ListVUe™ EVALUATION LICENSE
THIS EVALUATION LICENSE AGREEMENT (“Agreement”) is effective as of (“Effective Date”), by and between Vanderbilt University, a Tennessee non-profit corporation having offices at 1207 17th Avenue South, Suite 105, Nashville, Tennessee 37212 (“Vanderbilt”), and you ("Evaluator").
WHEREAS, Vanderbilt desires to license to Evaluator certain Software (defined below) for purposes of testing and evaluating the Software;
WHEREAS, Evaluator desires to acquire from Vanderbilt a temporary, non-exclusive, non-transferable, royalty-free license for the use of the Software for testing purposes;
NOW, THEREFORE, in consideration of the mutual premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions.
1.1 “Confidential Information” is defined to include the documentation and functionality of the Software.
1.2 “Software” is defined as the ListVUe™ software licensed by Vanderbilt to Evaluator as set forth herein.
1.3 “Hardware” is defined as the computer workstations, peripherals, modems and other equipment for operating the Software. Each computer workstation that runs the Software must run a recent version of Microsoft Internet Explorer and must have cookies enabled.
2.Obligations of the Parties.
2.1 Vanderbilt. During the term of this Agreement and in accordance with the terms set forth herein, Vanderbilt shall license the Software and documentation and designate persons whom the Evaluator can contact with questions or problems relating to the Software evaluation.
2.2 Evaluator. Evaluator agrees accept all of the terms contained in this agreement. Evaluator shall provide all of the Hardware necessary to operate the Software.
3. Software License.
3.1 Subject to the terms and conditions of this Agreement, Vanderbilt hereby grants to Evaluator, and Evaluator hereby accepts, a limited, non-transferable, non-exclusive right and license to use the Software and the accompanying documentation solely for the purpose of evaluating and testing the Software. The Software provided hereunder and all copies thereof are proprietary to Vanderbilt and title thereto remains in Vanderbilt. Other than the rights in and to the Software granted to Evaluator hereunder, Evaluator acquires no rights in the Software (or in any intellectual property owned by Vanderbilt) including patents, copyrights, trademarks, and trade secrets, if any, embodied therein. Evaluator acknowledges that Vanderbilt claims that the Software contains valuable proprietary information and trade secrets developed or acquired by Vanderbilt. In accordance with Section 7 hereunder, Evaluator shall secure and protect the Software in a manner consistent with the maintenance of Vanderbilt’s rights therein and to take reasonable action by instruction or agreement with its employees who are or might be permitted access to the Software to satisfy its obligations hereunder.
3.2 Vanderbilt has not provided Evaluator with a copy of, and Evaluator acquires no rights of any kind with respect to, the Software source code. Evaluator shall not do or attempt to do any of the following: (i) modify, adapt, decompile, disassemble or reverse engineer the Software or any part thereof (or otherwise attempt to create or divulge any related source code); (ii) create derivative works based on the Software; (iii) make copies of the Software; (iv) use the Software in connection with diagnosing or treating a patient; (v) sublicense the Software to any third party; (vi) use the Software at any location other than at the designated location set forth below the Evaluator’s signature; or (vii) make any modifications to or adaptations of the Software or merge the Software into any other programs or other materials; or (viii)subvert or bypass ListVUe™ user authorization procedures.
3.3 With respect to any idea, know-how, concept, technique, invention, discovery or improvement, whether or not patentable, made by the Evaluator during the term of this Agreement and related to the Software, the Evaluator agrees to grant and hereby grants to Vanderbilt an exclusive, irrevocable, unrestricted, worldwide, and royalty free license to include the foregoing in the Software.
4. Acknowledgement. THE PARTIES ACKNOWLEDGE THAT: THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY; ANY DOCUMENTATION MAY CONTAIN ERRORS OR BE INCOMPLETE; AND THE EVALUATOR SHOULD TAKE EXTRA CARE IN PRESERVING ITS DATA IN ORDER TO AVOID ANY LOSS OF DATA AS A RESULT OF USING THE SOFTWARE.
5. Vanderbilt’s Warranties. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, VANDERBILT DOES NOT MAKE AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION IS IN ADDITION TO, AND NOT IN DEROGATION OF, THE PROVISIONS OF SECTION 4.
6. Limitations of Liability. Vanderbilt shall have no liability for consequential, exemplary, indirect, special or incidental damages, whether based on contract, tort or any other legal theory, arising out of or related to this Agreement or the transactions contemplated herein, nor shall Vanderbilt be liable for any loss of data or lost profits of Evaluator, even if Vanderbilt is apprised of the likelihood of such damages occurring. Vanderbilt’s total liability under this Agreement for any reason shall not exceed $100.00. Evaluator acknowledges that licensing the Software for evaluation at no charge under this Agreement reflects the allocation of risks expressed by (but not limited to) the above limitations of liability. Modification of such allocation would affect the fees charged by Vanderbilt, and in consideration of not charging any fees, Evaluator agrees to such allocation of risks.
7. Confidentiality.
7.1 Evaluator may only use the Confidential Information solely for the purpose of performing its evaluation under this Agreement.
7.2 Evaluator shall not disclose the Software to any independent contractor or subcontractor. The Evaluator shall promptly notify Vanderbilt in the event that the Evaluator learns of an unauthorized release of Confidential Information.
7.3 Upon the termination or expiration of the Agreement, Evaluator shall (i) immediately cease to use the Confidential Information; (ii) return to Vanderbilt the Confidential Information and all notes, studies, reports, memoranda, and other documents that contain or reflect the Confidential Information within ten (10) days of the termination; and (iii) upon request, certify in writing to Vanderbilt that Evaluator has complied with Evaluator’s obligations set forth in this Section 7.
7.4 The parties acknowledge that monetary remedies may be inadequate to protect rights in Confidential Information and that, in addition to legal remedies otherwise available, injunctive relief is an appropriate judicial remedy to protect such rights.
7.5 Evaluator agrees to provide reasonable assistance and cooperation upon the reasonable request of Vanderbilt in connection with any litigation against third parties to protect the Software or the Confidential Information, provided that Vanderbilt shall reimburse the Evaluator for its reasonable out-of-pocket expenses.
8. Assignment. Evaluator shall not assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of Vanderbilt, which consent shall not be unreasonably withheld. Vanderbilt may assign its rights or obligations hereunder without the consent of or notice to Evaluator. This Agreement shall inure to the benefit of and bind successors and permitted assigns of Vanderbilt and Evaluator.
9. Termination and Survival.
9.1 The license granted hereunder is for a term of no longer than one day, commencing with the issuance of said Evaluation License login credentials and terminating at midnight upon the Effective Date. Additionally, it is hereby acknowledged that the Evaluation License may be terminated by Vanderbilt at any time during the term.
9.2 Upon termination of this Agreement, the license granted to Evaluator shall immediately terminate and Evaluator shall: (i) promptly return to Vanderbilt all copies of the Software and all documentation associated therewith; (ii) immediately discontinue any and all use of the Software; (iii) immediately erase, remove or destroy from any and all equipment all electronic or machine-readable copies of the Software; (iv) upon request, certify in writing to Vanderbilt that Evaluator has completed the foregoing and that no copies of the Software exist in Evaluator’s possession or control; and (v) comply with its obligations set forth in Section 7.3. Termination of this Agreement shall not limit either party from pursuing other remedies available to it (to the extent such other remedies are not expressly limited hereunder) including injunctive relief.
9.3 Any provision of this Agreement related to confidentiality or publicity or which by its terms provides for survival shall survive the termination of this Agreement.
10. Governing Law. This Agreement and performance hereunder shall be governed and construed in accordance with the laws of the United States and of the State of Tennessee, without giving effect to provisions thereof regarding conflict of laws. Each Party hereto hereby submits to the exclusive jurisdiction of the United States District Court for the Middle District of Tennessee and of any Tennessee state court sitting in Nashville for the purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. Each party hereto irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
11. Severability. All agreements, clauses and covenants contained herein are severable, and in the event any of them shall be held to be unconstitutional, invalid, illegal, or unenforceable, the remainder of this Agreement shall be interpreted as if such unconstitutional, invalid, illegal or unenforceable agreements, clauses or covenants were not contained herein.
12. Waiver; Modification. The failure by either party to exercise any right provided hereunder shall not be deemed a waiver of such right. This Agreement may be amended, modified or supplemented only by a writing signed by the parties to this Agreement. Such amendments, modifications or supplements shall be deemed as much a part of this Agreement as if so incorporated herein.
13. Integration. The parties hereto acknowledge that they have read this Agreement in its entirety and understand and agree to be bound by all of its terms and conditions, and further agree that this Agreement and any exhibits or schedules hereto constitute a complete and exclusive statement of the understanding between the parties with respect to the subject matter hereof which supersede any and all other communications between the parties, whether written or oral. Any prior agreements, promises, negotiations or representations related to the subject matter hereof not expressly set forth in this Agreement, or any exhibits or schedules hereto, are of no force and effect.
14. Independent Parties. Nothing contained in this Agreement shall be construed to create a joint venture or partnership between the parties.
15. Force Majeure. Neither party hereto shall be liable for any failure or delay in performance of its obligations hereunder by reason of any event or circumstance beyond its reasonable control, including without limitation acts of God, war, terrorism, riot, strike, labor disturbance, fire, explosion, flood, or shortage or failure of suppliers.
16. Authorization of Agreement. Both parties represent and warrant that the execution and delivery of this Agreement and consummation of the transaction contemplated by this Agreement have been duly and validly authorized by all necessary company action, that the person signing this Agreement on its behalf is duly authorized to do so, and that this Agreement constitutes a valid and legally binding obligation on such party enforceable according to its terms.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their authorized representatives as of the date first set forth above.