Master Software License Agreement - DLB Systems and Breast Cancer International Research Group
DLB SYSTEMS
MASTER SOFTWARE LICENSE AGREEMENT
Agreement Date: July 31, 1999
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FOR AND IN CONSIDERATION of the mutual benefits accruing and expected
to accrue hereunder, DLB Systems, (a business unit of Premier Research
Worldwide, Ltd., a Delaware corporation) with principal offices at 1200 Route 22
East, Bridgewater, New Jersey 08807 (hereinafter referred to as "DLB"), and
Breast Cancer International Research Group, with principal offices in Edmonton,
Alberta Cancer (hereinafter referred to as "Licensee"), intending to be legally
bound, hereby enter into this License Agreement (the "Agreement"):
1. PREAMBLE
1.1 This agreement sets forth the terms and conditions under which
Licensee is licensed to use DLB Software (hereinafter referred
to as this "Agreement"). This Agreement grants to Licensee the
non-exclusive, non-transferable, non-assignable right to use
the specified Software in object code form, only on the
designated computer at the specified installation location, as
more fully set forth in the applicable Rider.
1.2 DLB hereby provides and Licensee hereby accepts: (i) grant of
license for use; and (ii) delivery in object code form of the
DLB Software product(s) listed herein, subject to the
following terms and conditions.
2. TERM OF AGREEMENT
2.1 This Agreement shall commence on the date it has been executed
by DLB, and shall continue until terminated in accordance with
Paragraph 5, "Term of License", or Paragraph 13, "Default and
Termination."
2.2 A Rider annexed to this Agreement shall identify the Software
being licensed.
2.3 Effective on the execution by both parties of any Rider
referencing this Agreement, it and this Agreement shall
replace and supersede any prior licenses or agreements between
the parties relating to the licensing of the Software
specified therein. The provisions of the Rider and this
Agreement thereafter shall govern and control.
3. DEFINITIONS
3.1 "Annual Maintenance Fee" means the fee paid by Licensee which
entitles Licensee to receive maintenance.
3.2 "Computer" means the actual computer on which the Software is
to be installed, as set forth in the applicable Rider. (The
Computer may also be referred to as CPU or Server.)
3.3 "Delivery Date" means the date by which the Software shall be
delivered to the Installation Location.
3.4 "Installation Location" means the physical location of the
Computer upon which the Software is to be installed, as set
forth in this Agreement.
3.5 "License" means the non-exclusive, non-transferable,
non-assignable right to use the Software hereby granted by DLB
to Licensee in accordance with this Agreement.
3.6 "Price List" means one or more lists published by DLB from
time to time which specify license fees, maintenance fees and
other charges made by DLB.
3.7 "Rider" means a document executed by both parties, which
refers to and incorporates the general terms and conditions of
this Agreement and any additional terms contained therein.
3.8 "Software" means the specific software items being licensed
and associated written documentation. (The Software may
sometimes be referred to as "Product").
3.9 "User(s)" means a specific designated user of the Software.
4. LICENSE AND PERMITTED USE
4.1 Licensee hereby is granted a License to use the Software, in
object code form only, pursuant to the terms and conditions
set forth in this Agreement. The Software shall be used solely
for Licensee's internal business purposes by its authorized
personnel, subject to CPU and User restrictions, only on the
Computer and only at the Installation Location described in
the applicable Rider. Use of the Software on other additional
computers of Licensee requires additional fees as specified
below.
4.1.1 SINGLE USER LICENSE of RECORDER Remote: If Licensee
elects a Single User License of RECORDER Remote, use
of the Software is limited to a single site and a
single user working with the software on a single
study for its own internal data processing only.
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4.1.2 SINGLE SITE LICENSE: If Licensee elects a Single Site
License, use of the Software is limited to object
code form on a single designated CPU and to the
maximum number of users actually licensed by the
Licensee for its own internal data processing only.
4.1.3 ENTERPRISE LICENSE: If Licensee elects an Enterprise
License, use of the Software is limited to a single
legal entity and its directly related divisions or
wholly owned subsidiaries for its own internal data
processing only.
4.2 Licensee shall not copy or otherwise reproduce, or permit any
third party to use, copy or otherwise reproduce, all or any
part of the Software (including, without limitation, any user
and education manuals) except as expressly authorized by
Paragraph 4.4. Licensee further agrees not to use all or any
part of the Software as part of a service bureau, network or
time sharing facility, whether or not for monetary or other
compensation.
4.3 Licensee agrees not to make alterations to or modify the
Software; combine or merge any part of the Software with any
other program; grant sub-licenses, leases or other rights in
or to the Software; use the Software on other than the
Computer at the Installation Location and in accordance with
the CPU and User restrictions as specified in the applicable
Rider; or make any use of the Software, user manuals or other
documentation except as expressly authorized by this
Agreement.
4.4 Licensee is authorized to make and retain one copy of the
Software in non-printed, machine-readable form, for back-up
and disaster recovery purposes. All proprietary notices,
logos, copyright notices and similar markings shall be
retained on such copies.
4.5 Nothing in this Agreement shall be construed to prohibit
Licensee from maintaining a reasonable number of archival
copies of the data generated by Licensee's use of the
Software. All proprietary notices, logos, copyright notices
and similar markings shall be retained on such copies.
4.6 Except for those rights specifically granted herein, Licensee
is granted no other rights in and to the Software. The
Software delivered pursuant to each Rider (and all related
written materials), together with all copyrights, patents,
trademarks, trade secrets and other rights therein, are and
shall remain the sole property of DLB. All rights therein (and
in and to all related manuals, and educational and training
materials) including, but not limited to, intellectual
property rights, trade secrets, patents, trademarks and
copyrights, remain solely and exclusively with DLB.
4.7 If a replacement Installation Location is in a different
country, Licensee may be required to sign a new Rider or
separate License Agreement with DLB (or its foreign
representative) applicable to the country where the Software
is installed. Such new Rider or License Agreement may be
subject to different terms, fees and discount rates.
4.8 Licensee agrees not to disassemble, decompile, decode, or
otherwise reverse engineer or attempt to reconstruct or
discover any source code or underlying algorithms of the
Software.
5. TERM OF LICENSE
The License for each Product shall be effective from the date of DLB's
acceptance of the applicable Rider to this Agreement and shall remain
in force for a period of ninety-nine (99) years; or until Licensee
discontinues use of the Software; or this Agreement or any License
under it is terminated by either party; or Licensee fails to pay the
relevant License fees when due and payable and Licensee has not cured
such non-payment as set forth in Section 13.
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6. LICENSE FEES
6.1 Upon signing this Agreement, Licensee shall pay DLB for the
License, Service, Network Support Services(NSS) and
Maintenance Fees as set forth in the attached payment schedule
agreement rider. When the Software is delivered, Licensee
shall pay DLB the remaining ten percent of the License,
Service and Maintenance Fees set forth on a specific Rider.
6.2 Additional services will be invoiced as incurred with payment
due net 10 days from date of invoice.
6.3 All license fees are exclusive of shipping charges which are
FOB 1200 Route 22 East, Bridgewater, New Jersey and will be
invoiced separately.
6.4 All license fees are payable without offset or deduction of
any kind.
6.5 After ten (10) days from the date of the invoice, unpaid
invoices are subject to a late payment charge of one and one
half percent (1.5%) per month, or the highest legal rate, if
less.
6.6 All amounts mentioned in this Agreement, including but not
limited to License Fee, Service Fees and Annual Maintenance
Fees, are payable in U.S. dollars. All License Fees, Annual
Maintenance Fees and other taxable charges referred to in this
Agreement and payable under any Rider are net of any
applicable sales, use, property and other taxes and import or
other duties, however designated or levied. Payment of all
such taxes and duties (excluding taxes assessed upon the
profit or gain of DLB) shall be the sole responsibility of
Licensee.
7. MAINTENANCE SERVICE
7.1 DLB hereby agrees to provide, and Licensee hereby agrees to
purchase, Maintenance Service as described below for a period
of one (1) year following execution of this Agreement.
7.2 After the first year, Maintenance Services will be renewed
each year automatically for subsequent three (3) one year
periods at the contract price of $875,000 per year, unless the
Customer is no longer using the products and notifies DLB in
writing 90 days prior to the renewal. Payment is due and
payable for the three subsequent years of maintenance on the
anniversary date of August 30, commencing on August 30, 2000.
After the three year period, maintenance will
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automatically renew at contract prices plus an increase not to
exceed the cpi unless terminated in accordance with the
provisions contained herein. If payment has not been received
by the date due, then DLB reserves the right to suspend
Maintenance Services until such payment is received.
7.3 Maintenance Service means: (1) off-site telephone support at
DLB's New Jersey headquarters, Monday through Friday, 8:00 am
to 8:00 pm EST, and off-site telephone support at DLB's UK
office, Monday through Friday, 9:00 am to 5:30 pm current
British time, excluding statutory holidays, which will be
initiated upon execution of this Agreement; (2) improvements
and application enhancements and updates (Software and
Documentation) to the licensed Software, which are designated
as such by DLB in support of operating system changes to keep
the licensed Software competitive in the marketplace. New
features, Software items or Software separately licensed by
DLB are not included. DLB will maintain the Software in
accordance with DLB's then current specifications.
7.4 In order to be eligible for RECORDER Remote support, the site
must maintain a standard PC and network (hardware & software)
configuration as defined during the Site Implementation Phase
and DLB must be provided on-line access to the site for
trouble shooting purposes. In addition, the site must only
have personnel who have been certified in the utilization of
RECORDER Remote contacting DLB for support purposes.
7.5 The support service for the RECORDER Remote sites will
include: (1) RECORDER Remote trouble shooting; (2) RECORDER
Remote software corrections; (3) RECORDER Remote software
enhancements; (4) Network connection trouble shooting; (5)
PC/Workstation configuration trouble shooting;
(6)Upload/Download assistance.
7.6 Reasonable travel, living and out of pocket expenses incurred
by DLB for on-site Maintenance Services will be reimbursed to
DLB by Licensee.
7.7 Maintenance Service does not include installation, education,
training, consulting, programming or other special services.
Such services may be obtained pursuant to Paragraph 15 hereof.
7.8 Should Licensee discontinue Maintenance Service and at a later
date decide to reinstate Maintenance Service, Licensee will
pay all back maintenance due, in addition to paying the
current year's maintenance in advance.
8. REPLACEMENT COMPUTERS AND ALTERNATIVE LOCATIONS
8.1 Installation of the Software on a replacement computer within
the same operation system is permitted so long as the Software
continues to be used in accordance with the CPU and User
restrictions set forth in the specific Rider. If use of the
replacement Computer causes a change in the CPU and/or User
restrictions which causes the License fee to be at a higher
price, Licensee shall pay to DLB an additional fee based upon
the difference between the then current License fee for the
original computer and that of the replacement Computer at the
time of the upgrade, and any conversion charges as are stated
in the then current Price List.
8.2 Licensee shall notify DLB, in writing, of the use of the
Software on a replacement computer no later than thirty (30)
days before such replacement computer comes into operation.
8.3 DLB shall be entitled to require Licensee to confirm, in
writing, on each anniversary of the Delivery Date, the make,
model, number of users, serial number and location of the
computer on which the Software is currently installed and that
no replacement computer is or has been in operation. Licensee
shall permit representatives of DLB to inspect, on an annual
basis, any location at which the Software is being used at
reasonable times and on reasonable notice for the purpose of
verifying that Licensee is not in default of this Agreement.
8.4 Installation of the Software on a different operation system
is not permitted.
8.5 If Licensee fails to comply with its aforesaid reporting
obligations, and the Software is installed on a replacement
computer entailing a higher fee than that charged for the
original computer installation, then Licensee shall pay to
DLB, retroactive to date of such installation, the difference
between the two fees. In addition, the parties shall
immediately enter into a Rider designating the replacement
computer as the Computer authorized by this Agreement.
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9. ADDITIONAL INSTALLATIONS
9.1 Additional Users, Software or Computers on which the Software
may operate, may be licensed hereunder by execution of a
separate Rider and payment of the applicable amount specified
in the then current Price List.
9.2 All additional License fees shall be based on the then current
Price List for the country of installation.
10. WARRANTIES; LIMITATION OF LIABILITY
10.1 DLB represents to Licensee that the Software and related
documentation have tangible value; and that DLB has the right
to license, market and distribute, maintain and support the
Software.
10.2 The Warranty Period shall commence on the Delivery Date and
shall continue for a period of ninety (90) days ("Warranty
Period").
10.3 During the Warranty Period, DLB warrants that the Software
provided shall function substantially as described in the DLB
then current published Software specifications, as modified
from time to time.
10.4 DLB's sole obligation under the above warranty shall be to
remedy or repair, as soon as reasonably practicable, all
substantial and demonstrable errors and malfunctions in the
Software at no charge to Licensee. DLB may, at its sole
discretion, provide either an up-date of the affected item or
an alternative method which has
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substantially the same functionality. DLB's aforementioned
warranty obligation is conditional upon: (1) Licensee giving
DLB written notice of any substantial malfunction promptly and
in any event within the Warranty Period; (2) the said
malfunction being repeatedly demonstrable; and (3) no
unauthorized addition to or modification of the Software
having been undertaken by Licensee or a third party, whether
or not said third party is acting on behalf of Licensee.
10.5 EXCEPT AS SPECIFIED HEREIN, NO OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, ARE MADE BY DLB.
10.6 DLB'S SOLE RESPONSIBILITY FOR BREACH OF WARRANTY, ERROR, OR
OMISSIONS SHALL BE AS SET FORTH IN THIS PARAGRAPH 10. IN NO
EVENT WILL DLB BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR
ANY REASON WHATSOEVER, WHETHER IN CONTRACT OR TORT, FOR ANY
LOSS RESULTING FROM THE USE OF THE SOFTWARE, WHETHER INTENDED
OR FORESEEABLE, OR FOR ANY FORM OF INDIRECT, SPECIAL,
PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL LOSS, DAMAGE OR EXPENSE
(INCLUDING, BUT NOT LIMITED TO, LOSS DUE TO INABILITY TO
OBTAIN DATA, LOSS OF BUSINESS, OR LOSS OF ANTICIPATED PROFITS)
IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING,
FUNCTIONING OR USE OF ANY SOFTWARE OR PRODUCT PROVIDED UNDER
THIS AGREEMENT OR ANY RIDER ENTERED INTO PURSUANT TO IT, EVEN
IF ADVISED OF THE POSSIBILITY THEREOF.
10.7 DLB INDEMNIFIES LICENSEE FROM LIABILITY FOR PERSONAL INJURY OR
PROPERTY DAMAGE CAUSED SOLELY BY DLB'S NEGLIGENCE OR WILLFUL
MISCONDUCT WHILE PERFORMING ITS OBLIGATIONS PURSUANT TO THIS
AGREEMENT ON LICENSEES PREMISES.
10.8 EXCLUDING ANY LIABILITY FOR PATENT OR COPYRIGHT INFRINGEMENT,
DLB'S LIABILITY HEREUNDER SHALL NOT IN ANY EVENT EXCEED THE
PRICE PAID BY LICENSEE FOR THE PARTICULAR DLB SOFTWARE PRODUCT
INVOLVED.
11. DLB PROPRIETARY RIGHTS
11.1 Without DLB's prior written consent, Licensee shall not
transfer, in whole or in apart, in any manner, the Software,
Software documentation or any copy of the Software or Software
documentation. Licensee recognizes that, in developing the
Software, DLB has invested irreplaceable trade secrets and
methods as well as an amount of money which is difficult or
impossible to ascertain. Consequently, in addition to any
other remedy available at law or equity, Licensee consents to
the entry of any injunction or restraining order necessary to
protect the Software in case of a claimed breach of this
Agreement.
11.2 Licensee acquires no right in and/or to any DLB trademarks,
copyrights, patents, trade secrets or any other intellectual
property rights belonging to DLB by virtue of entering into
this Agreement or any Rider. Licensee shall not make the
Software available for use by or for the benefit of any other
party, whether or not for consideration. Licensee shall take
all reasonable precautions to maintain the confidentiality of
the Software, which precautions shall be at least equivalent
to those precautions Licensee takes to protect its own
confidential information. Without limiting the generality of
the foregoing, Licensee shall acquire no rights in and/or to
any source code and shall not reverse engineer, disassemble or
take any other steps to discover such source code.
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12. ASSIGNMENT
Neither this Agreement nor any Rider shall be transferred or assigned,
in whole or in part, by Licensee without the prior written consent of
DLB. A spin-off, sale of assets, merger, acquisition or other
transaction which involves a change of control of Licensee, or any part
of Licensee, shall be deemed to be an assignment hereunder. Licensee
shall notify DLB of any such transaction within five (5) business days
after its occurrence at which time the new entity must immediately
execute a Master Software License Agreement with DLB or cease using the
Software.
13. DEFAULT AND TERMINATION
13.1 DLB may terminate this Agreement and any License or Rider
under it, if one or more of the following occur: (1) effective
immediately and without prior notice, if Licensee breaches the
provisions of Section 11; (2) upon thirty (30) days written
notice, if Licensee shall fail to pay any License fee when
due, but such termination shall not take effect, and the
respective License shall remain in full force and effect, if
Licensee makes such payment prior to the expiration of the
thirty (30) day period; (3) upon thirty (30) days written
notice, if Licensee is in default of any other provision of
this License, but such termination shall not take effect, and
the respective License shall remain in full force and effect,
if Licensee shall cure such default prior to the expiration of
the thirty (30) day period; or (4) Licensee enters into
liquidation, whether voluntary or compulsory, or has a
receiver appointed, or commits an act of bankruptcy, or
becomes insolvent, or enters into any arrangement with its
creditors, or takes or suffers any similar action in
consequence of debt, or ceases or threatens to cease to carry
on business.
13.2 Termination shall be without prejudice to the right of DLB to
retain any fees paid before termination; to demand payment of
any fees or charges that are due and unpaid or not yet
invoiced at the effective date of termination; or to seek
equitable relief, damages, or both, for breach of any
provision hereof.
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13.3 If Licensee's right to use any Software is terminated for any
reason, whether with or without cause or due to the expiration
or non-renewal thereof, Licensee shall immediately cease using
such Software and delete same and all associated items from
its library. Further, Licensee shall return to DLB all copies
of materials provided by DLB in connection with the License.
Upon written demand from DLB, Licensee shall confirm in
writing to DLB that such deletion of the Software and return
of all materials has occurred.
14. INDEMNIFICATION
14.1 DLB represents that it has the right to market, distribute,
maintain and support the Software licensed to Licensee and,
subject to the remainder of this Article 14, agrees to defend
or settle, at its option, any action brought against Licensee
arising from any claim that Licensee's use of the Software
under the terms of this Agreement or any License or Rider
under the terms of this Agreement, infringes any patent,
copyright, trademark, trade secret or other proprietary right
belonging to a third party ("Third Party Claim") and to hold
Licensee harmless from any and all liabilities, losses, costs,
damages, expenses and reasonable attorney's fees that result
from any such Third Party Claim.
14.2 DLB 's obligations under this Section 14 are conditioned upon:
(1) DLB being promptly notified in writing by Licensee of any
Third Party Claim; (2) Licensee giving DLB express sole
authority to conduct the defense of any Third Party Claim and
all negotiations of a settlement or compromise; (3) Licensee
allowing its name to be used in proceedings, as necessary; (4)
Licensee providing DLB with all reasonable assistance in
defending any Third Party Claim; and (5) the Third Party Claim
shall not have arisen due to unauthorized acts or misconduct
of Licensee or a third party, whether or not said third party
is acting on behalf of Licensee, including use or combination
of the Software with software or hardware not supplied or
approved by DLB.
14.3 If the Software is the subject of a Third Party Claim, DLB may
at its option and expense either: (1) obtain an appropriate
license for Licensee to continue using the Software from the
party asserting the Third Party Claim; or (2) replace or
modify the Software (or parts thereof) that is the subject of
the Third Party Claim so that it is functionally equivalent
and no longer infringing as alleged. Except for its
indemnification obligations set forth above, DLB shall have no
further liability to Licensee.
15. PROFESSIONAL SERVICES
15.1 At Licensee's request and direction, DLB will assist Licensee
with the installation, consulting and training ("Services")
pursuant to one or more Professional Service work orders
(hereinafter "Work Order"), signed by both parties, specifying
the services to be rendered, charges and other relevant
matters. All services performed pursuant to a Work Order shall
be subject to the express terms and conditions as set forth in
this Agreement and more specifically in this Article 15 and
the subject Work Order. Work Orders are considered to be time
and materials contracts.
15.2 DLB will expend reasonable efforts to assist Licensee in the
performance of the Services specified in each Work Order and
warrants that its services hereunder will be of professional
quality conforming to generally accepted industry standards.
In order to receive warranty remedies, deficiencies in the
Services must be reported to DLB in writing within thirty (30)
days of completion of the applicable Services.
15.3 Ownership of a product produced under a Work Order will be the
property of DLB, not a "Work Made for Hire", and shall be
protected by Licensee in accordance with Section 11.
15.4 Licensee shall provide DLB's employees with adequate work
areas, access to computer terminals, data, Software and
personnel, and all other facilities, as may be reasonably
required for performance of the Services set forth in the Work
Order.
15.5 DLB shall be paid semi-monthly for Services rendered under the
Work Orders. Charges will be based upon the fees agreed to in
the Work Order and any amendments or additions, thereto which
have been agreed to by both parties. DLB will be reimbursed
for all reasonable out of pocket expenses incurred and travel
time, whether or not these are specifically stated on the Work
Order. Invoices are payable within ten (10) days of the date
of the invoice.
15.6 DLB and Licensee are independent contractors and no
employment, agency, association, partnership, joint venture or
relationship inconsistent with that of an independent
contractor shall be created by performance of the Services
specified in a Work Order.
15.7 Either party may terminate any Work Order (whether or not
complete) upon ten (10) days written notice, without further
liability. DLB shall be paid for all services rendered to the
date of termination.
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16. NON-SOLICITATION AND HIRING OF DLB
EMPLOYEES
Licensee shall not directly or indirectly solicit for employment, hire
or utilize the services of any employee, agent, representative or
consultant of DLB during the term of this Agreement and/or any Work
Order under it and for one year thereafter or assist any third party in
so doing. In the event of breach of this provision, Licensee shall pay
to DLB a sum equal to one hundred fifty percent (150%) of the annual
compensation agreed to be paid by Licensee to such person. The
aforementioned remedy is in addition to any other remedies available to
DLB at law or in equity.
17. SUB-LICENSING PROVISIONS REGARDING
THIRD PARTY SOFTWARE
DLB may be a Value Added Reseller (VAR) or perform similar services for
certain Third Party providers of software, incorporating their software
(the "Third Party Software") into DLB's Software. As such, this
Agreement provides as follows:
17.1 SINGLE USER LICENSE: If Licensee elects a Single User License,
use of the Third Party Software is
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limited to a single site and a single user for its own
internal data processing only.
17.2 SINGLE SITE LICENSE: If Licensee elects a Single Site License,
use of the Third Party Software is limited to object code form
on a single designated CPU to the maximum number of users
actually licensed by the Licensee for its own internal data
processing only.
17.3 ENTERPRISE LICENSE: If Licensee elects an Enterprise License,
use of the Third Party Software is limited to a single legal
entity and its directly related divisions or wholly owned
subsidiaries for its own internal data processing only.
17.4 SCOPE OF USE: The Third Party Software is licensed for use
with DLB's Software only and not for any other purpose; no
title is intended to pass to the Licensee, and no right is
granted to rent, time-share, or reproduce the Third Party
Software, except for temporary transfer in the event of
malfunction.
17.5 NO REVERSE ENGINEERING: The Licensee agrees not to
disassemble, decompile, decode, or otherwise reverse engineer
or attempt to reconstruct or discover any source code or
underlying algorithms of the Third Party Software. Duplication
is permitted only for a single backup or archival copy.
17.6 NO EXPORT OR RE-EXPORT: The Licensee agrees not to export or
re-export outside of the United States except in accordance
with the U.S. Export Control Act and regulations.
17.7 NO WARRANTIES: DLB DOES NOT MAKE ANY WARRANTIES, EXPRESS OR
IMPLIED, ON BEHALF OF ANY THIRD PARTY PROVIDER OF SOFTWARE AND
DLB DISCLAIMS ALL WARRANTIES AND LIABILITIES ON BEHALF OF ANY
THIRD PARTY PROVIDER OF SOFTWARE INCLUDING WITHOUT LIMITATION
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
17.8 LIMITATION OF LIABILITY: IN NO EVENT WILL DLB HAVE ANY
LIABILITY, BASED ON CONTRACT, TORT OR OTHERWISE, FOR DIRECT,
INDIRECT, CONSEQUENTIAL, OR ANY DAMAGES ARISING FROM ANY THIRD
PARTY SOFTWARE WITHIN THE LICENSED APPLICATION.
17.9 NO USE OF THIRD PARTY NAME OR TRADEMARKS: The Licensee may not
use the Third Party name or trademarks of any Third Party
provider of software without the written permission of such
Third Party.
17.10 THIRD PARTY BENEFICIARY; ASSIGNMENT OF RIGHTS: The Third Party
provider of software shall be an intended third party
beneficiary of the foregoing provisions; DLB shall assign to
such Third Party whatever rights are necessary to assure that
the Third Party obtains the benefit of the foregoing
provisions of this Addendum.
17.11 RETURN OF SOFTWARE, ETC: At the termination of the License the
Licensee will discontinue use of, and destroy or return to
DLB, the Software and all archival or other copies of the
Software.
17.12 NO PUBLICATION: The Licensee will not publish any results of
benchmark tests run on the Software application programs.
17.13 INHERENTLY DANGEROUS APPLICATION: The Software is not
specifically developed or licensed for use in any inherently
dangerous applications. The Licensee hereby agrees that the
Third Party shall not be liable for any claims or damages
arising from such use.
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18. GENERAL
18.1 Law to be Applied - This Agreement and all Riders under it
shall be governed by and interpreted under the laws of the
State of New Jersey.
18.2 Licensee acknowledges and accepts that the role of DLB is
solely that of a supplier of Software and related items and
that it is Licensee's responsibility to determine its own data
processing requirements and to satisfy itself that the
Software meets such requirements. Furthermore, Licensee
recognizes it is responsible for the selection, use of and
results obtained from any Software or equipment used in
conjunction therewith.
18.3 DLB shall use its reasonable best efforts to provide prompt,
correct responses to telephone inquires from Licensee. DLB,
however, shall have no liability for delays, errors or
omissions.
18.4 DLB will use reasonable efforts to protect all Software (and
the tapes or other media in which they are embedded) from
computer viruses or other contaminants. DLB represents that,
to the best of its knowledge, the Software (and tapes or other
media in which they are embedded) provided by it do not
contain any viruses or programming codes or instructions that
are constructed to damage, interfere with or otherwise
adversely affect the Software.
18.5 Publicity - The parties may collaborate on publicity,
advertising, brochures, literature and the like as regards
this Agreement and their business relationship. Prior to any
distribution, all such material will be approved in writing by
both parties.
18.6 Notices - Notices under this Agreement, any Rider or Amendment
shall be deemed given one (1) day after being presented to
Federal Express or the equivalent for delivery to a party at
the addresses specified below or such new address as either
party shall communicate to the other party:
To: Breast Cancer International Research Group
Edmonton, Alberta, Canada
ATTN:
To: DLB System
1200 Route 22 East,
Bridgewater, New Jersey, 08807
ATTN: Manager - Contracts
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18.7 Force Majeure - No party to this Agreement or any Rider under
it shall be liable for delay or failure in the performance of
its contractual obligations arising from any one or more
events which are beyond its reasonable control. Upon such
delay or failure affecting one party, that party shall notify
the other party and use all reasonable endeavors to cure or
alleviate the cause of such delay or failure with a view to
resuming performance of its contractual obligations as soon as
practicable.
18.8 Waiver - The failure of any party to enforce or exercise, at
any time or for any period of time, any term of or any right
arising pursuant to this Agreement or any Rider under it does
not constitute, and shall not be construed as, a waiver of
such term or right and shall in no way affect that party's
right to later enforce or exercise it. The waiver by either
party of the breach of any provision of this Agreement shall
not constitute a waiver of the breach of any other provision
or of the subsequent breach of the same or any other
provision.
18.9 Severability - The invalidity or unenforceability of any term
of or any right arising pursuant to this Agreement or any
Rider shall in no way affect the remaining terms or rights.
18.10 Binding Effect - This Agreement shall be binding upon and
inure to the benefit of the parties, and their heirs and
successors.
18.11 Amendment - This Agreement may not be amended, waived,
terminated or superseded except by a written instrument signed
by the parties.
18.12 Inconsistencies between the Agreement and the Rider- Unless a
Rider expressly provides otherwise, in the event of any
inconsistency between the Rider and the Agreement, the terms
of the Rider shall govern and control. This Agreement and the
Rider shall govern and control in the case of any
inconsistency between them and any purchase order,
confirmation or other document issued by either party.
18.13 Plural and Singular Usage- As used herein, the singular of any
term includes the plural and the plural means the singular,
whenever the context so requires.
18.14 Headings - The section headings in this Agreement are inserted
for convenience only and are not intended to affect the
meaning or interpretation of this Agreement.
18.15 Notwithstanding the general rules of construction, both DLB
and Licensee acknowledge that both parties were given an equal
opportunity to negociate the terms and conditions contained in
this Agreement and agree that the identity of the drafter of
this Agreement is not relevant to any interpretation of the
terms and conditions of this Agreement.
18.16 Entire Agreement - The entire understanding between the
parties is contained in this Agreement and all Riders under
it. This Agreement supersedes all prior statements,
representations, agreements, understandings and negotiations,
whether written or oral, and in all cases takes precedence.
DLB SYSTEMS /s/ John Bauer Customer /s/ T. Saxton H.Rhouri
------------------------- -------------------------------
Signature Signature
CFO VP Finance President
------------------------- -------------------------------
Name/Title Name/Title
Sept. 25, 1999 Aug 23/99 23 Aug 99
------------------------- -------------------------------
Date Date
Page 7
<PAGE>
MASTER SOFTWARE LICENSE
AGREEMENT RIDER
Rider Date: July 31, 1999
This is a Rider to the Master Software License Agreement entered into by and
between Breast Cancer International Research Group and DLB Systems, a business
unit of Premier Research Worldwide, Ltd., dated July 31, 1999 (hereinafter the
"Agreement"). DLB hereby grants to the Licensee a non-exclusive,
non-transferable, non-assignable license to use the software listed below, as
provided by DLB and accepted by Licensee at the location listed below, in
accordance with the terms and conditions of the Agreement. In the event a
discrepancy should arise between the provisions of this Rider and those of the
Agreement, the provisions of this Rider shall apply.
TOTAL OF SOFTWARE AND FIRST YEAR MAINTENANCE, for the
Period 9/1/99 through 8/31/00 $3,100,000
==========
Enterprise Licenses for RECORDER, MONITOR, ALERT
100 Single User Licenses of RECORDER Remote
First Year Maintenance, for the period 9/1/99 through 8/31/00 -
Enterprise licenses for RECORDER, MONITOR, ALERT First Year
Maintenance, for the period 9/1/99 through 8/31/00 - 100 Single User
Licenses of RECORDER Remote
3. The System shall be installed on the following equipment:
MANUFACTURER MODEL MEMORY MB SYSTEM LOCATION
--------------------------------------------------------------------------------
TBD
4. SPECIAL TERMS AND CONDITIONS (These Special terms and conditions apply to
this Rider only)
The terms of the Agreement not modified by this Rider shall remain in full force
and effect. This Rider together with the above referenced Agreement constitutes
the entire agreement of the parties and supersedes all prior understanding and
agreements, whether written or oral.
Page 9
<PAGE>
By signature below, the parties agree to the foregoing:
Accepted by: Accepted by Licensee:
DLB Systems Breast Cancer International Research Group
Signature: /s/ John Bauer Signature: /s/ T. Saxton /s/ H.Rhouri
----------------------------- -----------------------------------------
Name: John Bauer Name: T. Saxton H.Rhouri
---------------------------------- ---------------------------------------------
Title: CFO Title: VP Finance President
--------------------------------------- ---------------------------------------------
Page 10
<PAGE>
PAYMENT SCHEDULE
Rider Date: July 31, 1999
-------------
Payment Schedule
----------------
Due August 30, 1999 $2,250,000
Due September 30, 1999 $ 850,000
TOTAL OF SOFTWARE & FIRST YEAR
MAINTENANCE, for the period 9/1/99 through 8/31/00 $3,100,000
==========
--------------------------------------------------------------------------------
Page 11
<PAGE>
-------------------------------------------------------------------------------
ADDENDUM-1
The following Addendum shall apply to the Software License Agreement dated July
31, 1999 between DLB Systems and Breast Cancer International Research Group and
will take effect from the date of this Agreement.
APPENDIX I
PRODUCT AND SERVICES PROVIDED
100 Single User Licenses of RECORDER Remote and First Year Maintenance, for
the period 9/1/99 through 8/31/00 $750,000
APPENDIX II
PAYMENT SCHEDULE
All charges are subject to the addition of applicable taxes in accordance with
prevailing laws and rates.
100 Single User Licenses of RECORDER Remote and First Year Maintenance, for $750,000 no later than 30 days after
the period 9/1/99 through 8/31/00 delivery date (see delivery schedule below)
APPENDIX III
DELIVERY SCHEDULE
Customer will notify DLB, in writing, 30 days in advance of the required
delivery date.
For DLB Systems For Customer
Signature: ______________________ Signature: ________________________
Printed: ______________________ Printed: ______________________
Title: ______________________ Title: ___________________
Date: ______________________ Date: ____________________
Page 12
<PAGE>
-END-
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ADDENDUM-2
The following Addendum shall apply to the Software License Agreement dated July
31, 1999 between DLB Systems and Breast Cancer International Research Group and
will take effect from the date of this Agreement.
APPENDIX I
PRODUCT AND SERVICES PROVIDED
100 Single User Licenses of RECORDER Remote and First Year Maintenance, for
the period 9/1/99 through 8/31/00 $750,000
APPENDIX II
PAYMENT SCHEDULE
All charges are subject to the addition of applicable taxes in accordance with
prevailing laws and rates.
100 Single User Licenses of RECORDER Remote and First Year Maintenance, for $750,000 no later than 30 days after
the period 9/1/99 through 8/31/00 delivery date (see delivery schedule below)
APPENDIX III
DELIVERY SCHEDULE
Customer will notify DLB, in writing, 30 days in advance of the required
delivery date.
For DLB Systems For Customer
Signature: ______________________ Signature: ________________________
Printed: ______________________ Printed: ______________________
Title: ______________________ Title: ___________________
Date: ______________________ Date: ____________________
Page 13
<PAGE>
-END-
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ADDENDUM-3
The following Addendum shall apply to the Software License Agreement dated July
31, 1999 between DLB Systems and Breast Cancer International Research Group and
will take effect from the date of this Agreement.
APPENDIX I
PRODUCT AND SERVICES PROVIDED
100 Single User Licenses of RECORDER Remote and First Year Maintenance, for
the period 9/1/99 through 8/31/00 $750,000
APPENDIX II
PAYMENT SCHEDULE
All charges are subject to the addition of applicable taxes in accordance with
prevailing laws and rates.
100 Single User Licenses of RECORDER Remote and First Year Maintenance, for $750,000 no later than 30 days after
the period 9/1/99 through 8/31/00 delivery date (see delivery schedule below)
APPENDIX III
DELIVERY SCHEDULE
Customer will notify DLB, in writing, 30 days in advance of the required
delivery date.
.
For DLB Systems For Customer
Signature: ______________________ Signature: ________________________
Printed: ______________________ Printed: ________________________
Title: ______________________ Title: ________________________
Date: ______________________ Date: ________________________
-END-
--------------------------------------------------------------------------------
Page 14
<PAGE>
ADDENDUM
This Addendum will serve to modify the Master Software License Agreement dated
July 31, 1999 between DLB Systems and Breast Cancer International Research
Group, ltd. as follows:
ADDENDUM-1 is changed as follows:
APPENDIX II
PAYMENT SCHEDULE
All charges are subject to the addition of applicable taxes in accordance with
prevailing laws and rates.
100 Single User Licenses of RECORDER Remote and First Year Maintenance,
for $750,000 due January 25, 1999 the period 9/1/99 through 8//31/00
APPENDIX III
DELIVERY SCHEDULE
Delivery required to Customer by November 30, 1999.
ADDENDUM-2 is changed as follows:
APPENDIX II
PAYMENT SCHEDULE
All charges are subject to the addition of applicable taxes in accordance with
prevailing laws and rates.
100 Single User Licenses of RECORDER Remote and First Year Maintenance,
for $750,000 due March 15, 2000 the period 9/1/99 through 8//31/00
APPENDIX III
DELIVER SCHEDULE
Delivery required to Customer by November 30, 1999.
Confidential
Page 2 11/04/00
<PAGE>
For DLB Systems For BCIRG
Signature: /s/ Vincent W. Renz, Jr. Signature: /s/ T.W. Saxton
Printed: Vincent W. Renz, Jr. Printed: T.W. Saxton
Title: Sr. Vice President & General Manager Title: V. P. Finance
Date: Date: Nov. 4, 99
Confidential
Page 3 11/04/00