These Terms and Conditions to the CODEX Database License (this “Agreement“) is effective as of the date you accept these Terms & Conditions (the “Effective Date“), and is between you (referred to herein as “You” or “Licensee”) and Certara USA, Inc. (“Licensor“).
LICENSOR SHALL PROVIDE ACCESS TO THE DATABASE DESCRIBED ON EXHIBIT A (“DATABASE”) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM BY CLICKING THE “ACCEPT” BUTTON YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT, IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT HAVE ACCESS TO THE DATABASE.
- License Grant. Subject to and conditioned on Your compliance with the terms and conditions of this Agreement, Licensor hereby grants you a non-exclusive, non-sublicensable, non-transferable license during the Term (defined in Section 8 below) to use the Database and the CODEX interface solely for Licensee’s internal business purposes and in accordance with applicable law, and you shall not sell, assign, or transfer the Database (or data therein) or use the Database in connection with providing services for profit (the “Permitted Use“). The total number of users will not exceed the limits set forth in Exhibit A, except as expressly agreed to in writing by the Parties.
- Use Restrictions. You shall only use the Database for the Permitted Use and shall not disclose, release, distribute, or deliver the Database, or any portion thereof, to any third party without Licensor’s prior written consent. Any purpose or use not specifically authorized herein is prohibited unless otherwise agreed to in writing by Licensor. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, You shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Database; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Database; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of the Database or methods used to compile the Database, in whole or in part; (iv) remove any proprietary notices included within the Database; (v) publish, enhance, or display any compilation or directory based upon information derived from the Database; or (iv) use the Database in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Database.
- Delivery. Licensor shall deliver the Database electronically through user names and passwords to access an online platform referred to as Certara outcomes database exchange (“CODEX”).
- Fees. You shall pay Licensor the fees (“Fees“) set forth in Exhibit A without offset or deduction. Licensee shall make all payments hereunder in US dollars on or before the due date set forth in Exhibit A.
- Confidential Information and Database Security.
- Confidential Information. The Database will be deemed “Confidential Information” of Licensor. Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to You at the time of disclosure; (iii) rightfully obtained by You on a non-confidential basis from a third party; or (iv) independently developed by You. You shall not disclose the Confidential Information to any person or entity, except to Your employees who have a need to know the Confidential Information for You to exercise Your rights or perform Your obligations hereunder. On the expiration or termination of the Agreement, You shall promptly destroy all copies, whether in written, electronic, or other form or media, of the Confidential Information.
- Database Security. You shall use all reasonable legal, organizational, physical, administrative, and technical measures, and security procedures to safeguard and ensure the security of the Database and to protect the Database from unauthorized access, disclosure, duplication, use, modification, or loss.
- Intellectual Property Ownership. You acknowledges that, as between You and Licensor, Licensor owns all right, title, and interest, including all intellectual property rights, in and to the Database. You further acknowledges that: (a) the Database is an original compilation protected by United States copyright laws; (b) Licensor has dedicated substantial resources to collect, manage, and compile the Database; and (c) the Database constitutes trade secrets of Licensor.
- Disclaimer of Warranties. THE DATA IS PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE DATA, OR ANY PRODUCTS OR RESULTS OF ITS USE, WILL MEET LICENSEE’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.
- Indemnification. You agree to indemnify, hold harmless, and, at Licensor’s option, defend Licensor from and against any and all losses, damages, liabilities, or costs (including reasonable attorneys’ fees) (“Losses“) incurred by Licensor resulting from any third party claim, suit, action, or proceeding (“Third Party Claim“) based on Your: (i) negligence or willful misconduct; (ii) use of the Database in a manner not authorized by this Agreement; (iii) failure to comply with applicable law and regulations; (iv) any person’s injury or death relating to Your products or materials.
- Limitations of Liability. IN NO EVENT WILL LICENSOR BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, (b) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (c) LOSS OF GOODWILL OR REPUTATION, (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA OR BREACH OF DATA OR SYSTEM SECURITY, OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL LICENSOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Term and Termination.
- Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect for 6 months.
- Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
- either Party may terminate this Agreement, effective upon sixty (60) days’ advance written notice to the other Party, if the other Party materially breaches a term of this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured for thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
- either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Upon the occurrence of any of the foregoing, Licensee must notify Licensor of the occurrence of such event by sending an e-mail to: Notice@certara.com.
- Effect of Expiration or Termination. Upon Your breach of this Agreement that goes uncured, the license granted hereunder will also terminate, and, without limiting Your obligations under Section 3, You shall cease using and delete, destroy, or return all copies of the Database and certify in writing to the Licensor that the Database has been deleted or destroyed and shall no longer be entitled to or have access to CODEX.
- Survival. Any rights, obligations, or required performance of the parties in this Agreement which, by their express terms or nature and context are intended to survive termination or expiration of this Agreement, will survive any such termination or expiration, including the rights and obligations set forth in this Section 8(d) and Section 1, Section 3, Section 4, Section 6, Section 7, and Section 9.
- Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter hereof agreements, representations, proposals, discussions, communications and terms and conditions between the Parties, whether oral or in writing, including but not limited to any and all terms contained within confidentiality and nondisclosure agreements, purchase orders, and other contracts including, but not limited to, any separate confidentiality, security or privacy requirements agreed to by the Parties unless explicitly referenced and agreed to by the Parties hereto. Any subsequent statement or representation by any Certara employee that purports to amend or modify the terms of this Agreement or create additional terms, shall be null and void. This Agreement may be amended only in writing and executed by a duly authorized representative of each Party. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
- All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses provided by each respective party to the other from time to time.
- Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
- Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States withn the State of Delaware and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- Assignment. Neither Party may assign this Agreement or delegate any of its obligations hereunder without the prior written consent of the other Party, provided, however, that: (i) Licensor may assign this Agreement to a successor corporation without Your consent in the event of a merger or acquisition of all or substantially all of its assets; and (ii) Licensor may assign, with reasonable notice, any of its rights or delegate any of its obligations hereunder to one or more of its affiliates without the Licensee’s consent.
- Export Regulation. The Database may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Database to, or make the Database accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee 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), prior to exporting, re-exporting, releasing, or otherwise making the Database available outside the US.
Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.
- DESCRIPTION OF DATABASES IN THE DATABASE
The COVID-19 Clinical Outcomes Database includes the following:
- Studies (>10 patients) that evaluate specific treatment options to improve disease outcome. This includes randomized controlled trials, non-randomized controlled, uncontrolled, and retrospective cohorts
- All patient characteristics, viral load, biomarkers, efficacy, and safety
- Studies (cohorts>100 patients) that evaluate patient characteristics stratified by outcome (independent of treatment)
- Studies (n>10 patients) that report the time course of viral load, vital signs, and biomarkers
The CODEx platform provides online access, filtering and graphical and tabular summarization of data across studies.
- NUMBER OF USERS
Access to the Databases are through CODEX with up to one (1) named users per database. Additional users may be added by paying an additional user fee.
$500 per user for 6 months of access to the COVID-19 Clinical Outcomes Database.