Process and Equipment Monitoring (PEM) Toolbox
NON-EXCLUSIVE END-USER LICENSE AGREEMENT
This non-exclusive end-user Agreement (“Agreement”) is entered into between UNIVERSITY OF TENNESSEE RESEARCH FOUNDATION, a not-for-profit corporation, organized and existing under the laws of the state of Tennessee and having a place of business at 600 Henley Street, UT Conference Center Suite 211, Knoxville, Tennessee 37996 (“UTRF”), and the institution that registers to use the Software (“Licensee”). Prior to such registration in accordance with this Agreement, the Licensee shall have no rights or license in connection with the Software (defined below) or this Agreement. UTRF and Licensee are referred to individually as “Party” and collectively as “Parties”.
WHEREAS, PEM: Process and Equipment Monitoring Toolbox is a software suite (the “Software”, as further defined hereinafter) that was developed at UT (defined below) by Drs. Wes Hines, Jamie Coble, Dustin Garvey and Michael Sharp (the “Authors”) as employees of UT;
WHEREAS, the Authors have assigned their entire right, title and interest in and to the Rights to UTRF, resulting in UTRF having an undivided interest in and to the same; and
WHEREAS, Licensee wishes to obtain a nonexclusive license under the Rights (defined below) to use the Software for its internal research and development efforts; and
WHEREAS, UTRF is willing to grant such a license to Licensee, in consideration of Licensee’s satisfaction of its obligations hereunder, and for other good and valuable consideration as set forth below.
NOW, THEREFORE, the Parties agree as follows:
1.1 “Effective Date” means the date when the Licensee clicks the “Agree” or “Agree/Print” button and has successfully completed payment in the checkout process. The Effective Date is EFFECTIVE DATE.
1.2 “Hardware” means the computer workstations, peripherals, modems and other equipment for operating the Software, which must meet the following minimum requirements:
(i) The basic operations require a computer with MATLAB 7 plus the following:
A) Neural Networks Toolbox release 4.0 or later
B) Signal Processing Toolbox release 6.1 or later
C) Statistics Toolbox release 5.0 or later
D) Wavelet Toolbox release 3.0 or later
1.3 “Rights” means the rights in and to the Software.
1.4 “Registration Page” means the portion of the website used by Licensees to enter information permitting the licensing of the Software.
1.5 “Software” means executable code and source code files for PEM: Process and Equipment Monitoring Toolbox version 2.0, developed by Authors and provided by UTRF to Licensee, and all associated documentation.
1.6 “Software License Fee” means the fee paid by Licensee in U.S. dollars as set forth hereinafter for the license granted in accordance with the terms and conditions set forth in this Agreement. Licensee is responsible for any and all taxes associated with the Software License Fee.
1.7 “UT” means The University of Tennessee, a public higher education institution and instrumentality of the State of Tennessee.
2. Software License; Restrictions.
2.1 License. Subject to the terms and conditions of this Agreement and payment of the Software License Fee, UTRF hereby grants to Licensee, and Licensee hereby accepts, a limited, non-transferable, non-assignable, non-sublicensable, non-exclusive right and license to the Rights (1) to use and modify the Software in source code to create derivative works and (ii) to use the Software in object code form, with the respective Hardware, solely for internal research and development purposes. The Software provided hereunder and all copies thereof are proprietary to UTRF and title thereto remains in UTRF. Other than the license granted to Licensee hereunder, UTRF does not grant any licenses to Licensee under any of UTRF’s patents, patent applications, copyrights, and know-how, if any, embodied therein. Licensee acknowledges and agrees that the Software contains valuable proprietary information developed or acquired by Authors. Licensee shall use reasonable efforts to secure and protect the Software in a manner consistent with the maintenance of UTRF’s and UT’s rights therein and to take reasonable action by instruction or agreement with its employees or independent contractors who are permitted access to the Software to satisfy its obligations hereunder. UTRF reserves the right to grant commercial licenses to third parties.
2.2 Restrictions on Use.
(i) Licensee shall use the Software only for its internal research and development purposes.
(ii) Additionally, Licensee may make one copy of the Software but only for (i) archival or backup purposes and (ii) on a computer server that may be accessed by multiple independent users, for training purposes, but users may not copy the Software.
(iii) Licensee shall not do or attempt to do any of the following: (i) utilize the Software to provide medical care; (ii) make copies of the Software or share or disclose any applicable passwords or access codes to the Software, except as otherwise permitted herein; (iii) sublicense, rent, lease, lend, export or otherwise transfer the Software to any third party or to use in any country where prohibited by applicable law; (iv) provide remote processing or service bureau services utilizing the Software; (v) allow any unauthorized third party to implement, access, modify or operate the Software; (vi) remove or permit to be removed any labeling required by applicable U.S. law or other proprietary, confidential, or copyright notices, markings, or legends; or (vii) incorporate the Software in any commercial product or service.
(iv) Licensee shall only use the Software in accordance with applicable federal, state and local laws and regulations.
(v) Title to and ownership of any portion of a derivative work created by Licensee shall be owned by Licensee, subject to UTRF’s rights to the underlying Software. Title to and ownership of any derivative works created by Authors shall be owned by UTRF. Licensee further agrees that all right, title and interest in and to the Software (and all intellectual property rights embodied therein) or any modification or improvement thereof made by UTRF or UT is proprietary to UTRF.
(vi) Nothing contained in this Agreement shall be construed to limit UTRF’s rights to modify the Software or to develop other products that are similar to or offer the same or similar improvements as any derivative works developed by Licensee.
(vii) Licensee shall defend, indemnify and hold UTRF and UT, and its officers, trustees, faculty, staff, employees, students, agents and their respective successors or assignees harmless from and against any and all claims, liabilities and expenses (including reasonable attorneys’ fees) of any kind arising out of or related to the exercise of any rights granted to Licensee under this Agreement or the breach of this Agreement by Licensee. These indemnification obligations shall survive the termination or expiration of this Agreement.
3. License Fees. Licensee shall pay to UTRF a non-refundable, non-transferable, non-creditable license issue fee comprised of the following items:
(i) Software License Fee of Ten Thousand Dollars ($10,000)
All invoices received from UTRF shall be paid by Licensee in full promptly upon receipt. All invoices shall be submitted and addressed to the billing information provided by the Licensee on the Registration Page. This Agreement shall be null and void unless payment of the Software License Fee is received by UTRF within sixty (60) calendar days ofLicensee’s receipt of such invoice from UTRF.
4. Technical Assistance.
4.1 Licensee acknowledges and agrees that UTRF is not obligated to provide any technical assistance, updates, upgrades, new versions, or support to the LICENSEE in the exercise of the Agreement. In the event LICENSEE requires technical assistance with respect to the activities conducted by Licensee pursuant to this Agreement, obtaining such technical assistance (whether from the Authors or otherwise) shall be Licensee’s responsibility and at Licensee’s expense.
4.2 Nothing herein shall be construed to require UTRF or UT to develop any new versions of the Software. If UT develop new versions of the Software, the new versions will be available to Licensee upon payment of additional fees.
5. Limited Warranty; Disclaimers; Limitations of Liability.
5.1 Limited Warranty. EXCEPT AS STATED IN THIS SECTION 5.1, THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY, UTRF severally warrants that is has the authority to grant the licenses contained in this Agreement. These warranties shall remain in effect provided: (i) Licensee has not improperly installed, maintained, configured, altered or used the Software; (ii) Licensee has complied with all configuration requirements; and (iii) Licensee is not in breach of any provision of this Agreement.
5.2 Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY SET FORTH IN SECTION 5.1 IS IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS. UTRF, UT, OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AFFILIATES SEVERALLY DO NOT MAKE AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE AND SUPPORT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER UTRF KNOWS OR HAD REASON TO KNOW OF LICENSEE’S PARTICULAR NEEDS. LICENSEE ACKNOWLEDGES THAT UTRF OR UT WILL NOT PROVICE LICENSEE WITH ANY MAINTAINANCE OR SUPPORT FOR SOFTWARE. NO EMPLOYEE, AGENT, DIRECTORS, OFFICERS, AGENT OF UTRF AND UT IS AUTHORIZED TO MODIFY THE LIMITED WARRANTY, OR TO MAKE ANY ADDITIONAL WARRANTIES. SOME COUNTRIES AND STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS, AND LICENSEE MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY OR STATE TO STATE.
5.3 Limitation of Liability. Licensee’s exclusive remedy for a breach of this Agreement shall be termination of this Agreement by returning or destroying the Software. UTRF shall not have 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 inability to use the Software, nor shall UTRF be liable for any loss of data or lost profits of Licensee, even if UTRF is apprised of the likelihood of such damages occurring or such damages could have been reasonably foreseen by either party. UTRF’s total liability under this Agreement for any reason shall not exceed the amount of the Software License Fee paid under this Agreement. Licensee acknowledges and agrees that licensing the Software for the Software License Fee 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 Software License Fee charged by UTRF, and in consideration of UTRF charging the Software License Fee, Licensee agrees to such allocation of risks. SOME COUNTRIES OR STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY.
6. Assignment. Licensee shall not assign or transfer this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of UTRF. UTRF may assign its rights or obligations hereunder without the consent of or notice to Licensee. This Agreement shall inure to the benefit of and bind successors and permitted assigns of UTRF and Licensee.
7. Term; Termination; Survival.
7.1 Term; Termination. This Agreement shall become effective on the Effective Date when Licensee clicks the “Agree” or “Agree/Print” button and pays Software License Fee, and the terms of this Agreement shall remain in effect for the life of the Software. Software download instructions will not be delivered until the Licensee has paid in full the Software License Fee. This Agreement will automatically terminate if Licensee fails to comply with any term or condition of this Agreement. Licensee may also terminate this Agreement at any time during the term by providing written notice of UTRF and destroying all copies of the Software in its possession.
7.2 Obligations upon Termination. Upon termination of this Agreement, the license granted to Licensee shall immediately terminate and Licensee shall (i) promptly return to UTRF 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) certify in writing to UTRF that Licensee has completed the foregoing and that no copies of the Software exist in Licensee’s possession or control and Licensee has complied with Licensee’s obligations set forth in this Agreement; and (v) comply with its obligations set forth in this Agreement. 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.
7.3 Survival. Sections 2.2 (vii), 4.2, 5, 7.3 and 8 and any provision of this Agreement which by its terms provides for survival shall survive the expiration or termination of this Agreement.
8. General Provisions.
8.1 Notices. All notices required or permitted relating to a claim or breach of this Agreement shall be in writing and sent to: (i) if to the Licensee: the address provided by Licensee when ordering the Software; and (ii) if to UTRF: Attn: Vice President, 600 Henley Street, Conference Center Suite 211 Knoxville, Tennessee 37996. Either Party may substitute their address from time to time by written notice to the other and shall be deemed validly given upon receipt of such notice given by certified mail, postage prepaid, or personal or courier delivery. All other notices relating to the usage of the Software will be provided by UTRF either via telephone or e-mail.
8.2. Governing Law; Severability. This Agreement is made in Knoxville, Tennessee, U.S.A., and performance hereunder shall be governed and construed in accordance with the laws of the U.S. 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 Eastern District of Tennessee and of any Tennessee state court sitting in Knoxville, Tennessee 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. 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.
8.3. Integration; Waiver; Modification. The Parties hereto acknowledge and agree 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. 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.
8.4. Independent Contractor. Nothing contained in this Agreement shall be construed to create a joint venture or partnership between the Parties.
8.5. 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.
8.6 Import/Export Restrictions. Licensee shall comply with all export laws, restrictions and regulations of the United States or foreign agencies or authorities and shall not export or re-export the Software in violation of any such restrictions, laws or regulations, or without all necessary approvals. This Software was exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Neither the Software nor the underlying information or technology may be downloaded or otherwise exported or re-exported (i) into Cuba, Iran, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions covering the Software, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons, the U.S. Commerce Department’s Denied Persons List, or the U.S. Commerce Department’s Entity List. Licensee agrees to the foregoing and represents and warrants that it complies with these conditions.
8.7 U.S. Government End-Users. The Software is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End-Users acquire the Software with only those rights set forth herein.
8.8 Licensee Outside the U.S. If Licensee is located outside the U.S., then the provisions of this Section 8.8 shall apply: (i) The Parties confirm that this Agreement and all related documentation is and will be in the English language; and (ii) Licensee is responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Software, and Licensee represents that it has complied with any applicable laws and regulations or registration procedures required by applicable law to make this Agreement enforceable.
8.9 Licensee is hereby notified that both UTRF and UT severally reserve the right to utilize the Software for their respective research, teaching and educational purposes and to grant non-exclusive licenses to other entities.
8.10 Licensee shall not use the names, logos, or trademarks of UTRF or UT or any of their respective employees, staff members, directors, trustees, or any Author, or any adaptation thereof, in any advertising, promotional or sales literature without prior written consent obtained from UTRF or UT, in each case, except that Licensee may state that it is licensed by UTRF to use the Software.