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Research and Evaluation License Agreement
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This Research and Evaluation License Agreement (“Agreement”) is an agreement between the individual or entity accepting the terms of this Agreement as licensee (“Licensee”), and The University of Texas Health Science Center at Houston (“UTHealth”) on its own behalf and on behalf of the Board of Regents (“Board”) of the University of Texas System (“System”) (collectively “Licensor”).
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UTHealth has developed certain Executable Code, encompassed in Software, and Documentation (as such terms are defined below), including computer software that may include associated media, printed materials, “online” or electronic documentation, and internet-based services, that it desires to make available without charge to Licensee for solely in-house academic, research, experimental purposes or for evaluating whether to obtain a commercial license to the Executable Code (the “Purpose”).
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The terms and conditions in this Agreement apply to the Executable Code, Software and Documentation made available by UTHealth, and to any improvements or derivative works of Software and Documentation made by Licensee. Any Executable Code, Software and Documentation or any improvements or derivative works thereof obtained by Licensee shall fall under the terms and conditions in this Agreement. Any other use of the Executable Code, Software, or Documentation, including but not limited to any Commercial Use, will require a separate commercial license from UTHealth.
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By clicking the “ACCEPT” button, or by installing or otherwise using any portion of the Executable Code, Software, or Documentation, you agree to the terms and conditions of this Agreement and consent to be bound by this Agreement (the “Effective Date”). If you do not agree to the terms and conditions of this Agreement, do not click the “ACCEPT” button, and do not install or use any part of the code. Installing or using any part of the code without clicking the “ACCEPT” button is a violation of copyright law and subject to legal action.
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1.1 means use of Executable Code, Software or Documentation by Licensee for direct or indirect financial, commercial or strategic gain or advantage, including without limitation: (a) bundling or integrating the Software with any hardware product or another software product for transfer, sale or license to a third party (even if distributing the Software on separate media and not charging for the Software); (b) providing third parties with a link to the Executable Code, Software or Documentation or a copy of the Executable Code, Software or Documentation for use with hardware or another software product purchased by that third party; or (c) use in connection with the performance of services for which Licensee is compensated. Notwithstanding the foregoing, use of Executable Code, Software or Documentation by Licensee for the Purpose (as defined above) is not considered Commercial Use.
1.2 means any improvements to, modifications, language translations, programming language translations, or other derivative works of, the Executable Code, Software or Documentation made by Licensee.
1.3 means documentation in paper, electronic or digital format reasonably necessary to utilize Software. Documentation shall include, without limitation, such documents and manuals that collectively contain a complete description and definition of any Software operations, and any user guides useful and/or necessary for the operation and management of any Software in the appropriate language(s) and formats, including design documents and test plans.
1.4 means the executable program file provided by Licensor to Licensee.
1.5 means the person or entity that has clicked the “ACCEPT” button or installed or otherwise used the code and therefore has agreed to the terms and conditions hereof and is exercising rights granted hereunder.
1.6 means the output of a compiler after it processes source code, including but not limited to, code in the form of machine language that is directly executable by a microprocessor. For clarification, object code also includes machine code files that are that require linking with other object code files (e.g. libraries) to produce a complete executable program.
1.7 means the computer program(s) referred to as “Turf v2.0.1” (University’s Technology Report No. 2011-0011 and 2013-0004) made available under this Agreement, including but not limited to, Executable Code, Source Code, Object Code, any error corrections, bug fixes, patches, Updates, Upgrades, modifications, enhancements, improvements, additions, derivative works, know-how, processes, procedures, compositions, methods, formulas, protocols, techniques, designs, drawings, materials, data, or any documentation or related materials that Licensor may in its sole discretion make available to Licensee from time to time, and any object code compiled from such source code. Software also includes Derivative Products.
1.8 means any collection of computer instructions, including comments all modules it contains, associated interface definition files, scripts used to control compilation and installation of an executable format program, and that which is written using human-readable computer language, such as text.
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2.1 Subject to the terms and conditions hereunder, Licensor hereby grants to Licensee a site-specific, non-transferable, non-exclusive license to:
(a) install and use the Executable Code for the Purpose only (but expressly excluding Commercial Use); and
(b) use the Documentation, if any, solely in connection with Licensee’s authorized use of the Executable Code.
2.2 This grant in Section 2.1 is further subject to the following restrictions on codes within the Software:
(a) No license is granted in this Agreement to Object Code or Source Code of Software. If Licensee obtains Object Code or Source Code of Software, Licensee represents and warrants that Licensee will not incorporate such Object Code or Source Code into new works or use such Object Code or Source Code in any manner.
(b) You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
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3.1 Licensee shall not: (a) distribute, sub-license or otherwise transfer copies or rights (or any portion thereof) to the Executable Code or Software or the Documentation; (b) use any portion of the Executable Code or Software or Documentation for Commercial Use, or for any other use except as described in Section 2; (c) copy any portion of the Documentation or Executable Code other than for archival and backup purposes; (d) remove any product identification, copyright, proprietary notices, patent marking, or labels from the Executable Code or Documentation; or (e) modify, translate, or create derivative works, or Derivative Products of all or any portion of the Executable Code or Documentation, or to reuse, disassemble, decompile, reverse engineer, or otherwise translate the Executable Code or Documentation or any portion thereof. This Agreement confers no rights upon Licensee except those expressly granted herein in this Agreement.
3.2 In the event that Licensee creates unauthorized derivative works or Derivative Products, Licensee hereby agrees that it will provide a copy of all derivative works or Derivative Products to Licensor and that Licensee’s use of the derivative works or Derivative Products will be subject to all of the same terms, conditions, restrictions and limitations on use imposed on the Software and Documentation under this Agreement. Furthermore, all rights to, title to, and interest in derivative works of the Software or Documentation created by Licensee or any agent or employee of Licensee shall be owned by and does hereby vest in Licensor. Licensee hereby irrevocably assigns, conveys, and transfers to Licensor and its successors, all rights, title and interest in and to such derivative works and Derivative Products. Licensee agrees to take all reasonably necessary steps that will allow Licensor to establish and demonstrate ownership of any unauthorized derivative works or Derivative Products.
3.3 LICENSEE IS EXPRESSLY PROHIBITED FROM TRANSFERRING, SENDING, OR STORING ANY PROTECTED HEALTH INFORMATION TO LICENSOR OR LICENSOR’S NETWORK OR SERVERS.
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4.1 Confidentiality. The Executable Code, Software and Documentation are the confidential, valuable, and proprietary information of Licensor. Licensee shall take adequate steps to protect the Executable Code, Software and Documentation from unauthorized disclosure or use. Licensee agrees that it will not disclose the Executable Code, Software or Documentation, or any part thereof, to any third party. Licensee will exercise at least the standard of reasonable care that it would use to protect its own confidential, valuable and proprietary information.
4.2 Proprietary Notices. Licensee shall maintain and place on any copy of Software, Executable Code, or Documentation that it reproduces for internal use all notices as are authorized and/or required hereunder. Licensee shall include a copy of this Agreement and the following notice on each copy of the Software, Executable Code and Documentation. Such license and notice shall be embedded in each copy of the Executable Code, in the video screen display, on the physical medium embodying the Executable Code copy, and on any Documentation:
Copyright © 2013 , The University of Texas Health Science Center at Houston. All rights reserved. UNIVERSITY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE SOFTWARE AND DOCUMENTATION, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES OF PERFORMANCE, AND ANY WARRANTY THAT MIGHT OTHERWISE ARISE FROM COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE USE OF THE SOFTWARE OR DOCUMENTATION. Under no circumstances shall University be liable for incidental, special, indirect, direct or consequential damages or loss of profits, interruption of business, or related expenses which may arise from use of the Software or Documentation, including but not limited to those resulting from defects in Software and/or Documentation, or loss or inaccuracy of data of any kind.
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5.1 Disclaimer of Warranties. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE EXECUTABLE CODE, SOFTWARE, AND DOCUMENTATION IS BEING PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND RESPECTING THE SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF Executable CODE OR SOFTWARE AND DOCUMENTATION REMAINS WITH LICENSEE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE Executable CODE OR SOFTWARE AND DOCUMENTATION, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL APPLY TO ALL CLAIMS AND ACTIONS OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NGEGLIGENCE), OR ANY OTHER GROUNDS LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES THAT SOFTWARE AND DOCUMENTATION DOES NOT INFRINGE ON ANY THIRD-PARTY RIGHTS.
5.2 Limitation of Liability. UNDER NO CIRCUMSTANCES, UNLESS REQUIRED BY APPLICABLE LAW, SHALL LICENSOR BE LIABLE FOR INCIDENTAL, SPECIAL, INDIRECT, DIRECT OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, INTERRUPTION OF BUSINESS, OR RELATED EXPENSES WHICH MAY ARISE AS A RESULT OF THIS LICENSE OR OUT OF THE USE OR ATTEMPT OF USE OF EXECUTABLE CODE, SOFTWARE, OR DOCUMENTATION INCLUDING BUT NOT LIMITED TO THOSE RESULTING FROM DEFECTS IN SOFTWARE AND/OR DOCUMENTATION, OR LOSS OR INACCURACY OF DATA OF ANY KIND. THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL APPLY TO ALL CLAIMS AND ACTIONS OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR ANY OTHER GROUNDS.
5.3 The Executable Code, Software, and Documentation have been designed for research purposes only and have not been reviewed or approved by the Food and Drug Administration or by any other agency. LICENSEE UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT CLINICAL APPLICATIONS ARE NEITHER RECOMMENDED, ADVISED, OR ALLOWED UNDER THIS AGREEMENT. Any use of the Executable Code, Software, and Documentation is at the sole risk of the party or parties engaged in such use. THE EXECUTABLE CODE, SOFTWARE, AND DOCUMENTATION ARE NOT DESIGNED, INTENDED, OR AUTHORIZED FOR USE IN ANY TYPE OF SYSTEM OR APPLICATION IN WHICH THE FAILURE OF THE SYSTEM OR APPLICATION COULD CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR (E.G., MEDICAL SYSTEMS, LIFE-SUSTAINING OR LIFE-SAVING SYSTEMS).
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Licensee shall indemnify, defend and hold harmless Licensor, the University of Texas System, Board, and their respective officers, agents and employees from and against any claims, demands, or causes of action whatsoever caused by, or arising out of, or resulting from, the exercise or practice of the license granted hereunder by Licensee, its officers, employees, agents or representatives.
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The term of this Agreement shall be three (3) months from the Effective Date.
If Licensee breaches this Agreement or when this Agreement expires (whichever is first), Licensee’s right to use the Executable Code, Software and Documentation will terminate immediately without notice, but all provisions of this Agreement except Section 2 will survive termination and/or expiration and continue in effect. Upon termination or expiration, Licensee must destroy all copies of the Software, Executable Code and Documentation and certify in writing to Licensor the destruction of all copies thereof within five (5) business days of termination or expiration.
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The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Texas. The Texas state courts of Harris County, Texas (or, if there is exclusive federal jurisdiction, the United States District Court for the Southern District of Texas) shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement, and Licensee consents to the jurisdiction of such courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
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This license is subject to all applicable export restrictions. Licensee must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Executable Code, Software, and Documentation and its use.
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The Executable Code is a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b)(2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government End Users acquire the Software with only those rights as set forth herein.
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11.1 If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this Agreement shall not be affected thereby.
11.2 Licensee may not assign this Agreement in whole or in part, without Licensor’s prior written consent. Any attempt to assign this Agreement without such consent will be null and void.
11.3 This Agreement is the complete and exclusive statement between Licensee and Licensor relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties, if any.
11.4 Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind.
11.5 This Agreement is binding and inures to the benefit of the parties hereto, their respective executors, administrators, heirs, permitted assigns, and permitted successors in interest.
11.6 Headings are for convenience only and will not be used to construe the Agreement.
11.7 Licensee shall comply with all applicable federal, state, and local laws and regulations, including without limitation, all export laws and regulations.
11.8 Nothing in this Agreement shall be deemed or treated as any waiver of Licensor’s sovereign immunity.
11.9 Any notice, questions, concerns, or other communication required or permitted to be given or made under this Agreement will be in writing and will be deemed effective when sent in a manner that provides confirmation or acknowledgment of delivery and received at the address set forth:
The University of Texas Health Science Center at Houston
Office of Technology Management
7000 Fannin Street, Suite 720
Houston, Texas 77030
FAX: 713-500-0331
PHONE: 713-500-3369
EMAIL: [email protected]
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END OF LICENSE
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