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SOFTWARE LICENSE AGREEMENT

THIS SOFTWARE LICENSE AGREEMENT (this “Agreement) is made and entered into on this day that you click “I Agree” by and between The Cleveland Clinic Foundation, an Ohio non-profit corporation located at 9500 Euclid Avenue, Cleveland, OH 44195 (“CCF), and you and the entity for whom you are binding to this Agreement (“Licensee).

BACKGROUND

A. CCF is the developer and owner of the computer software product (“Licensed Software).

B. Licensee desires to obtain a license to copy, install, and use the Licensed Software throughout Licensee’s organization.

NOW, THEREFORE, the parties hereby agree as follows:

1. GRANT OF RIGHTS

(a) License to Use Software. CCF grants Licensee a non-exclusive, non-transferable license (i) to install and use the Licensed Software, in executable form for non-commercial research purposes, on the hard disks of up to five- (5) stand-alone computers owned or leased by Licensee, and (ii) to use the associated written documentation provided by CCF (“Documentation). The right to use the Licensed Software and Documentation is limited to employees of Licensee and Licensee’s internal activities.

(b) Right to Copy Software. Licensee may copy the Licensed Software to the extent necessary to exercise the foregoing license and for back-up and archival purposes. Licensee shall reproduce CCF’s copyright notices and other proprietary notices on all copies of the Licensed Software, and all copies shall be subject to all terms, conditions, and obligations of this Agreement.

(c) Right to Copy Documentation. Licensee may copy the Documentation to the extent necessary to exercise the foregoing license. Licensee shall reproduce CCF’s copyright notices and other proprietary notices on all copies of the Documentation, and all copies shall be subject to all terms, conditions, and obligations of this Agreement.

(d) Restrictions on Use. The foregoing rights to copy, install, and use the Licensed Software and Documentation shall be subject to the following restrictions:

(i) Licensee shall not copy or allow copies of the Licensed Software or Documentation to be made, except as specifically allowed under this Agreement;

(ii) Licensee shall not use the Licensed Software in, or allow others to use the Licensed Software in, a network arrangement;

(iii) Licensee shall not sell, lease, sublicense, distribute, or otherwise transfer the Licensed Software or Documentation to any person, firm, or entity;

(iv) Licensee shall not modify, alter, adapt, or publicly perform or display the Licensed Software or Documentation in any manner;

(v) Licensee shall not use, or permit the Licensed Software to be used, in a computer service bureau, time-sharing, or interactive cable television arrangement; and

(vi) Licensee shall not decompile, disassemble, reverse translate, or otherwise reverse engineer any portion of the Licensed Software.

2. OWNERSHIP OF LICENSED SOFTWARE

(a) Ownership. Licensee acknowledges that the Licensed Software and the Documentation, and all copies thereof made by Licensee hereunder, are the exclusive property of CCF and that title to the above shall at all times remain with CCF. Licensee further acknowledges that Licensee has no rights in the Licensed Software or the Documentation except those expressly granted by this Agreement.

(b) Protection. Licensee will take all reasonable steps to protect the Licensed Software and Documentation from any use, reproduction, publication, disclosure, or distribution that is not specifically authorized by this Agreement. Licensee will maintain a written record of the locations at which the Licensed Software is installed.

(c) Notices. Licensee shall not remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed by CCF in or on the Licensed Software or Documentation and shall ensure that all such notices are reproduced on all authorized copies of the Licensed Software and Documentation made by Licensee.

3. CONFIDENTIALITY

(a) Licensee acknowledges that the Licensed Software and Documentation contain confidential information and trade secrets that CCF states have been developed or acquired by CCF through the expenditure of a great deal of time and money. Licensee agrees to maintain and protect the confidentiality of this confidential information and these trade secrets and agrees not to disclose them or use them for any purpose not contemplated by this Agreement. Licensee agrees to formulate and adopt appropriate safeguards in light of its own operating activities to ensure protection of the confidentiality of this confidential information and these trade secrets.

(b) The restrictions on disclosure set forth above shall not apply when, and to the extent that, such Licensed Software and Documentation received by Licensee from CCF: (i) is part of the public knowledge or literature; (ii) is made available to the general public by CCF or a third party who is lawfully in possession of such information, not as a result of any action or failure to act on the part of Licensee; (iii) was previously known to Licensee free of any obligation to keep it confidential; (iv) is subsequently disclosed to Licensee free of any obligation to keep it confidential; or (v) is independently developed by Licensee or a third party.

4. WARRANTY

(a) Warranty. CCF warrants to Licensee that to its knowledge for a period of thirty- (30) days from the date of original delivery of the Licensed Software to the Licensee that (i) the media containing the Licensed Software delivered to Licensee will be free from defects in materials and workmanship under normal use, and (ii) the Licensed Software will perform substantially in accordance with the Documentation. If a defect in such media appears or the Licensed Software fails to so perform during this thirty- (30) day period, the defective media or Licensed Software may be returned to CCF, and CCF will, at CCF’s option, replace it without charge to Licensee or refund the License Fee paid by Licensee. This shall constitute Licensee’s sole and exclusive remedy for a breach of the warranty set forth in this section.

(b) DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, CCF MAKES NO EXPRESS OR IMPLIED WARRANTIES WHATSOEVER AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

5. LIMITATION OF LIABILITY

CCF’S LIABILITY TO LICENSEE SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEES PAID BY LICENSEE TO CCF HEREUNDER. IN NO EVENT WILL CCF BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUFFERED BY LICENSEE, EVEN IF CCF HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6. TERM AND TERMINATION

The license granted under this Agreement shall continue for the duration of the copyright in the Licensed Software, unless sooner terminated by CCF or the Licensee in accordance with this Agreement. If Licensee breaches any of the terms of this Agreement, and such breach is not cured within thirty- (30) days of the date of written notice, this Agreement shall terminate.

7. EVENTS UPON TERMINATION

Upon termination of the license to use the Licensed Software, Licensee shall be obligated to immediately cease using the Licensed Software and Documentation; to return to CCF, or destroy, all copies of the Licensed Software and Documentation; and to provide CCF with written certification of its compliance with the foregoing. Termination of this Agreement shall not relieve Licensee from its obligations arising hereunder before termination, including but not limited to the responsibility for paying previously accrued fees and the responsibility for not disclosing the Licensed Software or CCF’s confidential information or trade secrets.

8. INDEMNIFICATION

To the fullest extent permitted by law, Licensee shall indemnify, defend and hold harmless CCF and its affiliates, and their respective directors, officers, managers, employees and agents, from and against any and all damages, suits, investigations, demands, claims and proceedings and all related costs, penalties, interest, or expenses (including reasonable attorneys’ fees and costs as incurred by counsel of CCF’s choice) at all levels of litigation or other proceeding which may be sustained or incurred by CCF at any time, relating to or arising from Licensee’s breach or alleged breach of any warranty or any other obligation under this Agreement, or relating to or arising from any act or omission (negligent or otherwise) by Licensee, its directors, officers, employees, or agents in connection with the performance under this Agreement, including without limitation, as a result of Licensee’s violation of federal, state or local laws, rules or regulations.

9. GENERAL PROVISIONS

(a) Assignment. This Agreement may not be assigned by Licensee or by operation of law to any other person, persons, firms, or corporations without the express prior written approval of CCF.

(b) Notices. All notices and demands hereunder shall be in writing and shall be served by personal service or by mail at the address of the receiving party set forth in this Agreement (or at such different address as may be designated by such party by written notice to the other party). All notices or demands by mail shall be by certified or registered mail, return receipt requested, or by nationally-recognized private express courier and shall be deemed complete upon receipt.

Communications regarding the Licensed Software to:

Michael Kattan, Ph.D.
Quantitative Heath Sciences
/ Mailcode JJN3-01
The Cleveland Clinic Foundation
9500 Euclid Avenue
Cleveland, OH 44195

Communications regarding the terms and/or implementation of this Agreement:

Executive Director, CC Innovations
CC Innovations / Mailcode D20
9500 Euclid Avenue
Cleveland, OH 44195

With a copy to:

The Cleveland Clinic Foundation
Office of General Counsel
3050 Science Park Drive/AC321
Beachwood, Ohio 44122
Attention: Chief Legal Officer


(c) Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Ohio. Any legal action concerning the provisions hereof shall be brought in the courts sitting in the State of Ohio, County of Cuyahoga, United States of America, and, by using or accessing this Licensed Software, Licensee consents to be bound to the adjudication of actions within this jurisdiction. Licensee agrees that it shall take no action to challenge the law and jurisdiction for actions arising under this Agreement and shall use its best efforts to ensure that any such claim is adjudicated in Cuyahoga County, Ohio using Ohio law. Licensee agrees that no treaty, no laws or rules or regulation of another country will pre-empt this section.

(d) Force Majeure. Neither party shall be responsible for delays or failure of performance resulting from acts beyond the reasonable control of such party. Such acts shall include, but not be limited to, acts of God, strikes, walkouts, riots, acts of war, epidemics, failure of suppliers to perform, governmental regulations, power failures, earthquakes, or other disasters.

(e) Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this Agreement.

(f) All Amendments in Writing. No provisions in either party’s purchase orders, or in any other business forms employed by either party, will supersede the terms and conditions of this Agreement, and no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.

(g) Entire Agreement. The parties have read this Agreement and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications, oral or written, between them relating to the license and to the subject matter hereof. No representations or statements of any kind made by either party that are not expressly stated herein shall be binding on such party.

(h) Use of Name. Neither party shall use the name, logo, likeness, trademarks, image or other intellectual property of the other party for advertising, marketing, endorsement or any other purposes without the express prior written approval of an authorized representative of the other party as to each such use. Neither party shall issue any press release or similar publication without the other party’s express prior written approval for each such use.

(i) Compliance with Laws. Licensee will comply with all applicable laws, rules and regulations.

(j) Export. Licensee shall not: (1) export or re-export or permit transshipment thereof, directly or indirectly, any Licensed Software, Documentation, or direct product to any country to the extent such country requires an export license or other governmental approval, without first obtaining such license or approval; (2) export or re-export or permit transshipment thereof, directly or indirectly, any Licensed Software, Documentation, or direct product thereof in violation of any U.S. export laws or any other restrictions, laws or regulations; and (3) under any circumstances, export the Licensed Software or Documentation to any country restricted by the U.S. export laws and regulations. Accessing, using, copying, downloading, exporting or re-exporting materials in violation of U.S. export laws or applicable laws of other locations is prohibited. By downloading or using the Licensed Product and/or Documentation, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country. Licensee is solely responsible for using and accessing the Licensed Software outside the U.S., and does so at its own risk with complete responsibility for compliance with applicable local foreign laws, including, but not limited to, export regulations.

(k) Survival of Certain Provisions. The following Sections and the defined terms used therein shall survive the termination of this Agreement by either party for any reason: 1, 2, 3, 5, 8, 9(c), 9(h), 9(j)and 9(k).

Do you, the Licensee, agree to the terms of this Agreement? If so, then Licensee’s access to use the Licensed Software shall be granted when Licensee clicks “I Agree.” Licensee may not use or access the Licensed Software if Licensee clicks “I Do Not Agree” and any such unauthorized use or access will be in violation of CCF’s proprietary and intellectual property.

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