U-DESIGN MASTER SUBSCRIPTION AGREEMENT
This U-DESIGN MASTER SUBSCRIPTION AGREEMENT (the "Agreement"), effective as of
the date the Order (defined below) is
submitted (the "Effective Date") is made by and between Cytel Inc., a Delaware
corporation with a principal place of
business located at 1050 Winter Street, Suite 2700, Waltham, MA 02451 ("CYTEL"), and the customer set forth on the
Order ("Customer"). Each of CYTEL and Customer shall be referred to herein as a "Party" and, collectively, as the
WHEREAS, CYTEL is the parent company of Laiya Consulting, Inc. ("LAIYA"), which has developed
and offers subscriptions to its proprietary software clinical trial design web tool, currently marketed as U-Design
WHEREAS, the U-Design software products are provided on a software-as-a-service basis and
include solutions to design, simulate, and report specified aspects of clinical trials;
WHEREAS, CYTEL desires to make such solutions available to Customer on the terms and
conditions described below;
WHEREAS, Customer wishes to have the option to purchase, during the term of this Agreement,
subscriptions to such solutions and services; and
WHEREAS, the initial such subscription purchase is provided for in the Order form hereto.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in consideration of the mutual covenants and conditions herein contained, the Parties agree
In addition to the terms defined elsewhere in this Agreement, the terms below shall have the following meanings:
- "Named Users" shall mean those individual, named employees of Customer (or
consultants, contractors and agents of
Customer approved in writing by CYTEL) to whom CYTEL has authorized access to the Software and System by providing
access credentials, in order to perform his or her job functions for the internal business purposes of the Customer.
- "Order" shall mean an ordering document and online order that is entered
into between Customer and CYTEL specifying the Software to be provided hereunder, as well as all related terms, such
as the applicable Subscription Term, number of Named Users and any other applicable license parameters. Where
Customer specifies the Software ordered using its own purchase order, such purchase order will be considered an
Order solely for the purposes of listing and specifying the Software and licensing parameters, in each case, subject
to the restrictions set forth in Section 1.in Section 1
- "Software" shall mean CYTEL’s proprietary software solutions, U-Design,
together with any Updates (defined below) provided by or made available by CYTEL pursuant to an Order.
- "System" shall mean the information technology infrastructure used by or
on behalf of CYTEL or LAIYA to provide Customer use of, and access to, the Software, including all the Software,
computer systems, hardware, databases, electronic systems (including database management systems) and networks,
whether operated directly by CYTEL or through the use of third-party services.
- General Terms. Any access and use rights granted to the System and Software
by Cytel are expressly conditioned upon Customer's compliance with the terms of this Agreement. Customer may order
subscriptions for the Software through one or more purchase orders issued by Customer and accepted by CYTEL. The
provisions of this Agreement will apply to all such purchase orders whether or not this Agreement is referenced in
the purchase order. None of the terms and conditions of Customer's purchase order, other than the listing of the
Software, the license parameters (including Named Users and Subscription Term), and the applicable fees, shall apply
to the provision by CYTEL of access to the System and Software.
- Use of the System and Software.
- Customer's use of the System and Software shall be subject to the terms and conditions of this Agreement and
the licenses from third party licensors, if applicable.
- As between CYTEL and Customer, the System, Software and supporting materials, and all worldwide intellectual
property rights therein, are the sole and exclusive property of CYTEL and, if applicable, its licensors.
Customer shall have no right or interest in or to the System and Software except as provided in this Agreement.
Customer acknowledges that it is being provided a grant to access and use to the System and Software on a
subscription basis. Except to the limited extent required for Customer to access and use the System and Software
pursuant to the express grants in Sections 3.1 and 3.2, nothing in this Agreement will be deemed to grant, by
implication, estoppel or otherwise, a license in any of CYTEL’s existing or future intellectual property. All
rights not expressly granted by CYTEL under this Agreement are reserved by CYTEL. The System and Software
contains confidential information of CYTEL, and Customer agrees to keep the System and Software in confidence
and to take all reasonable precautions to ensure that no unauthorized persons (including CYTEL competitors) have
access to the System and Software.
- As long as Customer is not in default of any of the terms or conditions of this Agreement, Customer may access
and use the System and Software as provided herein. Such access and use shall be restricted to the license
parameters designated on the applicable Order.
- Grant; Access Rights.
- Upon the terms and subject to the conditions in this Agreement, CYTEL hereby grants to Customer a
non-exclusive, non-transferable, non-sublicensable revocable, limited right to access and use the System and
Software solely within (a) the restrictions set forth in this Agreement, (b) the license parameters, including
the applicable number of Named Users and Subscription Term(s), each as set forth in the applicable Order, and
(c) the use defined herein that Customer subscribed to from, and is granted by, CYTEL.
- Upon the terms and subject to the conditions in this Agreement, CYTEL hereby grants to Customer a
non-exclusive, non-sublicensable, non-transferable, limited license to use the Documentation (as defined in
Section 3.3 below) during the Term solely for Customer’s internal business purposes in connection with its
access to, and use of, the System and Software.
- Customer agrees: (i) to access and use the Software only as part of the System for bona fide Customer
projects; (ii) to access and use the System and Software only for internal business purposes and only by
Customer’s Named Users; (iii) not to reproduce, modify or attempt to modify the System, the Software or any
component thereof; (iv) to preserve all copyright and trade secret notices in the System, the Software and
documentation provided with the Software that CYTEL makes available, generally, to subscribers
("Documentation"); (v) not to disclose the Software or Documentation to
any third parties; (vi) not to permit
parties other than its Named Users to access the System or the Software; (vii) not to attempt to decompile,
disassemble, decode, adapt, or otherwise attempt to derive or gain access to any software component of the
System or the Software in any respect; (viii) not to rent, lease, distribute, sell, or create derivative works
of the System or the Software; or (ix) not to use the System or the Software in order to develop a competing
offering to the System or the Software, as applicable. Customer acknowledges that it is responsible for all acts
and omissions of its Named Users and the security of all access credentials for the System and Software.
- Notwithstanding anything to the contrary in this Agreement, CYTEL may temporarily suspend Customer’s and any
Named User’s access to all or any portion of the System and Software if: (i) CYTEL reasonably determines that
(A) there is a threat to, or attack on, any of the CYTEL intellectual property; (B) Customer’s or any Named
User’s use of the CYTEL intellectual property disrupts or poses a security risk to the CYTEL intellectual
property or to any other customer or vendor of CYTEL; (C) Customer, or any Named User, is using the CYTEL
intellectual property for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased
to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar
disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or
similar proceeding; or (E) CYTEL‘s provision of the System or Software to Customer or any Named User is
prohibited by applicable law; (ii) any vendor of CYTEL has suspended or terminated CYTEL’s access to or use of
any third-party services or products required to enable Customer to access the System (any such suspension, a
"System Suspension") or (ii) CYTEL so elects pursuant to Section 6 below.
CYTEL shall use commercially
reasonable efforts to provide written notice of any System Suspension to Customer and to provide updates
regarding resumption of access to the System following any System Suspension. CYTEL shall use commercially
reasonable efforts to resume providing access to the System as soon as reasonably possible after the event
giving rise to the System Suspension is cured. CYTEL will have no liability for any damage, liabilities, losses
(including any loss of data or profits), or any other consequences that Customer or any Named User may incur as
a result of a System Suspension.
- The System may contain or otherwise make use of software, code, content, data, documentation, or other
materials, including, without limitation, “open source” or “freeware” software (“Third Party Components”). Third
Party Components may be licensed under additional or other license terms that accompany such Third Party
Components and Customer agrees to be bound by, and shall comply with, the provisions of such license terms.
Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the license
terms that accompany any Third Party Components.
https://www.cytel.com/privacynotice when accessing and using
the System and Software. By submitting an Order,
- Maintenance Services. [Omitted].
- Term and Termination.
- The term of this Agreement will commence upon the Effective Date and shall remain in effect until terminated
in accordance with Section 5.2 or 5.3 below. The term of each Software subscription for which Customer has
subscribed pursuant to an Order shall commence upon the first day on which CYTEL provides access to the Software
in a production environment to Customer pursuant to the applicable Order (each, a "Go-Live Date") and shall continue for the initial subscription term provided
in the applicable Order (each, the "Subscription Term"). Customer may not
change the terms of any subscription during a Subscription Term.
- This Agreement or any Subscription Term may be immediately terminated by either Party if the other Party
materially breaches this Agreement and does not cure said breach within thirty (30) days of being notified in
writing of said material breach; provided, that, CYTEL may immediately terminate this Agreement in the
that Customer breaches any of the restrictions set forth in Sections 3.1, 3.3, 6.1 or 6.2. Further, this
Agreement shall automatically terminate in the event that there is no Order in effect for a period of twelve
(12) consecutive months.
- No cancellation, expiration, or termination will affect Customer’s obligation to pay all fees that may have
become due before such cancellation, expiration or termination, or entitle Customer to any refund.
- The provisions of Sections 5 through 15 of this Agreement shall survive the expiration or termination of this
Agreement for any reason.
- Fees and Payments.
- Customer shall pay to CYTEL the fees as specified in the applicable Order. The fees payable in consideration
for access to, and use of, the Software and Maintenance Services (the "Subscription Fee") shall be due and
payable as set forth in the Order. All fees shall be payable in United States Dollars. The Subscription Fee may
be changed by CYTEL at the start of any renewal Subscription Term. Customer shall pay to CYTEL interest on the
amount of any payment obligation not paid when due at a rate equal to the lower of (i) 1.5% per month or portion
of a month or (ii) the highest rate permitted by law. Customer shall reimburse CYTEL for all reasonable costs
incurred by CYTEL in collecting any late payments or interest, including reasonable attorneys’ fees, court
costs, and collection agency fees; and, if such failure continues for sixty (60) days or more, CYTEL may suspend
Customer’s and its Named Users’ access to any portion or all of the System until such amounts are paid in full.
- Customer shall also be responsible for paying all taxes applicable with respect to the transactions
contemplated by this Agreement, except taxes based on CYTEL's net income. In addition to CYTEL's termination
rights set forth above, CYTEL may suspend access to the System and its performance under this and any other
agreement with Customer if Customer fails to comply with any part of its payment obligation.
- Representation and Warranties.
- Each of Customer’s and CYTEL’s signatory to the Agreement and/or Order. as the case may be, represents and
warrants that he or she has the power and full and legal authority to accept and bind Customer and CYTEL, as the
case may be, to the terms of this Agreement.
- Customer represents and warrants that (i) it has obtained all necessary rights, releases and permissions to
provide all Customer Data (as defined in Section 12) to CYTEL and to grant the rights granted to CYTEL in this
Agreement and (ii) Customer Data and its transfer to, and use by, CYTEL as authorized by Customer under this
Agreement do not violate any laws (including without limitation those relating to export control and electronic
communications) or rights of any third party, including without limitation any intellectual property rights,
rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not
inconsistent with the terms of any applicable privacy policies.
- Customer represents and warrants that it will not submit to, or process via, the System any Protected Health
Information (as defined under the Health Insurance Portability and Accountability Act of 1996) and shall
indemnify and hold Cytel harmless against any claims, losses or damages incurred in connection with Customer’s
breach of the foregoing representations and warranty.
- Except for Customers accessing the free version of the Software, where the Software is provided “AS IS” “WHERE
IS,” “AS AVAILABLE,” “WITH ALL FAULTS,” and to the fullest extent permitted by law, without warranty of any
kind, CYTEL otherwise warrants that the Software provided for a Fee will perform substantially in accordance
with the specifications set forth in the Documentation during the Subscription Term. CYTEL does not make any
representations or guarantees regarding uptime or availability of the System unless specifically identified in
Exhibit A. In the event of a breach of this warranty for the Software, CYTEL's sole obligation and
exclusive remedy, shall be, at CYTEL's option, correction of the substantial nonconformity within a reasonable
time, or termination of this Agreement and payment to Customer of a refund of the most recently paid monthly
payment of the Subscription Fee.
- CYTEL its suppliers and licensors provide no warranty or remedy for any Third Party Component; such Third
Party Components are provided “AS IS,” “WHERE IS,” “AS AVAILABLE,” “WITH ALL FAULTS,” and to the fullest extent
permitted by law, without warranty of any kind.
- The above warranty is made subject to Customer's proper use of the Software for the purpose the Software was
intended. The warranty does not cover any Software which: (i) has been misused, subject to unauthorized use, or
modified by a Party other than CYTEL; or (ii) has a defect which resulted from acts or omissions of persons
other than CYTEL or from products, material, or software not provided by CYTEL.
- EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CYTEL MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO
THE SYSTEM, SOFTWARE, THIRD PARTY COMPONENTS, OR ANY SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES
OF NONINFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7.4, CYTEL MAKES NO WARRANTY OF ANY
KIND THAT THE CYTEL INTELLECTUAL PROPERTY, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S
OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR
WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR
ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED.
- Limitation of Liability.
- NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES,
INCLUDING WITHOUT LIMITATION, LOST DATA OR LOST PROFITS, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES,
HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO (i) EACH PARTY’S RESPECTIVE INDEMNIFICATION
OBLIGATIONS PURSUANT TO SECTIONS 9 AND 10 BELOW, (ii) EACH PARTY’S RECKLESS OR WILLFUL MISCONDUCT, GROSS
NEGLIGENCE AND/OR FRAUD, AND (iii) CUSTOMER’S PAYMENT OBLIGATIONS, EACH PARTY’S LIABILITY FOR DAMAGES ARISING
OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES PAID BY
CUSTOMER TO CYTEL DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM; AND
CUSTOMER ACKNOWLEDGES THAT THE ABOVE REFERENCED FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT
AND THAT CYTEL WOULD NOT ENTER INTO THIS AGREEMENT ON THE TERMS HEREOF WITHOUT THESE LIMITATIONS ON ITS
- Customer understands that the results obtained from Customer’s use of, or access to, the System and Software
are solely dependent on Customer’s inputs into, and appropriate operation of, the Software. Customer agrees to
thoroughly test and verify the results obtained from its use of, or access to, the Software. Customer
acknowledges that CYTEL shall have no liability to third parties based on Customer's use of, or access to, the
Software, including any claims, suits, actions or proceedings (i) for illness or personal injury to Customer's
patients, employees, subjects, users or clients, allegedly caused by use of, or access to, the Software, (ii)
related to any clinical trial or other activity for which Customer elects to use the Software, or (iii) arising
from Customer’s use of results generated from Customer’s use of the System and Software (collectively, "Third Party Claims"). It is intended that all claims, liabilities, damages,
costs and expenses, including, without limitation, attorneys' fees (collectively, "Damages"), relating to or arising out of any Third Party Claim, the
Maintenance Services or their use has resulted in personal injury shall be covered by insurance carried by the
- Customer Indemnification of CYTEL.
Customer shall, at its own expense, indemnify, hold harmless and defend CYTEL and its affiliates, and their
respective employees, directors, officers, and agents, from and against any Third Party Claims and any Damages or
costs (including reasonable attorney's fees) incurred by CYTEL in defending itself against any such Third Party
Claims. CYTEL agrees to give Customer prompt notice of any such Third Party Claims, cooperate with Customer in
responding to such claims (at Customer’s expense), and permit Customer to control the defense or settlement of
such Third Party Claims so far as such Third Party Claims may be compromised or settled without prejudice to any
rights or interests of CYTEL.
- CYTEL Indemnification of Customer.
CYTEL shall, at its own expense, indemnify, hold harmless, and defend any claims, suits, actions or proceedings
brought against Customer based on any third party claim or allegation that Customer's use of the Software, or any
part thereof, constitutes infringement of any third party intellectual property rights; provided, that Customer
gives CYTEL prompt notice of any such claims, cooperates with CYTEL in responding to such claims, and permits
CYTEL to control the defense or settlement of such claims. If any Software becomes or, in CYTEL's opinion is
likely to become, the subject of such an infringement claim or action, CYTEL may, at its option: (a) procure, at
no cost to Customer, the right for Customer to continue using the Software; (b) replace or modify the Software to
render it non-infringing, provided there is no material loss of functionality or (c) if, in CYTEL's reasonable
opinion, neither (a) nor (b) above is commercially feasible, terminate this Agreement and refund any prepaid fees
to Customer. The foregoing states CYTEL's sole obligation and Customer's exclusive remedy in the event any such
claim or action is commenced or is likely to be commenced. Notwithstanding the foregoing provisions of this
Section 10, CYTEL shall have no liability or obligation related to infringement claims arising in whole or in part
from (1) designs, specifications, enhancements, or modifications not created by or for CYTEL; or (2) the
combination of the Software or any part thereof with other equipment, software or products not supplied by CYTEL
if such infringement would not have occurred but for such combination. THE FOREGOING SETS FORTH CUSTOMER’S SOLE
REMEDIES AND CYTEL’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE
INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Customer acknowledges that the Software and Documentation are confidential information and contain trade secrets
of CYTEL. Customer agrees to, (I) not disclose the Software or Documentation to any third party for any purpose,
and (ii) use at least the same security measures as Customer uses to protect its own confidential and trade secret
information but no less than reasonable measures to protect the confidentiality of the Software and Documentation.
Customer agrees and acknowledges that any breach of the provisions regarding ownership or confidentiality
contained in this Agreement shall cause CYTEL irreparable harm and CYTEL may obtain injunctive relief as well as
seek all other remedies available to CYTEL in law and in equity in the event of breach or threatened breach of
such provisions. On the expiration or termination of the Agreement, Customer shall promptly return to CYTEL all
copies, whether in written, electronic, or other form or media, of CYTEL’s confidential information, or destroy
all such copies and certify in writing to CYTEL that such confidential information has been destroyed. Customer’s
obligations of non-disclosure with regard to confidential information are effective as of the Effective Date and
will expire five (5) years from termination or expiration of this Agreement; 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.
- Data Usage.
Customer acknowledges that CYTEL must have access to and use of Customer Data for the Software to function as
documented, subject to the following terms:
- Customer Data: For purposes hereof, "Customer Data" shall mean
all data or other information in any
submitted to the Software by or on behalf of Customer, including data submitted by, or relating to, patients,
clinical trial subjects, health care providers or vendors of Customer. As between CYTEL and Customer, all
Customer Data shall remain the sole property of Customer.
- Subscription Use: Customer grants to CYTEL a non-exclusive, royalty-free, license to use, modify, copy,
process, display and prepare derivative works of the Customer Data for purposes of CYTEL performing its
obligations under this Agreement. Customer may, at any time, request the removal and deletion of the Customer
Data from the Software.
- Aggregate Data Use: CYTEL may create aggregated data from Customer Data that does not identify Customer
aspect of the operations of Customer. Such aggregate-level data may include data analysis across multiple CYTEL
customers and may be used for any lawful purposes, including the operations of Customer, Cytel, or to develop
industry benchmarks, measures and standards for the benefit of other CYTEL customers or publication in CYTEL
reports. Upon creation, as between CYTEL and Customer, CYTEL shall own all right, title and interest in and to
all such aggregated data.
- Data Integrity.
Customer shall ensure that its connection to, and access and use of, the System and Software and the Maintenance
Services, including, without limitation, the medium containing any data or other information provided to the
Software, including Customer Data, (i) does not include, and (ii) that any method of transmitting such Customer
Data will not introduce, any program, routine, subroutine, or data (including without limitation malicious
software or malware, viruses, worms, and Trojan Horses), in each case which may disrupt the proper operation of
the Software or any part thereof or any hardware or software used by CYTEL in connection therewith, or which, upon
the occurrence of any event, the passage of time, or the taking of or failure to take any action, will cause the
Software or any part thereof to be destroyed, damaged or rendered inoperable. Further, until such time as the
applicable Customer Data is transmitted to, or accessed or received by Company in an approved format, Customer
shall be responsible for all Customer Data submitted to the Software.
- Data Accuracy.
Customer accepts sole responsibility for: (i) the accuracy, completeness and integrity of the Customer Data; and
(ii) the programming, procedures and communication lines established and used by Customer for purposes of
internet-based or remote access to the Software.
- If Customer or any of its employees, consultants, contractors, or agents sends or transmits any communications
or materials to CYTEL or LAIYA by mail, email, telephone, or otherwise, suggesting or recommending changes to
the CYTEL intellectual property, including without limitation, new features or functionality relating thereto,
or any comments, questions, suggestions, or the like ("Feedback"), CYTEL
is free to use such Feedback
irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby
assigns to CYTEL on Customer’s behalf, and on behalf of its employees, consultants, contractors and/or agents,
all right, title, and interest in, and CYTEL is free to use, without any attribution or compensation to any
Party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the
Feedback, for any purpose whatsoever, although CYTEL is not required to use any Feedback.
- Customer 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), that prohibit or
restrict the export or re-export of the Software or any Customer Data outside the United States.
- This Agreement shall be governed by and construed in accordance with the law of the Commonwealth of
Massachusetts without regard to its conflict of laws principles. The Parties agree that this Agreement shall not
be governed by the United Nations Convention on Contracts for the International Sale of Goods. Any suit or other
legal action respecting this Agreement shall be brought exclusively in the U.S. District Court for the District
of Massachusetts, and the Parties submit to the exclusive jurisdiction of such courts for all purposes.
- All provisions of this Agreement shall be considered as separate terms and conditions, and in the event any
one shall be held illegal, invalid or unenforceable, all the other provisions hereof shall remain in full force
and effect as if the illegal, invalid, or unenforceable provision were not a part hereof, unless the provision
held illegal, invalid or unenforceable is a material provision of this Agreement, in which case CYTEL and
Customer agree to amend this Agreement with replacement provisions containing mutually acceptable terms and
- The Parties hereunder are independent contractors. Neither Party shall have any right to assume, create, or
incur any expense, liability, or obligation, express or implied, on behalf of the other Party. This Agreement is
not intended to be nor shall it be construed as a joint venture, association, partnership or other form of a
business organization or agency relationship.
- The waiver by either Party of a breach or a default of any provision of this Agreement by the other Party
shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any
delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that
it has, or may have hereunder, operate as a waiver of any right, power or privilege by such Party.
- This Agreement and the applicable Order and invoice constitute the entire agreement between the Parties with
regard to the subject matter hereof. Terms and conditions on any Customer purchase order are expressly rejected
and superseded by the terms and conditions set forth in this Agreement. No waiver, modification, alteration or
amendment of any of the terms or conditions hereof shall be effective unless and until set forth in a writing
duly signed by an officer of CYTEL and by Customer. Customer may not assign this Agreement or any of its rights
hereunder without the prior written consent of CYTEL, which consent shall not be unreasonably withheld.
- If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such
provision shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent
possible under applicable law, and such decision shall not affect the validity or enforceability of any or all
of the remaining provisions.
- If either Party commences any action or proceeding against the other Party to enforce or interpret this
Agreement, the prevailing Party in such action or proceeding shall be entitled to recover from the other Party
the actual costs, expenses and reasonable attorneys’ fees (including all related costs and expenses), incurred
by such prevailing Party in connection with such action or proceeding and in connection with obtaining and
enforcing any judgment or order thereby obtained.
- If the Software is used by Customer to obtain results that are published in a scientific journal or other
publication, Customer will acknowledge its use of the Software with an appropriate citation, which shall include
CYTEL’s full corporate name and the name of the Software product used.
- For agencies of the U.S. Government, use, duplication, or disclosure of the Software by the U.S. Government is
subject to restrictions as set forth in provisions of the Federal Acquisition Regulations applicable to
“commercial computer software” and/or computer software with “restricted rights.” The Software constitutes
“commercial computer software” and “commercial computer software documentation,” as such terms are used in the
Code of Federal Regulations. Consistent with 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end
users acquire the Software with only those rights set forth in this Agreement.
- CYTEL shall not be responsible for any failure or delay in the performance of any obligation hereunder, if
such failure or delay is due to a cause beyond CYTEL's reasonable control, including, but not limited to acts of
God, flood, fire, volcano, war, third-party suppliers, labor disputes or governmental acts.
- All notices to either Party shall be in writing and delivered by hand or by certified mail or overnight
delivery service to the address set forth by Customer or CYTEL or to such other address as either Party shall
give by notice to the other Party. Notices shall be effective when delivered to the applicable address.
- Any notice or other communication under this Agreement given by any Party to any other Party will be in
English, in writing and will be deemed properly given when sent to the intended recipient by certified letter,
receipted commercial courier or electronically receipted facsimile or e-mail transmission (acknowledged in like
manner by the intended recipient) to the respective addresses or facsimile number shown on the Order(s). Any
Party may from time to time change such address or individual by giving the other Party notice of such change in
accordance with this Section.