Academic License Agreement

OpenEye Scientific Software, Inc.
Academic License Agreement

THIS IS A LEGAL CONTRACT – PLEASE READ IT CAREFULLY. BY CLICKING ON THE “I AGREE (E-SIGN)” LINK BELOW, YOU OR YOUR ACADEMIC INSTITUTION (“LICENSEE”) ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT (“AGREEMENT”) WITH OPENEYE SCIENTIFIC SOFTWARE INC. (“OPENEYE”) FOR THE SOFTWARE (AND DOCUMENTATION) PROVIDED BY OPENEYE TO YOU IN CONNECTION WITH THIS AGREEMENT (“SOFTWARE”) -- AND IF YOU ARE INSTALLING THE SOFTWARE ON BEHALF OF AN ACADEMIC INSTITUTION, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ACADEMIC INSTITUTION, AND BIND SUCH ACADEMIC INSTITUTION TO THE TERMS HEREOF. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, OR YOU ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR ACADEMIC INSTITUTION, THEN OPENEYE IS NOT WILLING TO GRANT YOU A LICENSE TO THE SOFTWARE AND YOU MUST CLICK ON THE “I DO NOT AGREE (CANCEL)” LINK BELOW, AND YOU MUST NOT DOWNLOAD ANY OPENEYE SOFTWARE.

I. LICENSE GRANT

During the term of this Agreement (as set forth in the “TERM AND TERMINATION” section below), and subject to Licensee’s strict compliance with the terms of this Agreement, OpenEye grants to the Licensee a limited, personal, nonexclusive and non-transferable (with no right to sublicense) right and license to use any software product that OpenEye chooses to make available to Licensee (in OpenEye’s sole discretion) in connection with this Agreement (“Software”), and accompanying documentation ("Documentation"), solely in the manner described below under "SCOPE OF LICENSE GRANT."

II. ACADEMIC LICENSE ELIGIBILITY

The OpenEye Software Academic License ("Academic License") is contingent on the eligibility of the Licensee, determined solely by OpenEye, based on OpenEye Academic Licensing Policy, below, and contingent on the continued accuracy of the pertinent information provided by the Licensee. Any determination of academic eligibility, and the OpenEye Academic Licensing Policy, may be changed at any time without prior notice, at OpenEye's sole discretion. If, at any time during the term of this Agreement, Licensee’s becomes ineligible for this Academic License, then this Agreement shall immediately terminate as of the date of such ineligibility.

III. GOAL

OpenEye Academic Licensing Policy ("Policy") is designed to foster and support bona fide academic research. To this end OpenEye provides Academic Licenses at no cost to Licensee solely for Academic Research as defined below.

IV. ACADEMIC MEANS NON-COMMERCIAL

OpenEye issues no-cost Academic Licenses solely for non-commercial use. The reality of the modern world is that academic research is seldom non-commercial. Compounds are designed and licensed to major pharmaceutical companies. Discoveries lead to university spin-offs. Collaborations with commercial entities blur the lines of public and private research. Software, sometimes competing with OpenEye’s offerings, is written and distributed, licensed or patented. OpenEye appreciates this complexity and lists the expected and required behavior by the Licensee in any of the following situations in order for Licensee to be in compliance with the terms of this Agreement:

1. Contract Research, (i.e. the Software is used for the express benefit of a commercial partner of Licensee, e.g. including, but not limited to virtual screening, database preparation or crystallographic refinement). OpenEye requires that the commercial partner either have current (and actively maintained) licenses from OpenEye or purchase the appropriate licenses from OpenEye before Licensee makes any use of the Software for such commercial partner. It is the responsibility of Licensee to verify such licenses are in place before engaging in any such use of the Software.
   
2. Drug-design. OpenEye wishes any academic group well in its efforts to improve the well- being of mankind. If the Software is used in the process of discovery for which a university, department or research group eventually receives a revenue stream (e.g. license fee, royalty, etc.), OpenEye requires, and Licensee agrees to acquire from OpenEye, a commercial license to OpenEye's Annual Package, for a fee to be calculated as follows: the then-current pricing of the commercial Annual Package multiplied by the number of years (or portions thereof) for such period of discovery. If the Licensee is unable to pay the required licensing fees upfront, the licensing fee may be paid out as draw on the resulting revenue at a rate of no less than 20% per year until the total fee is paid. The Licensee’s obligations under this subsection shall survive termination of this Agreement for a period of five (5) years.
   
3. Software Development. Software that incorporates or is built on OpenEye applications or toolkits (“Derived Software”) for redistribution to other parties. End users of the Derived Software must obtain the appropriate licenses from OpenEye or, in the case of such software becoming commercial, that the Licensee negotiates an equitable royalty with OpenEye. It is the responsibility of Licensee to verify such licenses are in place before Licensee provides the Derived Software to each End user.
   
4. Public database generation. Licensee must obtain a written waiver from OpenEye to include information generated by the Software in a publicly accessible database. Such a waiver must be obtained for each such database. In general, OpenEye encourages the use of its tools to improve the quality of available public data.
   
5. Public web sites. Licensee must obtain a written waiver from OpenEye to create a publicly accessible website that includes either data generated by the Software or remote access to the Software. Proper attribution for the Software licenses used to create the web site is required.
   
6. Comparison studies. OpenEye requires prior written notification of any publication comparing OpenEye’s methods to those of others. OpenEye encourages communication as to the purpose and conclusions of any such work before publication. OpenEye reserves the right to restrict the term of any licenses granted for this purpose.
   
7. Reverse Engineering. Licensee must not decode, decompile, merge, modify, translate, reverse engineer or otherwise alter the Software for any purpose. OpenEye reserves the right to both immediately terminate any and all licenses granted by OpenEye to individuals, research groups and even institutions that acquire licenses for the purpose of producing comparable software or features, and to seek recompense via the appropriate judicial channels for breach of this provision (as well as any other remedies available to OpenEye at law or in equity).
   
8. Other Prohibited Use. OpenEye reserves the right to terminate any and all licenses granted by OpenEye to individuals, research groups and even institutions whose use of OpenEye's software is deemed by OpenEye to compete with OpenEye's software or business.
   

V. SCOPE OF ELIGIBILITY

Eligibility for Academic Licensing will be determined by OpenEye for each individual research group, unless otherwise specified. Thus, eligibility may differ among distinct research groups within a single degree granting institution, and Academic Licenses will only apply to the research group of a specific individual (“Principal Investigator”). Eligibility is not permanent; eligibility will be reevaluated periodically, and Academic Licenses may be terminated at the sole discretion of OpenEye.

VI. CHANGES TO POLICY

OpenEye reserves the right to change its academic licensing policy at any time, at its sole discretion, without prior notice. OpenEye shall provide to Licensee a written update containing the changes to such policy and if any such changes are unacceptable to the Licensee, Licensee shall provide written notice thereof to OpenEye and the Academic License shall immediately terminate as of the date of such written notice.

VII. SCOPE OF LICENSE GRANT

Subject to Licensee’s strict compliance with the terms of this Agreement, Licensee may download and install the Software, and use the Software on computers at Licensee’s research site. Licensee may not, nor may Licensee allow any third party to: disable or bypass any time limitation mechanism contained in the Software; modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software; rent, lease, grant a security interest in, or otherwise transfer rights to the Software; or remove any proprietary notices or labels on the Software. Licensee may not allow anyone other than the Principal Investigator and the immediate members of their research group to use the Software. Licensee may not allow the Principal Investigator or their group members, or anyone else, to use the Software in any manner other than according to the terms of this Agreement.

VIII. NO WARRANTY

THE SOFTWARE AND DOCUMENTATION ARE PROVIDED SOLELY ON AN "AS IS" BASIS WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, OPENEYE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY, REGARDING THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTIES' RIGHTS. LICENSEE UNDERSTANDS AND AGREES THAT ANY AND ALL USE OF THE SOFTWARE AND DOCUMENTATION BY LICENSEE IS AT LICENSEE’S SOLE RISK.

IX. NO SUPPORT

No support is provided with an Academic License. OpenEye may, at its own discretion and at its own schedule, review the merit of any reported issues, requests for enhancement or questions about usage and deliver a response if appropriate and resources permit.

X. TITLE

Title, ownership rights, and intellectual property rights in the Software and Documentation shall, at all times, remain in OpenEye and its suppliers. All rights not expressly granted by OpenEye under this Agreement are reserved by OpenEye and its suppliers. The Software and Documentation are protected by copyright and other intellectual property laws and by international treaties.

XI. NONDISCLOSURE

Licensee acknowledges that the Software and the Documentation are the confidential and proprietary information of OpenEye and/or its suppliers. Licensee shall use at least the same degree of care in safeguarding the confidential information as Licensee uses in safeguarding Licensee’s own sensitive confidential information, but, in no event, less than reasonable care. Without limiting the foregoing, Licensee shall take reasonable steps to maintain the confidential and trade secret status of the Software, Documentation and other proprietary OpenEye information and materials provided to Licensee. The Licensee’s obligations under this section shall survive termination of this Agreement for a period of five (5) years.

XII. TERM AND TERMINATION

Unless otherwise agreed upon in writing by OpenEye, the term of this Agreement shall commence on the date that Licensee enters into this Agreement, and, unless otherwise earlier terminated as set forth in this Agreement, shall continue for one (1) year thereafter. Upon reevaluation of eligibility, OpenEye may choose to renew this agreement for additional one-year periods, in which case OpenEye shall provide written notice thereof to Licensee. Licensee may terminate this Agreement at any time by providing written notice thereof to OpenEye. Pursuant to the section "ACADEMIC LICENSE ELIGIBILITY", OpenEye may terminate an Academic License without prior notice and at OpenEye’s sole discretion. In addition, this license shall automatically and immediately terminate if Licensee fails to comply with the terms and conditions described herein. Upon termination due to commercialization, pursuant to the section "ACADEMIC MEANS NON- COMMERCIAL," the Licensee shall purchase an appropriate commercial license and execute a standard licensing agreement with OpenEye. Upon termination or expiration of this Agreement for any other reason, the Licensee will destroy (or delete from its computer systems) all copies of the Software and Documentation in Licensee’s possession or under Licensee’s control. Without limiting the foregoing, Licensee acknowledges that the licenses granted under this Agreement immediately terminate upon any termination or expiration of this Agreement (and in order to make any further use of the Software and Documentation, Licensee must obtain another license from OpenEye, which may be provided or withheld by OpenEye depending on the nature of the termination). Licensee’s confidentiality obligations, and the Sections titled “DRUG DESIGN”, “NO WARRANTY”, “TITLE”, “LIMITATION OF LIABILITY”, “TERM AND TERMINATION” and “GENERAL” shall survive any termination or expiration of this Agreement.

XIII. EXPORT CONTROLS

The Software and related technology may not be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan, Syria, or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By installing or using the Software, Licensee is agreeing to the foregoing and representing and warranting that they are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, The Licensee agrees to comply with any other applicable U.S. export control laws and any local laws in their jurisdiction that may impact the right to import, export, or use the Software. By entering into this Agreement, Licensee is also representing and warranting that they will not use, or permit or authorize others to use, the Software in connection with the design, development, production, stockpiling or use of any chemical or biological weapons.

XIV. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL OPENEYE OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, WHETHER FORESEEABLE OR NOT, EVEN IF OPENEYE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION (INCLUDING, WITHOUT LIMITATION ANY CLAIMS BROUGHT BY A THIRD PARTY), WILL OPENEYE OR ITS SUPPLIERS OR RESELLERS BE LIABLE UNDER THIS AGREEMENT FOR ANY DAMAGES IN EXCESS OF THE AMOUNT RECEIVED FROM LICENSEE FOR A LICENSE TO THE SOFTWARE OR FIFTY U.S. DOLLARS ($50), WHICHEVER IS GREATER, THE LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

XV. U.S. GOVERNMENT END USERS.

The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth in this Agreement.

XVI. GENERAL

This Agreement will be governed by the laws of the State of New Mexico in the United States of America, without giving effect to any conflict of laws rules or principles that would require the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Federal and State Courts located in New Mexico shall have sole jurisdiction over any disputes arising hereunder (except with respect to actions for enforcement of intellectual property rights, which may be brought in any court of competent jurisdiction) and the parties hereby irrevocably submit to the personal jurisdiction of such courts. The parties agree that venue for any suit shall be proper in Santa Fe County, New Mexico. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, that provision will be conformed to a valid, legal and enforceable provision that best accomplishes the original intent of the parties, and the remaining provisions will remain in full force. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Licensee may not assign or transfer any of Licensee’s rights or obligations under this Agreement to a third party without the prior written consent of OpenEye (which may be granted or withheld at OpenEye’s sole discretion). Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement is the complete and exclusive statement of the agreement between the parties regarding the subject matter hereof and supersedes and replaces any proposal or prior or contemporaneous agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. This Agreement may be amended only by a writing executed by both Licensee and OpenEye.