THIS MASTER SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) GOVERNS LICENSEE’S ACQUISITION AND USE OF SERVICES FROM DECIBIO CONSULTING, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (“DECIBIO”). BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL SIGNING THE ORDER FORM FOR LICENSEE IS SIGNING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY.
Certain capitalized terms used in this Agreement, not otherwise defined on the Order Form, will have the meanings set forth below.
A. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
B. “Authorized User” means any individual authorized by Licensee to access the Services in compliance with this Agreement.
C. “Code” means computer programming code of the Licensee Data including, without limitation, Source Code and Object Code, which are defined as follows:
D. “Source Code” means the human-readable form of the computer programming code of the subscription Services and modifications thereto, including all comments and any procedural code such as job control language statements.
E. “Object Code” means the machine-readable form of the computer programming code of the subscription Services and modifications thereto.
F. “Licensee” means the company or organization identified in an Order Form purchasing the DeciBio Services.
G. “Licensee Data” means the data, information, and content provided by Licensee and/or Authorized Users through the Services or otherwise collected by DeciBio in its performance of the Services.
H. “Documentation" means DeciBio’s user manuals and/or documentation related to the Services and made available to Licensee, when applicable.
I. “Initial Service Term” means the period of time between the Start Date specified in each Order Form and the expiration of the Service Length specified therein.
J. “Laws” means all applicable laws, statutes, regulations, and rules.
K. “MSA Term” means the period of time between the date Licensee first executes an Order Form (“Effective Date”) and continues until all subscriptions and services due hereunder have expired or been terminated.
L. “Order Form” means an ordering document or online order specifying the DeciBio Services to be provided hereunder, all applicable fees, the Service Length, and Licensee contact information and is entered into between Licensee or any of its Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original Party hereto.
M. “Party” means either DeciBio or Licensee individually, and “Parties” refers to DeciBio and Licensee collectively.
N. “Renewal Service Term” means the successive periods following the Initial Service Term.
O. “Services” means subscription service(s) to DeciBio’s applicable data intelligence products made available online or integrated into Licensee’s operating environment by DeciBio plus any applicable ancillary services, which services are purchased or otherwise contracted for under an Order Form.
P. “Service Length” means the duration specified in each Order Form for the provision of the Services.
Q. “Service Term” means the Initial Service Term along with any Renewal Service Terms, collectively.
R. “Start Date” means the date specified on each Order Form as the commencement of the DeciBio Services.
S. “Upgrades” means any upgrades, modifications, or new releases of the Services generally made available by DeciBio to its customers, in DeciBio’s sole discretion.
This Agreement governs DeciBio’s provision of services to Licensee, subject to one or more ordering documents (each such document, an Order Form) describing the Services, each of which incorporates this Agreement by reference. In order to be binding, each Order Form must be signed by both Parties. The Parties may add Order Forms from time to time, during the MSA Term.
(A) License to Services. Subject to the terms and conditions of this Agreement and associated Order Forms, DeciBio grants to Licensee, during the MSA Term, a royalty-free, non-exclusive, non-transferable, non-sublicensable, license to access and use the Services Licensee orders solely for the purposes described on the applicable Order Form(s) (“License”).
(B) Restrictions on Use of Services. The Services are licensed to Licensee for Licensee’s internal use only. In connection with Licensee’s use of the Services, Licensee will comply with all applicable laws, rules and regulations. Licensee will not, and will not permit any third party to: (i) copy, modify, translate, or create derivative works of the Services, disclose, sublicense, display, loan, publish, transfer possession or otherwise disseminate the Services; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Services; (iii) lend, lease, offer for sale, sell or otherwise use the Services for the benefit of third parties, excluding Licensee’s Affiliates; or (iv) attempt to circumvent any license, timing or use restrictions that are built into the Services.
(C) DeciBio Ownership of Services. Except for the rights granted in Section 3(A) above, DeciBio retains all right, title and interest, including all intellectual property rights, in and to the Services. Licensee acknowledges that the Services include DeciBio’s valuable trade secrets and improper use or disclosure may cause DeciBio irreparable harm. Accordingly, Licensee agrees to use the Services solely as authorized in this Agreement. Licensee further acknowledges that the license granted pursuant to this Agreement is not a sale and does not transfer to Licensee title or ownership of the Services or a copy of the Services, but only a right of limited use. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO DECIBIO.
(A) DeciBio’s Responsibilities. DeciBio will make the Services available in a professional, commercially diligent basis, in accordance with the generally accepted industry and professional standards, procedures and practices, to the reasonable satisfaction of Licensee. DeciBio will provide the Services only in accordance with applicable laws and government regulations. DeciBio will maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Licensee Data.
(B) Upgrades. During the MSA Term, and as long as Licensee is current on its payment obligations hereunder, DeciBio will make available to Licensee any Upgrades at no additional charge.
(C) Licensee Responsibilities. Licensee will (i) be responsible for its (and, as applicable, its personnel’s) compliance with this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify DeciBio immediately of any such unauthorized access and/or use of which Licensee becomes aware, and (iii) use the Services only in accordance with this Agreement and all applicable laws and government regulations. Licensee will not (a) make the Services available to any third party, (b) sell, resell, rent or lease the Services, (c) interfere with or disrupt the integrity or performance of the Services or any third-party data contained on the Services, including, as applicable, the third-party data of Licensee’s employees, or (d) attempt to gain unauthorized access to the Services or their related systems or networks.
(A) Licensee will pay DeciBio the fees described on the applicable Order Form(s) (the “Fees”). Unless another date is indicated in an Order Form, payments are due within sixty (60) days of receipt of an invoice. Payment obligations are non-cancelable and, subject to Section 7 below, fees paid are non-refundable. Licensee will make all payments in United States Dollars.
(B) Modifications. Licensee acknowledges that DeciBio reserves the right to modify the Fees by providing Licensee thirty (30) days written notice (the “Initial Notice”); provided, however that Licensee may terminate this Agreement if it objects to such changes in written notice to DeciBio within thirty (30) days of the Initial Notice. Fee changes with respect to Services will not become effective until the expiration of the then current term.
(C) Payment Terms. For all Fees, Licensee will provide DeciBio with a valid check, credit card, or alternative document reasonably acceptable to DeciBio. Licensee is solely responsible for providing DeciBio accurate and complete billing and contact information and for notifying DeciBio of any changes to such information.
(D) Overdue Charges. Late Fee payments will accrue late interest at the rate of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
(E) Taxes. Licensee will be responsible for payment of all sales, use, property, value-added, withholding, or other federal, state or local taxes except for taxes based solely on DeciBio’s net income. If DeciBio is required to pay any such taxes based on the licenses granted in this Agreement or on Licensee’s use of the Services, then such taxes will be billed to and paid by Licensee. For the avoidance of doubt, all Fees listed herein are exclusive of New York State Sales Tax.
(A) As used herein, "Confidential Information" means all confidential information disclosed by a Party ("Disclosing Party") or otherwise made available to the other Party ("Receiving Party") under this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, but not limited to, Licensee Data, the Services, business and marketing plans, technology and technical information, product plans and designs, research, strategies, inventions, processes, formulas, technologies, business processes, designs, drawings, finances, the Services’ Source Code, business processes, and other nonpublic information or trade secrets, and business processes that such Disclosing Party treats as proprietary or confidential. However, Confidential Information (other than Licensee Data) will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
(B) The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have previously agreed in writing, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those set forth herein. Neither Party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and its legal counsel and accountants without the other Party’s prior written consent.
(C) The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
(D) Receiving Party’s obligations of non-disclosure and non-use in this Agreement will survive in full force and effect for a period of five (5) years from the date of expiration or termination of this Agreement; provided, however, that the non-disclosure and non-use obligations imposed by this Agreement with respect to trade secrets included in Disclosing Party’s Confidential Information will continue in perpetuity. Upon the request of Disclosing Party, Receiving Party will promptly (i) destroy any and all copies of Disclosing Party’s Confidential Information, and (ii) provide a written certification to Disclosing Party regarding such destruction. Receiving Party may, however, retain one (1) copy of Disclosing Party’s Confidential Information in its confidential files, solely for the purpose of monitoring its continuing obligations of confidentiality under this Agreement. Any Confidential Information retained will remain subject to the confidentiality obligations of this Agreement.
(E) Receiving Party agrees that (i) Disclosing Party may be irreparably injured by a breach of this Agreement by Receiving Party; (ii) money damages may not be an adequate remedy for any such breach; (iii) as a remedy for any such breach Disclosing Party will be entitled to seek equitable relief, including injunctive relief and specific performance, without being required by Receiving Party to post a bond; and (iv) such remedy may not be the exclusive remedy for any breach of this Agreement. Upon termination or expiration of the License granted under this Agreement, upon written request of the other party, each Party shall deliver to the other Confidential Information of the other Party that is in its possession except that one copy may be kept for legal archival purposes.
(A) Term of Agreement. This Agreement takes effect on the date Licensee first signs an Order Form incorporating these terms and will remain in effect until all applicable Order Forms have expired or been terminated.
(B) Term of Subscriptions. The term of each Service subscription will be described in the applicable Order Form.
(C) Termination. If either Party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other Party may terminate this Agreement, provided that the terminating Party gives the breaching or defaulting Party written notice of termination specifying the underlying breach or default within 30 days of discovery of such breach or default, and such breach or default remains uncured 30 days after the breaching or defaulting Party receives the notice.
In the event of termination of the License pursuant to a breach of Section 3(B) above, Licensee shall return the Licensee Data and Documentation or shall certify in writing by Licensee that all copies have been destroyed and/or deleted from Licensee’s computer memory, disks, libraries, or other media and data storage facilities and Licensee is no longer in possession of a copy of any Licensee Data.
(D) Effect of Termination. Upon expiration or termination of this Agreement for any reason, the rights, licenses and access to the Services granted to Licensee under this Agreement will immediately terminate. If this Agreement expires, or if DeciBio terminates this Agreement pursuant to Section 7(C) above, all accrued and unpaid Fees will become immediately due and payable to DeciBio. If Licensee terminates this Agreement pursuant to Section 7(C) above, DeciBio will provide Licensee with a pro-rated refund of any prepaid Fees covering the period from the date of termination through the end of the Term. In no event will expiration or termination of this Agreement relieve Licensee of any obligation to pay Fees payable for the period prior to the date of termination.
(E) Survival. All terms and provisions of this Agreement, including any exhibits, which by their nature are intended to survive any termination or expiration of this Agreement, will so survive. This includes, but is not limited to, the provisions of Sections 9 (Warranty) and 11 (Indemnification) below.
Each Party represents and warrants to the other Party that: (A) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (B) it has the right, power and authority to enter into this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (C) the execution of any Order Form(s) incorporating this Agreement by its representative whose signature is set forth therein has been duly authorized by all necessary corporate or organizational action of the Party; (D) when any Order Form incorporating this Agreement is executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (E) it will abide by all applicable federal, state and local laws and regulations with respect to online activities, use of end user data and the products and services offered by each Party in connection with this Agreement.
(A) DeciBio shall perform all Services in accordance with all applicable descriptions and specifications. All such Services shall be performed in a professional, commercially diligent basis, in accordance with the generally accepted industry and professional standards, procedures and practices, to the reasonable satisfaction of Licensee.
(B) THE REPRESENTATIONS AND WARRANTIES OF DECIBIO SET FORTH IN THIS AGREEMENT WITH RESPECT TO THE LICENSEE DATA AND SERVICES ARE IN LIEU OF ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(C) DeciBio represents and warrants that DeciBio will comply, in all material respects, with all applicable laws, regulations, and orders. In addition, DeciBio will comply with all reasonable and applicable Licensee guidelines, such as standard operating procedures, that Licensee provides in writing.
IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED FEES PAID BY LICENSEE TO DECIBIO PURSUANT TO THIS AGREEMENT. EXCEPT FOR A BREACH OF THE LICENSE RESTRICTIONS OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR LOSS OR INTERRUPTION OF USE OF ANY FILES, DATA OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
(A) Each Party (“Indemnifying Party”) will indemnify, defend and hold the other Party (“Indemnified Party”) harmless from any third party claim, action, suit or proceeding made or brought against the Indemnified Party arising out of or related to the Indemnifying Party’s breach of any term of this Agreement.
(B) DeciBio will indemnify, defend and hold Licensee harmless from any third party claim, action, suit or proceeding made or brought against Licensee alleging that Licensee’s use of the Services in accordance with this Agreement infringes such third party’s intellectual property rights (an “Infringement Claim”). In the event of an Infringement Claim, DeciBio may, at its sole option and expense: (i) procure for Licensee the right to continue use of the Services or infringing part thereof; or (ii) modify or amend the Services or infringing part thereof, or replace the Services or infringing part thereof with other software having substantially the same or better capabilities; or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and repay to Licensee the Fees for the then applicable Service Term. DeciBio will have no liability for an Infringement Claim if the actual or alleged infringement results from (i) Licensee’s breach of this Agreement, (b) Licensee’s modification, alteration or addition made to the Services or any use thereof, including any combination of the Services with software or other materials not provided by DeciBio, (c) Licensee’s failure to use any corrections or modifications made available by DeciBio that would avoid such infringement and not result in any material loss of functionality, or (d) use of the Services in a manner or in connection with a product or data not contemplated by this Agreement. DeciBio also disclaims any liability for settlements entered into by Licensee or costs incurred by Licensee in relation to an Infringement Claim that are not pre-approved by DeciBio in writing. THIS SECTION STATES THE ENTIRE LIABILITY OF DECIBIO WITH RESPECT TO ANY INFRINGEMENT CLAIM.
(C) Licensee will indemnify, defend and hold DeciBio harmless from any third party claim, action, suit or proceeding (i) made or brought against DeciBio involving allegations that Licensee breached any of its representations, warranties or obligations under this Agreement, or (ii) arising out of or resulting from DeciBio’s use of any Licensee Data in accordance with this Agreement.
(A) Assignment. Neither Party may assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of the other Party, which such consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, either Party may assign this Agreement to a parent, Affiliate, subsidiary, or successor to its business, if any. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section will be null and void.
(B) Any notice required to be given hereunder shall be in writing and deemed to have been sufficiently given (i) when delivered in person, (ii) on the fifth business day after mailing by registered or certified mail, postage prepaid, return receipt requested, or (iii) on the next business day after mailing by overnight courier service, to the addresses specified below.
If to DeciBio:
DeciBio Consulting LLC
10203 Santa Monica Blvd., Ste. 400
Los Angeles, CA 90067
If to Licensee: to the applicable address stated on the Order Form.
(C) Waiver of Jury Trial. In any controversy or claim, whether based in contract, tort or other legal theory, arising out of or relating to this Agreement, Order Forms, or any related documents, their negotiation, enforceability or validity, or the performance or breach thereof or the relationships established thereunder, all Parties hereby waive their right to trial by jury.
(D) No Agency. Neither Party shall represent itself as the agent or legal representative of the other Party or as joint venturers for any purpose whatsoever, and neither shall have any right to create or assume any obligations of any kind, express or implied, for or on behalf of the other in any way whatsoever.
(E) U.S. Government Rights. The Services and Documentation may be deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and 252.227-7014(a)(1) and FAR Sections 12.211 and 12.212(b), as applicable, and any successors thereto. Any use, modification, reproduction, release, performance, display, or disclosure of the Services by the U.S. Government shall be governed solely by the terms of this Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with DeciBio to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
(F) Export Regulations. Licensee agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, Licensee covenants that it will not -- directly or indirectly -- sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from DeciBio under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Licensee agrees to indemnify, to the fullest extent permitted by law, DeciBio from and against any fines or penalties that may arise as a result of Licensee’s breach of this provision.
(G) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.
(H) Governing Law and Jurisdiction. This Agreement is governed by and construed under the laws of the State of California without reference to conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts of California, and the Parties agree and submit to the exclusive jurisdiction and venue of these courts.
(I) Modification and Waiver. No waiver or modification of this Agreement will be valid unless made in writing and signed by both Parties. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof.
(J) Entire Agreement. This Agreement, together with the Order Forms, embodies the entire understanding of the Parties and supersedes any previous or contemporaneous communications, whether oral or written; and may be amended only by a writing signed by both Parties.
February 11, 2020