SOFTWARE LICENSE AGREEMENT FOR ACADEMIC END-USERS AT PUBLIC FUNDED ACADEMIC, EDUCATION OR RESEARCH INSTITUTIONS
(1) FUNDACIÓ CENTRE DE REGULACIÓ GENÒMICA, located at Doctor Aiguader 88, E-08003 Barcelona, SPAIN (hereinafter "CRG"); (2) EUROPEAN MOLECULAR BIOLOGY LABORATORY, located at Meyerhofstraße 1, 69117 Heidelberg, Germany (“EMBL”); and (3) VLAAMS INSTITUUT VOOR BIOTECHNOLOGIE, located at Rijvisschestraat 120, 9052 Gent, Belgium (“VIB”) (hereinafter, CRG, EMBL and VIB, jointly, the “LICENSORS”) are willing to license the Software identified below to you under the condition that you accept all of the terms contained in this software license agreement (the “Agreement”). Please read the Agreement carefully. By downloading or installing the Software (as defined below) you accept the terms of this Agreement. You expressly state your Acceptance by selecting the “Accept” button at the bottom of the Agreement. If you are not willing to be bound by all the terms of this Agreement, please select the “Reject” button at the bottom of this Agreement.
You can only enter into this Agreement if you are a public funded academic and/or education and/or research institution and/or an individual or individuals working for any of such institutions (“LICENSEE”). If you cannot be included as a LICENSEE according to the former definition, you must obtain a commercial license from the LICENSORS. In such a case, you can send your request for a commercial license to the following e-mail address at: CRG_BusinessInnovation@crg.eu.
This Agreement is entered into by and between the LICENSORS, and you as the LICENSEE (hereinafter, the LICENSORS and the LICENSEE, jointly, the “Parties”).
WHEREAS the LICENSORS are co-owners of the software called FoldX v.3.
WHEREAS CRG and VIB are co-owners of the databases LoopXDB, PepXDB, BackXDB and the modules LoopX and YasaraPG.
WHEREAS CRG is the owner of the modules PepX, ParamX and InterpretiX.
(Hereinafter, FoldX v.3, InterpretiX, LoopX, LoopXDB, PepX, PepXDB, BackXDB, ParamX and YasaraPG, jointly or separately, the “Software”).
WHEREAS the LICENSORS have the right to and desire to license the Software so that it can become available for public use and benefit.
WHEREAS the LICENSEE is a public funded academic and/or education and/or research institution or an individual working for any of such institutions.
WHEREAS the LICENSEE desires to acquire a free, non-exclusive license to use the Software for internal research purposes only;
THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties agree as follows:
1. Definitions
"Licensed Software" or the “Software” means the current version of the Software available on its website http://foldxsuite.crg.es/
Any opinion, findings, conclusions or recommendations expressed in the Licensed Software are those of the authors and do not necessarily reflect the views of the LICENSORS.
“Industrial and Intellectual Property” means all (i) registered patents, designs and trademarks, utility models, copyright and database rights; (ii) other industrial or intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or will be recognized in the future; (iii) applications for registration, extensions and renewals in relation to any such rights; and (iv) the expression of any original creation or work, in any form, either tangible or intangible, including, without limitation, software, source code, object code, technical documentation, user manuals, training materials, preparatory works, drawings, graphics, logos, documentation, as well as the results of the transformation, modification, update, upgrade, new versions, or amendments of such creations or works.
2. License
Subject to the terms and conditions of this Agreement the LICENSORS grant to the LICENSEE a free of charge, non-exclusive, non-transferable, temporary license to use the Licensed Software on computers and/or servers at their research site for the Term stipulated under Clause 12 below. The Licensed Software may contain mechanisms that will terminate the ability to use the Licensed Software at the end of the Term.
This Agreement expressly excludes the right to grant sub-licenses to any third party without the LICENSORS’s prior express written consent. The LICENSEE can use the Software only for its own internal academic research projects and shall not permit any third party to use the Software in any way whatsoever, nor use or allow the use of the Software by or on behalf of or for the benefit of any third party in any way whatsoever. The LICENSEE will neither use nor permit the use of the Software as part of a service supplied to any third party for financial reward. This Agreement also explicitly excludes the use of the Software in projects which are contracted to the LICENSEE by any third party for a fee, or in projects that are carried out in collaboration with a third party that is funding the research in whole or in part in exchange for commercial rights on the results and/or possible delay in the publication of any relevant results to the academic community in order to file a patent application prior to the publication.
The LICENSEE shall maintain reasonable security measures to safeguard the Software from access or use by any unauthorized person or entity.
This Agreement does not entitle the LICENSEE to receive from the LICENSORS any copy of the Licensed Software including but not limited to Licensed Software on disks, tapes or CD's, hard-copy documentation, technical support, telephone assistance, or enhancements, updates, or upgrades to the Licensed Software.
The LICENSEE agrees not to assign, transfer, sell, rent, lease, import, export, or grant any license on any software that includes, totally or partially, the Licensed Software, on stand-alone basis or integrated into other software.
3. Ownership
Except as expressly licensed under the terms and conditions of this Agreement, the LICENSORS shall retain the full title to any Industrial and Intellectual Property rights to the Licensed Software, and any upgrades, updates, new versions, adjustments, releases, and modifications of the Licensed Software and any other material related to the Licensed Software created by the LICENSORS.
The LICENSEE acknowledges that the Industrial and Intellectual Property of the Licensed Software developed and/or modified, updated, upgraded, adjusted, or released by the LICENSORS under this Agreement, including enhancements is proprietary to the LICENSORS.
The Licensed Software will be distributed in compiled format.
The LICENSEE undertakes that the Licensed Software shall not be used by the LICENSEE or accessed by any of its employees or other persons involved on its behalf in using the Software for any purpose other than strictly as necessary to exercise its rights under this Agreement, nor shall any such Licensed Software be disclosed to any other party by the LICENSEE.
The LICENSEE shall serve prompt notice to the LICENSORS if the LICENSEE becomes aware of any unauthorized use or exploitation of the whole or any part of the Licensed Software by any person, entity or body.
4. Consideration
In consideration that the purposes of the LICENSEE are exclusively academic, the LICENSEE shall obtain this academic license free of charge.
5. Copies
The LICENSEE shall have the right to download the Licensed Software and/or to make only one (1) copy of the Licensed Software for either internal use or for back-up purposes under this Agreement. However, the LICENSEE agrees that the copy shall contain the copyright notices and all other reasonable and appropriate proprietary markings or confidential legends that appear on the Licensed Software provided hereunder.
The LICENSEE shall be responsible for the downloading and installation of the Software.
6. Support
The LICENSORS shall have no obligation to offer support services to the LICENSEE, and nothing contained herein shall be interpreted as to require the LICENSORS to provide maintenance, installation services, debugging, bug fixes, consultation, support or end-user support of any kind. If support services are offered by the LICENSORS and such services are required by the LICENSEE, the services will be provided subject to a separate support agreement to be mutually agreed.
7. Confidentiality
The Licensed Software shall be treated as trade secrets and confidential information, and the LICENSEE agrees to use its best efforts to hold the same under confidentiality. The LICENSEE shall not disclose any of the confidential information. The LICENSEE shall protect confidential information using not less than the same care with which it treats its own confidential information, but at all times shall use at least reasonable care.
The LICENSEE's obligation for confidentiality shall not extend to any information which is, or becomes, generally available to the public, is already known to, or subsequently disclosed by third parties to the LICENSEE and is at its disposal, or is independently developed by LICENSEE without the use of the confidential information disclosed by the LICENSORS, or is required to be disclosed by law or by a Court decision or an arbitration award.
The LICENSEE shall (a) implement and maintain appropriate security measures to prevent unauthorized access to, or disclosure of, the LICENSORS’ confidential information; (b) promptly notify the LICENSORS of any unauthorized access or disclosure of the LICENSORS’ confidential information; and (c) cooperate with the LICENSORS reasonably in the investigation and remediation of any such unauthorized access or disclosure.
The LICENSEE shall not publish any information relating to the Licensed Software without the prior written consent of the LICENSORS. Such consent may be withheld or given at the sole discretion of the LICENSORS.
Except as otherwise expressly permitted in this Agreement, the LICENSEE may not authorize or permit any third party to and may not (i) modify or create any derivative works based on the Licensed Software, including customization, translation or localization; (ii) decompile, disassemble, modify, amend, translate, update, upgrade, add to, enhance, reverse engineer, or otherwise attempt to derive the source code from the Licensed Software or attempt to access the source code; (iii) redistribute, encumber, grant a security interest in, sell, rent, lease, sublicense, or otherwise transfer rights to the Licensed Software; (iv) remove or alter any trademark, service mark, trade name, logo, copyright or other proprietary notices, legends, symbols or labels in the Licensed Software; or (v) publish any results of benchmark tests run on the Licensed Software to a third party without the LICENSORS's prior written consent.
8. Representations of the LICENSORS to the LICENSEE
The LICENSORS represent to the LICENSEE that (i) the LICENSORS have the right to grant a license on the Licensed Software and to enter into this Agreement; and (ii) the LICENSORS undertake to use its reasonable efforts to cooperate with and assist the LICENSEE, at the LICENSEE's expense, in defending itself against any action based on the alleged infringement of any third party’s patent, copyright or trade secret rights resulting from or relating to the licensing or use of the Licensed Software by the LICENSEE.
9. Disclaimer of Warranties
The Licensed Software is provided on an "as is" basis, without warranty of any kind. The LICENSORS disclaim all warranties and conditions, express or implied, including, without limitation, warranties or conditions of merchantability, fitness for a particular purpose, and non-infringement of third parties' rights. The LICENSORS also disclaim the warranties that the Licensed Software is free of defects, of a satisfactory quality, virus free, accuracy, able to operate on an uninterrupted basis, or non-interfering. The entire risk as to the quality and performance of the Licensed Software is borne by the LICENSEE.
Should the Licensed Software proves to be defective in any respect, the LICENSEE and not the LICENSORS should assume the entire cost of any service and repair.
This disclaimer of warranty constitutes an essential part of this Agreement. No use of the Licensed Software is authorized hereunder except subject to the application of this disclaimer.
10. Liability
The LICENSORS shall not be liable for any liability or any damage with respect to any claim by the LICENSEE or any third party on account of, or arising from the license or use or inability to use the Licensed Software. In no event shall the LICENSORS be liable for any indirect, special, incidental or consequential damages arising out of the use of or inability to use the Licensed Software, including, without limitation, damages for loss of profits, loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based.
The LICENSORS shall not be liable to remedy any defect or default arising from or caused by any alteration, modification and/or amendment made to any part of the Licensed Software thereof by persons other than the LICENSORS, or which have been undertaken without the prior written consent of the LICENSORS.
The LICENSEE will be liable for all damages without limitation, which are caused by abuse of the Licensed Software on the LICENSORS’s server.
LICENSEE has no right to claim any compensation based on the LICENSEE's use of the Licensed Software.
11. Promotional Advertising & References
The LICENSEE may not use the names "FoldX", “FoldX v.3”, “InterpretiX”, “LoopX”, “LoopXDB”, “PepX”, “PepXDB”, "BackXDB" and/or “YasaraPG” in its promotional advertising, product literature, and other similar promotional materials to be disseminated to the public or any portion thereof.
The LICENSEE agrees not to identify the LICENSORS in any promotional advertising or other promotional materials to be disseminated to the public, or any portion thereof without the LICENSORS prior written consent. For the avoidance of doubt, scientific literature is not defined as advertising and promotional materials.
The LICENSEE agrees to mention the use of the Licensed Software on all related scientific publications, posters, grant applications, institutional reports or brochures. The LICENSORS shall not use LICENSEE's name in publicity or advertising involving this Agreement or otherwise without the LICENSEE's prior written consent which may be withheld at the LICENSEE's sole discretion.
12. Term
This Agreement and the license rights granted herein shall become effective as of the date this Agreement has been accepted by the LICENSEE by downloading or installing the Licensed Software and shall be valid for a term starting on the date of downloading or installation of the Software and ending on 31st December of the same year in which the Software has been downloaded or installed unless earlier terminated in accordance with this Clause (the “Term”). Therefore, this Agreement will automatically terminate on 31st December of each year.
The LICENSORS may terminate this Agreement at any time.
Either Party may terminate this Agreement at any time effective upon the other Party's breach of any agreement, covenant, or representation made in this Agreement, and such breach remains uncorrected twenty (20) calendar days after the written notice requesting to correct thereof.
The LICENSEE shall have the right, at any time, to terminate this Agreement without cause by written notice to the LICENSORS specifying the date of termination.
Upon termination of this Agreement, the LICENSEE shall immediately cease using the Licensed Software, remove and delete a copy of the Licensed Software from the LICENSEE’s servers, and, upon request of the LICENSORS, immediately return all confidential information and Industrial and Intellectual Property belonging to the LICENSORS and confirm to the LICENSORS that it does not have in its possession any record or copy, data or right to or of such information, data or right in any medium, form or format, tangible or intangible.
13. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the country of Spain. The Parties expressly agree to submit all their disputes in connection with the interpretation, execution, or performance of this Agreement to the exclusive jurisdiction of the Courts of the city of Barcelona (Spain).
14. General
The Parties agree that this Agreement is the complete agreement among the Parties and supersedes all proposals and previous agreements whether written or oral, and all other communications among the Parties relating to the subject matter of this Agreement. This Agreement cannot be modified without the express authorization of the LICENSORS. Failure by the LICENSORS at any time to enforce any of the provisions of this Agreement shall not constitute a waiver by the LICENSORS of such provision nor in any way affect the validity of this Agreement.
The invalidity or nullity of any specific provision does not affect the validity or nullity of the entire Agreement. The invalid or null and void provisions will be replaced by the LICENSORS by a clause which comes closest to the original intent of the invalid or null and void provision.
This Agreement shall not be construed to constitute any Party as an employee, attorney-in-fact, legal representative or business partner of the other Party. Neither Party may assign, pledge or otherwise transfer this Agreement or any right or obligations hereunder without the prior written authorization of the LICENSORS. The LICENSEE is not entitled to assign, sub-contract or sub-license to any third party any of its rights or obligations under this Agreement without the LICENSORS’ prior written consent.
IN WITNESS WHEREOF, the LICENSEE hereto has caused this Agreement to be duly executed on the date of downloading or installing the Licensed Software and by accepting this Agreement by pressing the “Accept” button.