COLLEXIS LICENSE AGREEMENT The undersigned:
Exhibit
10.13
COLLEXIS
LICENSE AGREEMENT
The
undersigned:
Collexis,
Inc., a company duly incorporated under the US laws and having its xxxxxx xx
Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx XX 00000, hereinafter referred
to as
“Collexis”, represented by Xx. Xxxx Xxxxxxxx, its CEO.
and
The
National Institutes of Health, including all Institutes and Centers, hereinafter
referred to as “Customer”, represented by Xx. Xxxxx Xxxxx, its Contracting
Officer.
Whereas:
Collexis
has developed and is the sole and exclusive owner of the Collexis®
software;
Collexis
wishes to grant, and Customer wishes to take a non-exclusive and
non-transferable License to use the Collexis Software and Collexis has agreed
to
grant such a License subject to the terms and conditions of this
Agreement;
Have
agreed as follows:
1.
|
Definitions
|
The
definitions in the Agreement are used in accordance with the definitions as
mentioned in Article 1 of the Standard Terms and Conditions of Collexis set
out
in Appendix “Collexis Standard Terms and Conditions”.
Additionally,
in this Agreement, except where the context requires otherwise, the following
words and expressions shall have the following meaning:
Effective Date: |
the
signing date of this Agreement.
|
Agreement: |
this
Collexis License Agreement.
|
License
Period:
|
period
starting on the Effective Date and ending on the date as stated in
the
Appendix “Special Conditions and License
Fees”.
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License
Fee:
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the
license fee as defined in the Appendix “Special Conditions and License
Fees”.
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Page
1
RCDC
Project:
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Research
Condition and Disease Classification project, formerly known as the
KMDC
project.
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Warranty
Period:
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a
ninety day period starting on the date of installation of Versions
installed to the Collexis Software following the Effective Date for
the
term of this Agreement.
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2.
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License
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2.1
|
During
the License Period Collexis grants to Customer a non-exclusive and
non-transferable license to:
|
(a) | load, run, store, transmit, and execute on the System the Collexis Software; |
(b)
|
load,
run and store Fingerprints on the
System;
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(c)
|
load,
run and store the Thesaurus on the System;
and,
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(d)
|
copy
the Collexis Software for archival or back-up purposes. All archival
or
back-up copies of the Collexis Software are subject to the provisions
of
this Agreement and all titles, trademarks, copyrights and restricted
rights of Collexis shall be reproduced on such
copies.
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2.2
|
Collexis
License is for Customer Internal Use Only. Collexis has made one
noted
exception for government agencies or members of the general public
which
need to view Collexis Software for the purposes of being educated
about
ongoing efforts at CUSTOMER or how CUSTOMER is utilizing the technology.
If Customer is acting to inform or educate external parties about
its
activities, then in these instances, external parties can view and
even
use Collexis Software. An example would be in presenting this to
members
of Congressional Oversight, those members could view and use the
application - since their purposes is to be informed, not to gain
personal
benefit from the application use.
|
However,
if the intent ever becomes the use by external parties for their own (external)
benefit, then this is a violation of the license agreement.
With
the
benefit of use as the guide, external view and/or use of Collexis must be
monitored by Customer. At no time can Customer put the Collexis Search
application on the public internet for free or unmonitored use by external
parties.
2.3
|
Title
and ownership to all Intellectual Property related to the Collexis
Software, the Collexis Software Documentation, and the Collexis Software
Product Description are and shall remain at all times the property
of
Collexis. Fingerprints, Thesaurus, and Category Definitions developed
based on input from the Customer and data generated from the application
of Fingerprints, Thesaurus and Category Definitions by the Customer
are
owned by the Customer.
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Page
2
3.
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License
Fee and Term of Payment for License
Fee
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3.1
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In
partial consideration of Collexis performing its obligations under
this
Agreement, Customer shall pay the License
Fee.
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3.2
|
Collexis
shall invoice Customer in accordance with the invoice instructions
contained in Customer Purchase Order No. 467-MZ-700544 for the License
Fee. Any additional fees as specified in Appendix: Special Conditions
and
License Fees for or any additional purchase orders and/or annual
Support
and Maintenance Fees shall be invoiced in accordance with additional
customer purchase orders. Those additional customer purchase orders
shall
have the same payment terms, excepting price and payment schedule,
as
Customer Purchase Order No. 467-MZ-700544. Customer represents that
it is
exempt from sales and/or tax liabilities as a result of entering
into this
Agreement, pursuant to tax exemption certificate no.
3000500-4.
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4.
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Collexis’s
Obligations
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4.1
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Collexis
represents and warrants that:
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(a)
|
the
entering into this Agreement will not result in a breach or constitute
a
default under any of the terms and provisions of any agreement, whether
written or oral, to which it is a
party;
|
(b)
|
it
has the right and full corporate power to enter into this
Agreement;
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(c)
|
not
warrant non-infringement of any published Intellectual Property rights
of
third parties beyond those terms and conditions found in the “Collexis
Standard Terms and Conditions”, sections
7.7-7.8;
|
(d)
|
it
has not, as at the date of this Agreement, granted any rights the
exercise
of which would derogate from or be inconsistent with the rights granted
to
Customer under this Agreement.
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4.2
|
Collexis
has delivered the Collexis Software to the Customer and will provide
Updates during the License Period in accordance with this Agreement
and
the Support and Maintenance
Agreement.
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5.
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Customer’s
Obligations
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5.1
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Customer
will:
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(a)
|
not
attempt to reverse engineer or otherwise render the Collexis Software
into
human readable form in order to understand the Collexis Software
structure
or details in any way;
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(b)
|
not
delete or amend any copyright or other Intellectual Property notices
displayed by the Collexis Software or included in the
Documentation;
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(c)
|
make
regular backups of the Collexis Software and the data generated by
the
Collexis Software; Collexis will not be held responsible for the
loss,
damage of loss or reproduction of data unless directly
responsible;
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(d)
|
Customer
will enter into a Support & Maintenance Agreement for the Collexis
Software with Collexis.
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Page
3
5.2
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For
each installation covered by this Agreement a unique Collexis Software
key
provided by Collexis is required. Collexis will provide the Collexis
Software key by email or telephone within 24 hours after receiving
a
complete registration form electronically provided by
Collexis.
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5.3
|
The
Customer is not required to make Fingerprints accessible to Collexis
as a
term of this license.
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5.4
|
The
parties acknowledge and agree that Customer, as an agency of the
United
States, assumes liability under this agreement only to the extent
provided
under the Federal Tort Claims Act, 28 U.S.C. 2671 et seq. for and
in
connection with any act or omission or other claim arising under
or
relating to this Agreement, including, without limitation, for and
in
connection with any breach of the same or that may otherwise arise
from
Customer’s unauthorized modification, adaptation, misuse, infringement or
failure to properly maintain the Collexis Software or other Software
used
in connection with the System.
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6.
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Warranty
and Liability
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6.1
|
While
Collexis does not warrant that the operation of the Collexis Software
during the term of this Agreement will be uninterrupted or Error-free,
Collexis warrants that during the Warranty Period the Collexis Software
as
delivered to Customer, conforms in all material respects to the Product
Description.
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6.2
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During
the Warranty Period, Collexis will use commercially reasonable efforts
to
correct, at no charge to Client, any nonconformity, including, without
limitation, performing Support Services in accordance with the Support
& Maintenance Agreement.
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6.3
|
The
warranties stated in this Article shall in no event apply in the
event of
any misuse (including, without limitation, any use of the Collexis
Software outside of the operating environment approved in writing
by
Collexis); accident; unauthorized modification; an unsuitable physical
or
operating environment; an operation in other than the approved operating
environment; improper maintenance; a failure caused by a product
for which
Collexis is not responsible; or with respect to repair of damaged
or lost
data. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, CUSTOMER HEREBY
ACKNOWLEDGES AND AGREES THAT THE SYSTEM IS BEING PROVIDED TO CUSTOMER,
“AS
IS, WITH ALL FAULTS,” AND THAT COLLEXIS MAKES NO OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, AS TO THE USEFULNESS, ACCURACY,
COMPLETENESS, FEASIBILITY, RELIABILITY OR EFFECTIVENESS OF THE SYSTEM,
OR
THAT THE OPERATION OF THE SYSTEM WILL BE UNINTERRUPTED OR FREE FROM
ANY
NONCONFORMITY OR OTHER ERRORS. WITHOUT LIMITING THE FOREGOING, COLLEXIS
HEREBY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A
PARTICULAR PURPOSE IN CONNECTION WITH THE COLLEXIS
SOFTWARE.
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4
6.4
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Customer
acknowledges that it is the responsibility of Customer to implement
its
copy of the Collexis Software together with any other hardware and
software selected by Customer in combination to meet its
requirements.
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7.
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Audit
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7.1
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The
Collexis Software can be provided with automated counters that can
be
remotely read, via a data link, by employees of Collexis. These counters
provide insight into the frequency of and the manner in which the
Collexis
Software is used. By signing this Agreement Customer gives permission
to
Collexis to remotely read these counters upon fourteen day written
notice
to Customer or during any Support and Maintenance activities undertaken
for the purpose of providing support to
Customer.
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7.2
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Customer
will grant Collexis the right to, within twenty days of receipt of
a
request from Collexis, review the terms of Customer’s use of the Collexis
Software including disclosure of the location(s) of use of the Collexis
Software. Collexis agrees that it will not use the information gained
through the authority of this section to pursue independent license
agreements with such locations.
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8.
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Duration
and Termination
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8.1
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Subject
to its other provisions, this Agreement is valid during the License
Period
or until this Agreement is otherwise earlier terminated as provided
herein.
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8.2
|
After
the License Period has lapsed or in the event of termination of this
Agreement, Customer shall promptly return to Collexis, of if this
is
practicable, promptly destroy all Collexis Software and Documentation.
The
foregoing obligation applies to any and all Collexis Software but
does not
apply to the extent that it is inconsistent with Federal law, regulation
or policy, including those pertaining to document retention.
Notwithstanding, Customer shall not use Collexis Software after the
termination of this Agreement. The obligation to return or promptly
destroy does not apply to Fingerprints, the Thesaurus, Category
Definitions, Bespoke Software, Third Party Software (except in the
case
where any such license relating thereto would require otherwise)
or other
software or products developed by the
Customer.
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8.3
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This
Agreement shall be subject to termination upon the occurrence of
any of
the following events:
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(a)
|
If
either Customer or Collexis defaults on any of its material obligations
under this Agreement, the non-defaulting Party shall have the right,
exercisable in its sole discretion, to terminate this Agreement by
written
notice describing with reasonable specificity the nature of the default
and requesting that it be cured,
or,
|
(b)
|
either
Customer or Collexis may terminate this Agreement (i) with fourteen
days
written notice if any law, rule or regulation enacted subsequent
to the
Effective Date prohibits such Party from lawfully fulfilling its
obligations herein; or (ii) immediate upon any material breach by
either
Customer or Collexis of the obligations described under 2.2, 4.1,
or
5.1.
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Page
5
In
the event that, after implementation of the License under this Agreement,
Customer decides to terminate this Agreement and implement Software
from a
vendor other than Collexis, Customer agrees that it will cooperate
with
Customer and other vendor to assist Customer in a smooth transition
from
the Collexis Software to the other vendor’s software subject to Collexis’
standard time and materials hourly rates in effect at that time.
Customer
agrees that during any such transition it will abide by the
responsibilities it has assumed under this Agreement. However, in
no event
shall Collexis be required to provide any Releases, Updates or Versions
following any such termination thereafter or other Support to Customer
under the Support and Maintenance Agreement past one (1) year from
the
date of such termination.
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9.
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Publicity
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9.1
|
Collexis
may issue press releases that indicate that Customer is a client.
Collexis
can also list Customer as a client on marketing materials and publications
on its website. Collexis may not use the NIH logo or any subordinate
NIH
logos in their materials.
|
Collexis
will include the following in any and all press releases, web pages, marketing
materials or other means when publicizing information in reference to
NIH;
“National
Institutes of Health (NIH) is not considered a supporter or partner of Collexis.
Reference to NIH in the above shall not be construed as a Government endorsement
nor does it obligate NIH to a position on or about the Collexis
Software.”
In
the
event Collexis wishes to modify the above, Collexis will submit and obtain
approval from NIH for such modifications.
10.
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General
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10.1
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If
any part, term, or provision of this Agreement is held to be illegal
or
unenforceable, the validity or enforceability of the remainder of
this
Agreement shall not be affected.
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10.2
|
This
Agreement, including each Exhibit and Schedule and the “Collexis Standard
Terms and Conditions”, the “Collexis Support & Maintenance Agreement”
and Purchase Order MZ-700544, only to the extent whereby the Purchase
Order defines specific payment amounts, payment terms and termination
provisions, is incorporated herein by reference and set forth the
entire
Agreement between the parties herein with respect to the subject
matter
hereof, and supersedes any and all prior proposals, agreements and
representations pertaining to such subject matter between them, whether
written or oral. Notwithstanding the forgoing, that certain License
Agreement entered into by and between Collexis BV and Customer on
or about
August 2002 and December 2003, and all agreements thereto are hereby
terminated as of the date hereof, subject, however, to the survival
of any
and all covenants of the parties thereunder that are intended by
the
nature thereof to survive any such termination (e.g.,
payment obligations with respect to services rendered and products
ordered
thereunder and duties and obligations relating to intellectual property
rights).
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Page
6
10.3
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This
Agreement may not be amended, nor any provision waived, except by
a
writing signed by both parties.
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10.4
|
This
Agreement may be executed in any number of counterparts, each of
which
when so executed and delivered shall be deemed an original (even
if
facsimile counterpart), and such counterparts together shall constitute
one and the same instrument.
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Page
7
IN
WITNESS of which the parties have caused this Agreement to be executed in
duplicate by their duly authorized representatives.
Date:
6/13/07
Place: Atlanta, Georgia | Place: Washington, DC | ||
Collexis, Inc. | National Institutes of Health | ||
/s/ Xxxx Xxxxxxxx | /s/ Xxxxx X. Xxxxx | ||
Xxxx Xxxxxxxx | By: Xxxxx X. Xxxxx | ||
Chief Executive Officer | Its: Contracting Officer, NLM 6/22/07 |
Page
8
Appendix:
Special Conditions and License Fees
Product
Description
Collexis®
Software limited to: All functionality as described in the document “Collexis®
Product Overview”, attached hereto.
Number
of
Collexis® Fingerprints
The
License Fee for the above specified Collexis® Software is valid for the
generation and use of an unlimited number of Fingerprints on the
System.
Duration
See
“Fees
and Payment Conditions” below.
Fees
and
Payment Conditions
The
License will be valid for unlimited fingerprinting throughout the License Period
for Customer. Purchase price was paid under an earlier agreement. The
License Period shall commence on the Effective Date and shall continue so long
as Customer pays Support and Maintenance Fees as outlined herein. Support
& Maintenance Fees to procure support and maintenance services as detailed
in the “Collexis Support & Maintenance Agreement”, including but not limited
to annual Updates and continue the Agreement will be initially $252,000 for
the
first year. (20% or original license). The support and maintenance fees can
be
increased annually at a mutually agreed amount. The Support & Maintenance
Agreement shall be renewable annually by mutual agreement following the initial
five year term from the Effective Date.
Page
9
COLLEXIS
STANDARD TERMS AND CONDITIONS
1.
|
Definitions
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Agreement:
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Any
agreement between Collexis and Customer including these Terms and
Conditions.
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Bespoke
Software:
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Software
in object code developed by Collexis specifically for Customer
based on
functional specifications drafted by Collexis or drafted by the
Customer
and accepted by Collexis.
|
Collexis:
|
Collexis,
Inc., with its office at Five Concourse Parkway, Suite 3000, Xxxxxxx,
XX
00000, XXX.
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Fingerprint:
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The
result of abstracting a text item with the Collexis Software by
Customer.
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Collexis®
Software:
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The
software in object code developed by Collexis, including, without
limitation, and Updates, Versions and Releases issued by Collexis
from
time to time.
|
Category
Definition:
|
List
of weighted concepts developed by Customer to categorize
Fingerprints.
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Customer:
|
The
company or organization that enters into an Agreement with
Collexis.
|
Documentation:
|
The
user documentation to the Collexis Software and any other Collexis
literature or date supplied with the same purpose by
Collexis.
|
Equipment:
|
A
product or products in the area of computer
hardware.
|
Error:
|
Any
reproducible failure of the Collexis Software to conform, in all
material
respects, to its specifications set out in the Product Description
or in
specifications expressly agreed between the
parties.
|
First
Line Support:
|
The
provision of limited assistance to the Support employees of Customer
by
telephone or in writing, including electronic mail, with respect
to the
installation and use of the Collexis
Software.
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Page
1
Intellectual
Property:
|
Any
date including materials, notes, designs, models, technical data,
ideas,
research reports, and documentation; trade-secrets; know-how; products,
processes, inventions, improvements and discoveries patentable
or
unpatentable; copyrights (registered or unregistered); and any
other
intellectual property rights, which are conceived and/or reduced
to
practice, in any country of the world relating to Product; “Intellectual
Property” further includes any trademarks (registered or unregistered),
service marks, trade names or other, similar designations of origin
used
in connection with Products and Collexis
Software.
|
Order
Confirmation:
|
The
written confirmation of an order by Collexis that specifies in
detail
which Collexis Products the order
concerns.
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Product
Description:
|
The
product description made available by Collexis in which the Collexis®
Software is described.
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Products:
|
Collexis
Equipment and Collexis Software.
|
Release:
|
Collexis
Software and Documentation in which corrections to one or more
Errors may
be included and which is extended with functionality within the
existing
modules. New Releases are registered by means of a decimal figure
(for
example 1.2a).
|
Second
Line Support:
|
(a)
the investigation and correction of or provision of Workarounds
for Errors
in the Collexis Software and
Documentation;
|
(b)
the provision of Updates, Releases and Versions including instructions
for
the implementation of such modifications. New modules in Versions
are not
included;
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(c)
the updating of Collexis Software to the latest Update, Release
or
Version.
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Software:
|
Any
software, including the Bespoke Software and Third Party Software,
other
than the Collexis® Software.
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Support
Employees:
|
Sufficiently
trained employees of Customer serving as the contact personnel
for
Collexis with respect to First Line Support and Second Line
Support.
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System:
|
The
central processing unit and other hardware and operating software
located
at Customer or, if a hosting agreement is applicable, at a hosting
party,
on which the software and Collexis Software is to be run, including
any
replacement computer system Customer is permitted to use pursuant
to the
terms of this Agreement or the hosting party is permitted to use
pursuant
to the terms of a hosting
agreement.
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2
System
Incident:
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An
Error identified by Customer.
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System
Incident Report:
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A
standard form provided by Collexis for the registration of System
Incidents by Customer.
|
Terms
and Conditions:
|
These
standard terms and conditions of
Collexis.
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Thesaurus:
|
A
structured dataset reflecting the domain specific knowledge used
by the
Collexis Software for generating
Fingerprints.
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Third
Party Software:
|
The
software in object code developed by third parties, which has been
embedded in or has been directly used in association with the Collexis
Software.
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Update:
|
Collexis
Software and Documentation in which corrections to one or more
Errors are
included. New Updates are registered by means of a letter (for
example
1.1b).
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Version:
|
Collexis
Software and Documentation in which corrections to one or more
Errors may
be included and which may be extended with new functionality within
existing modules may be extended and new modules are included.
New
Versions are registered by means of a new figure (for example 2.0a).
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Workaround:
|
Bypass
of a recognized problem in a System. A Workaround is typically
considered
a temporary fix if some functionality of the Collexis Software
is impaired
after the Workaround is applied.
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2.
|
General
Provisions
|
2.1
|
These
Terms and Conditions shall apply to all Agreements and Order Confirmations
under which Collexis supplies to Customer products and/or services
of any
nature. No deviation from these Terms and Conditions shall be valid
unless
expressly agreed in writing by both
parties.
|
2.2
|
Any
applicability of terms and conditions of Customer is rejected,
unless
these terms and conditions are accepted in writing by
Collexis.
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2.3
|
In
the event of nullity or annulment of any provision of these Terms
and
Conditions, the other provisions hereof shall remain in full force
and
effect and Collexis and Customer shall consult together in order
to agree
on new provisions to replace the provisions that are null or, as
the case
may be, annulled, duly observing as much as possible the object
and
purport of the provision that is null or
annulled.
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3
3.
|
Terms
of Payment
|
3.1
|
Collexis
and Customer may agree to use pricing and payment terms contained
in a
purchase order supplied by Customer. Collexis will be deemed to
accept the
pricing and payment terms contained in such purchase order upon
creation
of the Order Confirmation based on such Purchase
Order.
|
3.2
|
If
any delivery, installation or the completion of any service is
delayed by
Customer, any associated costs will be paid by Customer according
to the
terms of an additional purchase order negotiated by the parties
for the
agreed upon amount thereof. Collexis, at its sole discretion, has
the
right to halt any installation or completion of any service so
delayed by
Customer upon written notice to Customer, until an additional purchase
order and Order Confirmation for such agreed upon costs are paid
by
Customer. All deadlines, due dates, or project timelines imposed
by
Customer upon Collexis shall be shifted or expanded to accommodate
the
time required to negotiate an additional Purchase Order. The Customer
is
not obligated to pay such agreed upon costs unless a purchase order
is
issued that reflects the agreed upon costs. Collexis is not obligated
to
continue any installation or provision of any service so delayed
by
Customer unless Customer agrees to pay such agreed upon
costs.
|
3.3
|
If
Customer fails to pay timely an outstanding debt, Collexis can
refuse to
fulfill its obligations and can eventually suspend its guarantee,
provision of services and support
obligations.
|
4.
|
Retention
of Title and Rights
|
4.1
|
Title
to all Equipment supplied to Customer shall continue to be held
by
Collexis until all amounts payable by Customer with respect to
the
Equipment supplied or to be supplied under the Agreement, or the
work done
or to be done there under, have been paid under the terms agreed
upon by
Collexis and Customer.
|
4.2
|
No
rights shall be granted or, as the case arises, transferred to
Customer
except on condition that the agreed considerations are paid under
the
terms agreed upon by Collexis and
Customer.
|
5.
|
Specifications
|
5.1
|
Provided
Collexis notifies Customer in advance, Collexis may deliver replacement
or
altered Equipment, Collexis Software, or Bespoke Software instead
of the
Equipment, Collexis Software, or Bespoke Software ordered by Customer,
as
long as the operation and capacity are not substantially different
from
the specifications of that originally
ordered.
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Page
4
5.2
|
If
data transmission rates concerning the Equipment are mentioned,
they are
always subject to the limitations that can be placed by an authorized
governmental or other organization on the use of telecommunication
lines
or with respect to the availability of telecommunication equipment
and
lines.
|
6.
|
Care
and use of the Equipment and Collexis
Software
|
6.1
|
Customer
will use the Equipment and Collexis Software in the manner described
in
the Product Description. Customer will supervise the correct use
of the
Equipment and Collexis Software (including any routine maintenance
that
will be carried out by Customer and any amendments or additions,
made by
Customer and authorized by Collexis) in such a way that agrees
with the
reasonable instructions that are or will be
given.
|
6.2
|
Unless
agreed otherwise in writing between the parties, Customer will
provide
backup facilities, restart procedures, and checks on accuracy and
security
of data.
|
7.
|
Intellectual
Property Rights
|
7.1
|
All
intellectual property, including, without limitation, the Collexis
Software, Documentation, and Equipment, and rights thereto, provided
by
Collexis under the Agreement, other than the Fingerprints, Category
Definitions, Thesaurus and Bespoke Software, is the sole property
of
Collexis or its licensors. Customer shall acquire only such licenses,
rights of use and powers as are explicitly granted
hereunder.
|
7.2
|
Customer
is aware that the Collexis Software and Equipment provided contain
confidential information and trade secrets of Collexis or Collexis
licensors. Without prejudice to the provisions of Article 9, Customer
undertakes to keep such Collexis Software and Equipment secret
and not
make third parties acquainted with them or grant their use to the
same,
and to use them only for the purpose for which they were placed
at the
Customer’s disposal, to the extent possible under Federal law, regulation
and policy. The expression ‘third parties’ includes any such persons
working in Customer’s organization who do not necessarily have to use the
Collexis Software or Equipment.
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7.3
|
Customer
will not be permitted to remove from or change in the Collexis
Software or
Equipment any designation, if incorporated therein, concerning
copyrights,
trademarks, trade names or other Intellectual Property rights,
including
any indications concerning the confidential nature and secrecy
of the
Collexis Software.
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5
7.4
|
Collexis
will be permitted to take technical measures to protect the Collexis
Software providing such measures are disclosed to and accepted
by the
Customer. If Collexis has secured the Collexis Software by means
of some
technical protection and obtained Customer approval, Customer
will not be
permitted to remove or evade such protection. Customer will not
agree to
measures that unnecessarily give Collexis insight into Customer’s
operations and activities. If the protective measures result
in Customer
being unable to make a back-up copy of the Collexis Software,
Collexis
shall provide Customer with a back-up copy of the Collexis Software
at the
latter’s request.
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7.5
|
Except
where Collexis provides Customer with a back-up copy of the Software,
Customer shall be entitled to keep, which must be understood to
include
‘to make’, one single back-up copy of the Software. For the purposes
hereof a back-up copy is a material object on which the Software
is
recorded for the sole purpose of replacing the original copy of
the
Software in the event of involuntary loss of possession or damage.
The
back-up copy must be an identical copy and always be labeled with
the same
labels, and bear the same indications, as the
original.
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7.6
|
Collexis
shall indemnify Customer against any action at U.S. law based on
the
allegation that any Collexis Software developed by Collexis itself
infringe(s) any intellectual or industrial property right provided
the
Customer: (a) gives Collexis prompt written notice of such claim;
(b)
gives permission to Collexis to manage the defense or settlement
of such
claim, in consultation with Customer; and (c) reasonably cooperates
at the
sole cost and expense of Collexis with Collexis in the resolution
of such
claim.
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7.7
|
Customer
agrees that if the use of the Collexis Software becomes, or is
reasonably
likely to become the subject of a patent or copyright infringement
claim,
it may, as its sole recourse and remedy request Collexis, at Collexis’
sole option, cost and expense to: (a) promptly procure for the
Customer
the right to continue to use the Collexis Software; (b) replace
the
Collexis Software with an alternative that functions substantially
the
same; or (c) modify the Collexis Software so that it becomes
non-infringing, but in a manner which causes it to functional
substantially the same prior to modification. If Collexis determines
that
none of the foregoing alternatives is reasonably available, then
Collexis
may terminate this Agreement and refund to Customer a pro-rata
portion of
the Support & Maintenance Fees as would be attributable to that part
of the calendar month for which no further Support is provided
by
Collexis.
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8.
|
Limitation
of Liability
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8.1
|
Customer
shall report any alleged breach or damage to Collexis in writing
within a
reasonable time period which shall not exceed 60 days after Customer
has
knowledge of such breach or damage so that Collexis may have an
opportunity to cure the same. UNDER NO CIRCUMSTANCES SHALL COLLEXIS’ TOTAL
LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE
TOTAL
AMOUNT PAID BY CUSTOMER TO COLLEXIS FOR SUPPORT AND MAINTENANCE
FEE IN THE
TWELVE MONTHS PROCEEDING SUCH ALLEGED BREACH OR
DAMAGE.
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9.
|
Confidential
information and Article prohibiting takeovers of
staff
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9.1
|
Except
as specifically set forth in the Agreement and these Terms and
Conditions,
each party agrees not to use confidential information from the
other party
or to make available to a third party, unless it is impossible
not to do
so when conforming to these terms and conditions or under Federal
law,
regulation or policy. Collexis® Software is considered by Collexis to be
confidential information of Collexis and is recognized as such
by
Customer. Data input by Customer will be treated as confidential
by
Collexis and remains the property of the Customer. If Customer
so desires,
Collexis is prepared to sign a mutually acceptable declaration
of
confidentiality from Customer.
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9.2
|
Neither
party shall, for the duration of the Agreement and for six months
after
termination thereof, take on any employees of the other party who
were
involved in the execution of the Agreement, or have such employees
work
for the same either directly or indirectly, unless after proper
businesslike consultation with the other party has taken
place.
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10.
|
Termination
|
10.1
|
Collexis
and Customer may agree to use termination terms contained in a
purchase
order supplied by Customer. Collexis will be deemed to accept the
termination provisions contained in such purchase order upon creation
of
the Order Confirmation based on such purchase
order.
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11.
|
Force
Majeure
|
11.1
|
Neither
party shall be bound to meet any obligation if prevented from doing
so as
a consequence of force majeure. The expression ‘force majeure’ shall
include, but not be limited, to the outbreak of war or diseases,
strikes,
natural disasters, or government regulation preventing contractor
performance.
|
11.2
|
If
a situation of force majeure has lasted for more than ninety days,
the
parties shall be entitled to terminate the Agreement by rescinding
it in
writing. In that case any performance which has already taken place
pursuant to the Agreement shall be settled proportionately without
either
party being thereafter indebted to the other in any other
amount.
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Page
7
12.
|
General
|
12.1
|
Collexis
may at all time transfer its rights resulting from the Agreement
with
Customer providing novation procedures specified in Federal Acquisition
Regulations 41.12 are followed. Customer may only transfer its
rights
resulting from the Agreement after written approval of Collexis.
Such
consent will not be delayed or withheld from Customer on unreasonable
grounds.
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12.2
|
All
notifications within the context of the Agreement from the one
party to
the other party will be addressed to the respective addresses
of the
parties as recorded on the Order Confirmation or as supplied
by the one
party to the other.
|
12.3
|
The
Agreements shall be construed, and the rights and liabilities
of the
parties hereto determined, in accordance with applicable U.S.
Federal
law.
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8