I. DEFINITIONS
In addition to those terms defined elsewhere herein, as used in this Agreement and any Schedule hereto, the following terms shall have the following meanings: “Designated Location” is the Licensee facility where Licensee is authorized to use the Software and which is located within a local Zip Code of the address specified in the License Schedule. “Fees” are License Fees and other fees payable under this Agreement. “Software” is Meninx’s software Semeion, in object code form only, and related end-user documentation (“User Documentation”) licensed by Licensee as specified in each Schedule.
II. CONTENT OF THE SOFTWARE; GRANT OF LICENSE
The materials that are the subject of this Agreement shall consist of the Semeion Software Suite developed by the Licensor (hereinafter referred to as the "the Software"). Licensee and its Authorized Users acknowledge that the copyright and title to the Software and any trademarks or service marks relating thereto remain with Licensor and/or its suppliers. Neither Licensee nor its Authorized Users shall have right, title or interest in the Software except as expressly set forth in this Agreement. Licensor hereby grants to Licensee, upon payment by Licensee of the License Fees, a non-exclusive and nontransferable use of the Software and the right to provide the Software to Authorized Users in accordance with this Agreement, as set forth in the applicable License Schedule (the “License”).
III. TITLE
This Agreement does not provide Licensee with title or ownership of the Software, but only with a right of limited use. Licensee shall at all times keep the Software free and clear of all claims, liens and encumbrances. Licensee acknowledges that the object and source code of the Software includes valuable trade secrets of Licensor. Licensor shall have sole and exclusive ownership of all right, title and interest in and to:
(i) the Software and User Documentation (including any copies thereof);
(ii) any new Versions of the Software, made or provided by Licensor pursuant to this Agreement, whether alone or with any contributions from Licensee or its personnel; and
(iii) all intellectual property rights pertaining to (i) and (ii), including but not limited to, copyrights, trademarks, patents and trade secrets, subject only to the limited rights and privileges expressly granted by Licensor herein. Licensor claims and reserves all rights and benefits afforded under national and international law in the Software and User Documentation as copyrighted works.
To the extent Licensee or its personnel acquire any ownership right or interest in the Software or any portion thereof by operation of law or any means other than a sale or written assignment of such rights by Licensor to Licensee, Licensee shall immediately irrevocably assign all such right and interest exclusively to Licensor and will cooperate with Licensor in obtaining and executing any documentation necessary to effectuate the foregoing obligation.
IV. DELIVERY/ACCESS OF THE SOFTWARE TO LICENSEE
Licensor will provide the Software to the Licensee in the following manner: Network Access: The Software will be stored at one or more Licensor locations in digital form accessible by telecommunications links between such locations and authorized networks of Licensee. File Transfer: Copies of the Software will be provided to the Licensee through electronic transfer (by means of File Transfer Protocol or otherwise).
V. FEES
Licensee agrees to pay all Fees due under each Schedule from the Effective Date as specified in the License Schedule, until such Schedule is terminated. The term of each License is congruent with the term of the Schedule under which such License is granted; commencing on the Effective Date and continuing in perpetuity until the Schedule expires or is terminated.
Licensor will invoice Licensee for all Fees. Licensee shall pay Licensor for Fees within thirty (30) days of the date of such invoices. Any amounts not paid by Licensee within thirty (30) days of the specified due date and after giving notice to Licensee of the non-payment and a reasonable grace period shall bear interest at 3% from the due date until such amounts are paid in full.
All Fees shall be paid in Swiss Francs unless otherwise specified in the License Schedule.
All Fees are exclusive of any tariffs, duties or taxes imposed or levied by any government or governmental agency. Licensee agrees to hold Licensor harmless from all claims and liability arising from Licensee’s failure to report or pay such tariffs, duties and taxes and agrees to promptly reimburse Licensor for any taxes or penalties paid by Licensor to any entity because of Licensee’s failure to pay such tariffs, duties, or taxes.
VI. AUTHORIZED USE OF THE SOFTWARE
Authorized Users: "Authorized Users" are: Persons Affiliated with Licensee. Full and part time students and employees (including faculty, staff, affiliated researchers and independent contractors) of Licensee and the institution of which it is a part, regardless of the physical location of such persons: Walk-ins: Patrons not affiliated with Licensee who are physically present at Licensee's site(s) ("walk-ins"). Authorized Uses: Licensee and Authorized Users may make all use of the Software as is consistent with the Fair Use Provisions of United States and international law. Nothing in this Agreement is intended to limit in any way whatsoever Licensee's or any Authorized User's rights under the Fair Use provisions of United States or international law to use the Software. End customers: Licensee’s end customers not affiliated with Licensee who are under contract with Licensee. The Software may be used for purposes of research, education or other non-commercial use as follows: Display: Licensee and Authorized Users shall have the right to electronically display the Software. Digitally Copy: Licensee and Authorized Users may download and digitally copy a reasonable portion of the Software. Print Copy: Licensee and Authorized Users may print a reasonable portion of the Software. Course Packs: Licensee and Authorized Users may use a reasonable portion of the Software in the preparation of Course Packs or other educational materials. Electronic Reserve: Licensee and Authorized Users may use a reasonable portion of the Software for use in connection with specific courses of instruction offered by Licensee and/or its parent institution. Databases: Compilation, or collection of information, Authorized Users shall be permitted to extract or use information contained in the database for educational, scientific, or research purposes, including extraction and manipulation of information for the purpose of illustration, explanation, example, comment, criticism, teaching, research, or analysis. Electronic Links: Licensee may provide electronic links to the Software from Licensee's web page(s), and is encouraged to do so in ways that will increase the usefulness of the Software to Authorized Users. Licensor staff will assist Licensee upon request in creating such links effectively. Licensee may make changes in the appearance of such links and/or in statements accompanying such links as reasonably requested by Licensor. Caching: Licensee and Authorized Users may make such local digital copies of the Software as are necessary to ensure efficient use by Authorized Users by appropriate browser or other software. Indices: Licensee may use the Software in connection with the preparation of or access to integrated indices to the Software, including author, article, abstract and keyword indices.
VII. ACCESS BY AND AUTHENTICATION OF AUTHORIZED USERS
Licensee and its Authorized Users shall be granted access to the Software pursuant to the following: IP Addresses: Authorized Users shall be identified and authenticated by the use of Internet Protocol ("IP") addresses provided by Licensee to Licensor. Passwords: Authorized Users shall be identified and authenticated by the use of usernames and passwords assigned by Licensee. Licensee shall be responsible for issuing and terminating passwords, verifying the status of Authorized Users, providing lists of valid passwords to Licensor and updating such lists on a regular basis.
VIII. SPECIFIC RESTRICTIONS ON USE OF THE SOFTWARE
Unauthorized Use: Except as specifically provided elsewhere in this agreement, Licensee shall not knowingly permit anyone other than Authorized Users to use the Software. Modification of the Software: Licensee shall not modify or create a derivative work of the Software without the prior written permission of Licensor. Removal of Copyright Notice: Licensee may not remove, obscure or modify any copyright or other notices included in the Software. Commercial Purposes: Other than as specifically permitted in this Agreement, Licensee may not sale the Software or my not create bulk reproduction or distribution of the Software in any form.
IX. LICENSOR PERFORMANCE OBLIGATIONS
Availability of the Software: Within 5 days after acceptance of the License Schedule by Licensor, Licensor shall make the Software available to Licensee and Authorized Users. Documentation: Licensor will provide and maintain help files and other appropriate user documentation. Support: Licensor will offer activation or installation support, including assisting with the implementation of any Licensor software. Licensor will offer reasonable levels of continuing support to assist Licensee and Authorized Users in use of the Software. Licensor will make its personnel available by email, phone or fax for feedback, problem-solving, or general questions. Training: Licensor will provide appropriate training to Licensee staff relating to the use of the Software and any Licensor software. Quality of Service: Licensor shall use reasonable efforts to ensure that the Licensee's server or servers have sufficient capacity and rate of connectivity to provide the Licensee and its Authorized Users with a quality of service comparable to current standards in the on-line information provision industry in the Licensee's locale. Licensee shall use reasonable efforts to provide continuous service with an average of 95% up-time per month. The 5% down-time includes periodic unavailability due to maintenance of the server(s), the installation or testing of software, the loading of additional The Software as they become available, and downtime related to the failure of equipment or services outside the control of Licensee, including but not limited to public or private telecommunications services or internet nodes or facilities. Scheduled down-time will be performed at a time to minimize inconvenience to Licensee and its Authorized Users. If the Software fails to operate in conformance with the terms of this Agreement, Licensee shall immediately notify Licensor. Notification of Modifications of the Software: Licensee understands that from time to time the Software may be added to, modified, or deleted from by Licensor and/or that portions of the Software may migrate to other formats. Licensor shall give prompt notice of any such changes to Licensee. If any modifications render the Software less useful to the Licensee or its Authorized Users, the Licensee may treat such modifications as a material breach subject to the Early Termination provisions of this Agreement below. Completeness of Content: Where applicable, Licensor will inform Licensee of instances where online content differs from the print versions of the Software. Where applicable, Licensor shall use reasonable efforts to ensure that the online content is at least as complete as print versions of the Software, represents complete, accurate and timely replications of the corresponding content contained within the print versions of such Materials, and will cooperate with Licensee to identify and correct errors or omissions. Withdrawal of the Software: Licensor reserves the right to withdraw from the Software any item or part of an item for which it no longer retains the right to publish, or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable. Licensor shall give written notice to the Licensee of such withdrawal no later than 30 days following the removal of any item pursuant to this section.
X. LICENSEE PERFORMANCE OBLIGATIONS
Provision of Notice of License Terms to Authorized Users: Licensee shall make reasonable efforts to provide Authorized Users with appropriate notice of the terms and conditions under which access to the Software is granted under this Agreement including, in particular, any limitations on access or use of the Software as set forth in this Agreement. Protection from Unauthorized Use: Licensee shall use reasonable efforts to inform Authorized Users of the restrictions on use of the Software. In the event of any unauthorized use of the Software by an Authorized User, (a) Licensor may terminate such Authorized User's access to the Software, (b) Licensor may terminate the access of the Internet Protocol ("IP") address(es) from which such unauthorized use occurred, and/or (c) Licensee may terminate such Authorized User's access to the Software upon Licensor's request. Licensor shall take none of the steps described in this paragraph without first providing reasonable notice to Licensee (in no event less than thirty (30) days) and cooperating with the Licensee to avoid recurrence of any unauthorized use. Maintaining Confidentiality of Access Passwords: Licensee shall issue log-on identification numbers and passwords to each Authorized User and use reasonable efforts to ensure that Authorized Users do not divulge their numbers and passwords to any third party. Licensee shall also maintain the confidentiality of any institutional passwords provided by Licensor.
XI. MUTUAL PERFORMANCE OBLIGATIONS
Confidentiality of User Data: Licensor and Licensee agree to maintain the confidentiality of any data relating to the usage of the Software by Licensee and its Authorized Users. Such data may be used solely for purposes directly related to the Software and may only be provided to third parties in aggregate form. Raw usage data, including but not limited to information relating to the identity of specific users and/or uses, shall not be provided to any third party. Implementation of Developing Security Protocols: Licensee and Licensor shall cooperate in the implementation of security and control protocols and procedures as they are developed during the term of this Agreement.
XII. TERMINATION
By Either Party: Either party may terminate this Agreement by written notice of termination to the other party upon a material breach by the other party that is reasonably deemed by the non-breaching party to be non-curable or that has not been cured within thirty (30) days of written notice of such breach. By Licensor for Licensee’s Breach: Notwithstanding anything herein to the contrary, Licensor may terminate this Agreement immediately and without the requirement of any cure period in the event Licensee breaches Sections 4 or 6 hereof. Termination by Licensor shall be without prejudice to any other remedies that Licensor may have at law or equity. By Licensor for Failure to Pay: Licensor may terminate this Agreement or any Schedule with fifteen (15) days’ written notice if Licensee is delinquent in making payment of any Fees due under this Agreement or any other agreement with Licensor and such delinquency continues for a period of thirty (30) days after such payment was due. Termination of Schedule by Licensee: Licensee may terminate a Schedule at any time with one hundred twenty (120) days’ written notice to Licensor, provided however
(i) that such termination does not reduce nor eliminate Licensee’s obligation to pay the License Fees then owed or owed for any remaining period of the Committed Term nor entitle Licensee to any refund of paid Fees.
(ii) that a termination occurs after one (1) year operation of the Software.
The expiration or termination of any Schedule will not terminate other Schedules or this Agreement. The termination of this Agreement will terminate all Schedules. Return of Software: Within forty-five (45) days following the date of termination of this Agreement or any Schedule for any reason, Licensee shall return all copies of the Software licensed under all terminated Schedules, whether modified or unmodified. At Licensor’s request, Licensee shall destroy all copies of the Software and other materials not returned to Licensor and certify to Licensor in writing Licensee’s full compliance with Licensor’s request. Authorized Users Access: Upon Termination of this Agreement, online access to the Software by Licensee and Authorized Users shall be terminated.
XIII. WARRANTIES
Subject to the Limitations set forth elsewhere in this Agreement: Licensor warrants that it has the right to license the rights granted under this Agreement to use The Software, that it has obtained any and all necessary permissions from third parties to license the Software, and that use of the Software by Authorized Users in accordance with the terms of this Agreement shall not infringe the copyright of any third party. Licensor warrants that the physical medium, if any, on which the Software is provided to Licensee will be free from defects for a period of thirty (30) days from delivery.
XIV. LIMITATIONS ON WARRANTIES
Notwithstanding anything else in this Agreement: Neither party shall be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, arising out of the use of or the inability to use the Software. Licensor makes no representation or warranty, and expressly disclaims any liability with respect to the content of any The Software, including but not limited to errors or omissions contained therein, libel, infringement of rights of publicity, privacy, trademark rights, moral rights, or the disclosure of confidential information. DISCLAIMER OF OTHER WARRANTIES: THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE PERFORMANCE, QUALITY, OR FUNCTIONALITY OF THE SOFTWARE OR ANY LATENT OR PATENT DEFECTS THAT MAY EXIST WITH RESPECT TO THE SOFTWARE, OR ANY PERFORMANCE OF MAINTENANCE BY LICENSOR AS CONTEMPLATED HEREIN. LICENSOR MAKES NO WARRANTIES RESPECTING ANY HARM THAT MAY BE CAUSED BY THE TRANSMISSION OF A COMPUTER VIRUS, WORM, TIME BOMB, LOGIC BOMB OR OTHER SUCH COMPUTER PROGRAM. LICENSOR FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO AUTHORIZED USERS, OR TO ANY THIRD PARTY. LIMITATION OF LIABILITY: IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF TIME, MONEY, DATA OR GOODWILL, WHICH MAY ARISE OUT OF THIS AGREEMENT (INCLUDING ANY SCHEDULE) OR THE PERFORMANCE OR USE OF ANY ITEM OR SERVICE PROVIDED FOR UNDER ANY LICENSE EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS ACTIONS OR DEMANDS.
XV. MISCELLANEOUS
Confidentiality: Licensor and Licensee shall keep the terms of this Agreement and any Schedules in strict confidence for a period of three (3) years from the date of Termination of this Agreement, except for disclosures required by law, necessary to establish or assert rights hereunder, or authorized in writing by Licensor. Authority to Sign: The persons signing this License Schedule represent and warrant that each is authorized to act on behalf of himself/herself, the partnership, corporation, Limited Liability Company or other legal entity for which each signs.
XVI. INDEMNITIES
Each party shall indemnify and hold the other harmless for any losses, claims, damages, awards, penalties, or injuries incurred by any third party, including reasonable attorney's fees, which arise from any alleged breach of such indemnifying party's representations and warranties made under this Agreement, provided that the indemnifying party is promptly notified of any such claims. The indemnifying party shall have the sole right to defend such claims at its own expense. The other party shall provide, at the indemnifying party's expense, such assistance in investigating and defending such claims as the indemnifying party may reasonably request. This indemnity shall survive the termination of this Agreement.
XVII. ASSIGNMENT AND TRANSFER
Neither party may assign, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
XVIII. GOVERNING LAW
This Agreement shall be interpreted and construed according to, and governed by, the laws of Switzerland, excluding any such laws that might direct the application of the laws of another jurisdiction. The state courts located in Switzerland shall have jurisdiction to hear any dispute under this Agreement.
XIX. DISPUTE RESOLUTION
In the event any dispute or controversy arising out of or relating to this Agreement, the parties agree to exercise their best efforts to resolve the dispute as soon as possible. The parties shall, without delay, continue to perform their respective obligations under this Agreement which are not affected by the dispute. Mediation: In the event that the parties cannot by exercise of their best efforts resolve the dispute, they shall submit the dispute to Mediation. The parties shall, without delay, continue to perform their respective obligations under this Agreement which are not affected by the dispute. The invoking party shall give to the other party written notice of its decision to do so, including a description of the issues subject to the dispute and a proposed resolution thereof. Designated representatives of both parties shall attempt to resolve the dispute within sixty (60) days after such notice. If those designated representatives cannot resolve the dispute, the parties shall meet at a mutually agreeable location and describe the dispute and their respective proposals for resolution to responsible executives of the disputing parties, who shall act in good faith to resolve the dispute. If the dispute is not resolved within ninety (90) after such meeting, the dispute shall be submitted to binding arbitration in accordance with the Arbitration provision of this Agreement. Arbitration: Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the current Swiss Commercial Arbitration Rules. The parties shall endeavor to select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the arbitrators in turn shall select a third arbitrator. The arbitration shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the claim(s) or dispute(s) shall be made available to the other party for review and copying no later than [time period] after the notice of arbitration is served. The arbitrator(s) shall not have the authority, power, or right to alter, change, amend, modify, add, or subtract from any provision of this Agreement or to award punitive damages. The arbitrator shall have the power to issue mandatory orders and restraining orders in connection with the arbitration. The award rendered by the arbitrator shall be final and binding on the parties, and judgment may be entered thereon in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.
XX. FORCE MAJEURE
Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to unpredictable acts or events, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.
XXI. ENTIRE AGREEMENT
This Agreement and the License Schedule constitute the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written.
XXII. AMENDMENT
No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Licensor and Licensee.
XXIII. SEVERABILITY
If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any Swiss jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
XXIV. WAIVER OF CONTRACTUAL RIGHT
Waiver of any provision herein shall not be deemed a waiver of any other provision herein, nor shall waiver of any breach of this Agreement be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
XXV. NOTICES
All notices given pursuant to this Agreement shall be in writing and may be hand delivered, or shall be deemed received within thirty (30) days after mailing if sent by registered or certified mail, return receipt requested. If any notice is sent by facsimile, confirmation copies must be sent by mail or hand delivery to the specified address. Either party may from time to time change its Notice Address by written notice to the other party.