Symverta Software License Agreement

This Software License Agreement (this “Agreement”), effective as of the date you click below, is by and between Symverta, a New York State Corporation with offices located at 1275 Main St., Buffalo NY 14209 (”Licensor”) and the user. Licensor and Licensee may be referred to herein collectively as the “Parties” or individually as a “Party.”

[WHEREAS, Licensor desires to license the Software described in Exhibit A attached hereto to Licensee; and

WHEREAS, Licensee desires to obtain a license to use the Software for its internal business purposes, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,] [T/t]he Parties agree as follows:

1. Definitions.

(a)  ”Documentation” means Licensor’s user any manuals, handbooks and installation guides relating to the Software provided in writing by Licensor to Licensee.

(b)  ”Software” means the product described in Exhibit A in object code format, including any Updates provided to Licensee pursuant to this Agreement.

(c)  ”Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Licensor generally makes available free of charge to all licensees of the Software.

2. License.

(a)  License Grant. Licensor hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 11(f)) license during the Term to: (i) use the Software solely for Licensee’s internal business purposes; and (ii) use and make a reasonable number of copies of the Documentation solely for Licensee’s internal business purposes in connection with Licensee’s use of the Software. Licensee may make copies of the Software solely for back-up, disaster recovery, and testing purposes; provided that any such copies of the Software: (x) remain Licensor’s exclusive property; (y) are subject to the terms and conditions of this Agreement; and (z) must include all copyright or other proprietary rights notices contained in the original.

(b)  Use Restrictions. Licensee shall not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; or (iv) remove any proprietary notices from the Software or the Documentation.

(c)  Delivery. Licensor shall deliver the Software electronically, on tangible media, or by other means, as [reasonably requested by Licensee/mutually agreed upon by the Parties] in writing, to Licensee within 14 days on which the Software is delivered will pass to Licensee upon Licensee’s receipt of such tangible media at Licensee’s delivery location.

(d)  [Acceptance. Licensee has 5 business days following the Delivery Date to complete testing of the Software (the “Acceptance Period”). If testing establishes that the Software does not conform to the acceptance criteria set forth in Exhibit A (the “Acceptance Criteria”), Licensee shall send written notice setting forth in reasonable detail the nature of the nonconformity (the “Nonconformance Notice”). Upon receipt of the Nonconformance Notice, Licensor, at no further expense to Licensee, shall promptly take all steps necessary to bring the Software in conformity with the Acceptance Criteria within 3 business days/a reasonable time period given the nature of the nonconformity]. Licensor shall resubmit the corrected Software to Licensee, and the procedures set forth in this Section 2(d) will repeat until the Software is accepted by Licensee by written notice to the Licensor. If a Nonconformity Notice is not sent to Licensor by the end of the Acceptance Period, the Software will be deemed accepted.]

3. [Support; ]Updates.

(a)  [Support. Licensor shall provide Licensee with the support services described on Exhibit A for one year following the Effective Date and thereafter, solely if Licensee purchases additional support services under a separately negotiated agreement.]

(b)  Updates. During the Term, Licensor shall provide Licensee, at no additional charge, all Updates, each of which constitutes Software and is subject to the terms and conditions of this Agreement.

4. Fees and Payment.

(a)  Fees. Licensee shall pay Licensor the fees (”Fees”) set forth in Exhibit A. Licensor shall invoice Licensee for all Fees in accordance with the invoicing schedule and requirements set forth in Exhibit A. Licensee shall pay all undisputed invoices prior to the Licensee’s receipt of software. Licensee shall make all payments hereunder in US dollars. A full refund will be given only if Licensee notifies Licensor within 5 business days.

(b)  Payment Disputes. Licensee may withhold from payment any and all payments of Fees that Licensee disputes in good faith, pending resolution of such dispute[, provided that Licensee: (i) timely renders all payments and amounts that are not in dispute; (ii) notifies Licensor of the dispute prior to the due date for payment, specifying in such notice the amount in dispute and the reason for the dispute; (iii) works with Licensor in good faith to promptly resolve the dispute; and (iv) promptly pays any amount determined to be payable by resolution of the dispute]. Licensor shall not fail to perform any obligation hereunder by reason of Licensee’s good faith withholding of any Fees in accordance with this Section 4(b).

(c)  Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor’s income.

5. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information[, whether orally or in written, electronic, or other form or media/in written or electronic form or media], [ that is/ and whether or not] marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

6. Intellectual Property Ownership. Licensee acknowledges that Licensor owns all right, title, and interest, including all intellectual property rights, in and to the Software and Documentation.

7. Warranties and Warranty Disclaimer.

(a)  Licensor warrants that: (i) the Software will perform [materially] as described in the specifications set out in Exhibit A [during the Term of this Agreement/for a period of [NUMBER] [days/years] following the Effective Date]; [and] (ii) at the time of delivery the Software does not contain any virus or other malicious code [that would cause the Software to become inoperable or incapable of being used in accordance with the Documentation][; and (iii) the Software does not contain any open source components].

(b)  If, during the period specified in Section 7(a), any Software fails to comply with the warranty in Section 7(a), Licensor shall, [at its sole option/at Licensee’s reasonable request], either: (i) repair or replace the Software; or (ii) refund the Fees paid for such Software, subject to Licensee’s ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the Software. The remedies set forth in this Section 7(b) are Licensee’s sole remedies and Licensor’s sole liability under the limited warranty set forth in Section 7(a).

(c)  EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

8. Indemnification.

(a)  Licensor Indemnification.

(i)  Licensor shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, costs (including [reasonable] attorneys’ fees) (”Losses”) incurred by Licensee resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that the Software or Documentation, or any use of the Software or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Licensee promptly notifies Licensor in writing of the claim, cooperates with Licensor, and allows Licensor sole authority to control the defense and settlement of such claim.

(ii)  If such a claim is made or appears possible, Licensee agrees to permit Licensor, at Licensor’s sole cost and expense, to (A) modify or replace the Software or Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for Licensee to continue use. If neither of these alternatives are possible notwithstanding Licensor’s commercially reasonably efforts, Licensor may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee, provided that Licensor shall refund or credit to Licensee all amounts paid by Licensee in respect of the Software or Documentation that Licensee cannot reasonably use as intended under this Agreement.

9. Limitations of Liability. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION 9, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED [NUMBER] TIMES THE TOTAL AMOUNTS PAID [AND AMOUNTS ACCRUED BUT NOT YET PAID] TO LICENSOR UNDER THIS AGREEMENT IN THE [NUMBER] [YEAR/MONTH] PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $[AMOUNT], WHICHEVER IS GREATER. The exclusions and limitations in this Section 9 do not apply to claims pursuant to Section 8 and Section 5. LICENSOR ALSO ACKNOWLEDGES THAT IT MAKES NO DIAGNOSIS PROGNOSIS AND TREATMENT PLAN OR RECOMMENDATIONS FOR PATEINT CARE AS THAT IS THE SOLE RESPONSIBILITY OF THE LICENSEE. LICENSOR IS A SOFTWARE COMPANY THAT SUPPLIES AN ALGORITHM FOR LICENSOR TO MAKE A PROFESSIONAL DIAGNOSIS, PROGNOSIS AND TREATMENT PLAN AS CLCINALLY INDICATED.

10. Term and Termination.

(a)  Term. The [initial] term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until Licensor or Licensee terminates the agreement upon written termination [email is acceptable] and only on the date of termination. No future or past dates will be accepted.

(b)  Termination. In addition to any other express termination right set forth in this Agreement:

(i)  [Licensee may terminate this Agreement for convenience, for any reason or no reason, the date of the termination in writing (see 10a)

(ii)  either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party [materially] breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured [30/[NUMBER]] days after the non-breaching Party provides the breaching Party with written notice of such breach; or

(iii)  either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c)  Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate, and, without limiting Licensee’s obligations under Section 5, Licensee shall cease using and delete, destroy, or return all copies of the Software and Documentation.

(d)  Survival. This Section 10(d) and Sections 1, 5, 6, 8, 9, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

11. Miscellaneous.

(a)  Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its Exhibits; (b) second, the Exhibits to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.

(b)  Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile [or email] (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.

(c)  Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(d)  Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(e)  Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of [STATE] without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of [STATE]. Any legal suit, action, or proceeding arising out of [or related to] this Agreement or the licenses granted hereunder [will/may] be instituted [exclusively] in the federal courts of the United States or the courts of the State of [STATE] in each case located in the city of [CITY] and County of [COUNTY], and each Party irrevocably submits to the [exclusive] jurisdiction of such courts in any such suit, action, or proceeding.

(f)  Assignment. Neither Party may assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party[, which consent will not be unreasonably withheld, conditioned, or delayed]; provided, however, that either Party may assign its rights or delegate its obligations, in whole or in part, without such consent and upon [NUMBER] days prior written notice to the other Party, to [(i) one [or more] of its affiliates, or (ii)] an entity that acquires all or substantially all of the business or assets of such Party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Any purported assignment, transfer, or delegation in violation of this Section will be null and void. No assignment, transfer, or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

(g)  Export Regulation. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.

(h)  Effect of Licensor Bankruptcy. All rights and licenses granted by Licensor under this Agreement are and will be deemed to be rights and licenses to “intellectual property,” and the subject matter of this agreement, including all Software and Documentation, is and will be deemed to be “embodiment[s]” of “intellectual property”, for purposes of and as such terms are used in and interpreted under Section 365(n) of the United States Bankruptcy Code (the “Code”) (11 U.S.C. § 365(n)). Licensee may exercise all rights and elections under the Code and all other applicable bankruptcy, insolvency and similar laws with respect to this Agreement and its subject matter.

(i)  Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

(j)  Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.