum term of five years unless terminated prior to that time as provided herein.
4. PAYMENT. In payment for the license granted under this Agreement, Licensee shall pay Licensor the total sum of $0.00 as a license fee, due and payable in full upon the execution of this Agreement. Licensee shall pay all taxes that may be assessed on the Software or its use, including personal property taxes, sales and use taxes and excise taxes.
5. DELIVERY AND ACCEPTANCEOF SOFTWARE. The Software shall be deemed to have been accepted by Licensee upon delivery. Upon any refusal by Licensee to accept the Software, Licensee must return the Software to Licensor and report reasons of unacceptability of the Software.
6. PROPERTY RIGHTS. Licensee acknowledges and agrees that the Software is the proprietary property of Licensor, and except to the extent expressly authorized under this Agreement, Licensee receives no rights to and will not sell, assign, lease, market, transfer, encumber or otherwise suffer to exist any lien or security interest on, nor allow any third person, firm, company or other entity to copy, reproduce or disclose the Software, whether in whole or in part, in any manner whatsoever. All rights not specifically granted in this Agreement, including Federal and International Copyrights, are reserved by Licensor. Licensee likewise agrees 2 to keep the Software in a secure place and to instruct its personnel to keep the Software confidential by using reasonable care.
7. WARRANTIES AND LIABILITIES. The Software is provided to you on an “AS IS” basis without technical support or warranty of any kind from Licensor, including, without limitation, a warranty of merchantability, fitness for a particular purpose and non-infringement. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO 90 DAYS FROM THE DATE OF DELIVERY. LICENSOR SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. LICENSOR ALSO MAKES NO WARRANTY THAT (1) THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (2) THE SOFTWARE PRESCRIBES REMEDIES OR SUGGESTS THERAPEUTIC STRATEGIES (3) THE SOFTWARE WILL BE PERSONALIZED TO INDIVIDUAL PATIENTS OR CLIENTS (4) THE SOFTWARE WILL PRODUCE A CERTAIN TYPE OF RESULT OR REMEDY (5) INFERENCES MADE BY THOSE INDIVIDUALS USING THIS SOFTWARE DO NOT REFLECT THOSE OF LICENSOR AND LICENSOR IS NOT RESPONSIBLE FOR THE PROGRESS OR REGRESSES OF PATIENTS OR CLIENTS USING THIS SOFTWARE (6) THAT THE SOFTWARE COULD OR SHOULD BE USED IN LIEU OF GOOD JUDGMENT AND SOUND BUSINESS KNOWLEDGE; (7) THAT THE SOFTWARE CAN BE USED IN LIEU OF PROFESSIONAL ADVICE.
8. INDEMNIFICATION BY LICENSEE. Licensee agrees to, at its own expense, hold harmless, indemnify and defend Licensor, its officers, directors and employees, from and against any claims asserted by a third party against Licensor relating to any claims that Licensee has violated any terms of this License Agreement, including, but not limited to, the modification or conversion of the Software not specifically allowed by this Agreement.
9. INDEMNIFICATION BY LICENSOR. Licensor agrees to, at its own expense, hold harmless, indemnify and defend Licensee against any claims that the Software infringes any copyright or patent in existence on the date the Software was initially provided to Licensee.
10. TERMINATION. This License Agreement will automatically terminate upon the occurrence of any of the following: (i) Licensee fails to comply with any term of this Agreement; (ii) Expiration of the term specified in this Agreement or (iii) cessation of business by Licensee or any successor or assign to whom the Software has been legitimately transferred. 11. NO ASSIGNMENT. You may not assign, sell, transfer, delegate or otherwise dispose of this Agreement, whether voluntarily or involuntarily, by operation of law or otherwise. Any purported assignment, transfer or delegation by you will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
12. TECHNICAL SUPPORT. Licensor has no obligation to provide support, maintenance, upgrades, modifications or new releases for the Software or any related documentation under this Agreement.
13. ALTERATIONS. This Agreement may NOT be altered, supplemented or amended by the use of any other document(s) unless otherwise agreed to in a separate written agreement signed by both Licensee and Licensor.
18. PRODUCT. Licensor’s software is updated and revised from time to time. Licensor may revise and discontinue products at any time without notice to you.
(a) Arbitration & Jurisdiction. Licensee and Licensor agree that the exclusive remedy for all disputes and claims relating in any way to, or arising out of, this Agreement, or Licensee’s use of the Software, (including the arbitrability of any claim or dispute and the enforceability of this paragraph), or to any other alleged act or omission by Licensee or Licensor toward the other, shall be final and binding arbitration. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association 3 (“AAA”) before a panel of three arbitrators and conducted in the United States of America, State of New York, pursuant to the laws of the State of New York.
(b) Complete Agreement. This Agreement shall constitute the complete and exclusive agreement between Licensee and Licensor. The terms and conditions contained in this Agreement may not be modified by Licensee except in a writing duly signed by Licensee and Licensor. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
LICENSOR LICENSEE: __________________________________ University of Rochester _____________________________________ By: __________________________________
Name: Majorie Hunter
Office of technology Transfer
Exhibit A: Software Licensed