TrackVis License Agreement
The General Hospital Corporation
ACADEMIC RESEARCH END-USER
SOFTWARE LICENSE AGREEMENT
By downloading, using, reproducing, displaying or otherwise accessing the
Software which is the subject of this Agreement, Licensee (defined below)
hereby agrees to all of the terms and conditions in this Agreement. If
Licensee does not so agree, Licensee shall have no license or right to
use, reproduce or display the Software.
This Academic Research End-User Software License Agreement (the
"Agreement") is by and between The General Hospital Corporation, d/b/a
Massachusetts General Hospital, a Massachusetts not-for-profit
corporation, with a principal place of business at 55 Fruit Street,
Boston, Massachusetts 02114 (the "Licensor") and the individual who is
or has engaged in downloading, using, reproducing, displaying or otherwise
accessing the Software described herein (the "Individual") and the
institution or entity which employs or is otherwise affiliated with such
Individual in connection with the Individual's use of the Software (the
"Institution" and together with the Individual, collectively
"Licensee"), and is effective as of the date the Software is first
downloaded or otherwise accessed by the Individual or the Institution (the
"Effective Date"). Each party to this Agreement is referred to herein
as a "Party" and collectively as the "Parties."
RECITALS
Licensor, through its investigators Ruopeng Wang, MS and Van Wedeen, MD of
the Department of Radiology, has developed the Software (defined below),
for use in the field of Diffusion Imaging research, and desires to permit
Licensee to use the software for Research Purposes only (defined below).
Licensee desires to license the Software solely for Research Purposes in
accordance with the terms and conditions hereof.
Now therefore, in consideration of the premises and covenants
hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties
hereby agree as follows:
I. Certain Definitions. As used in this Agreement, the following
terms shall have the following meanings:
(a) "Affiliate" with respect to either entity Party means
any corporation or other legal entity other than that Party in whatever
country organized, controlling, controlled by or under common control with
that Party. The term "control" shall mean the power, direct or
indirect, to elect or appoint fifty percent (50%) or more of the directors
or trustees, or to cause direction of management and policies, whether
through the ownership of voting securities, by contract or otherwise.
(b) "Binary Code" means the embodiment of a computer program
which is not in human-readable form, and which is derived from source code
of such program by means of assembly or compilation into either a
computer-specific non-executable code, or an executable code capable of
being run on a computer system.
(c) "Commercial Purposes" shall mean the sale, lease, license or
other transfer of the Software, use of the Software for the performance of
contract research, or to produce or manufacture products for sale, or to
develop, use, and/or distribute educational materials based on the
Software, including but not limited to courseware or text books.
(d) "Patent Rights" means Licensor's rights in the Software
under U.S. and foreign patent law, if applicable, as may be further
described in Appendix A.
(e) "Research Purposes" means the academic or government
funded research under the direction of the Individual at the Institution.
(f) "Software" means the computer programs known as TrackVis
and Diffusion Toolkit and any related documentation as further defined and
described in Appendix A.
2. Software License Grant. Subject to the terms and conditions
contained in this Agreement, Licensor hereby grants to Licensee a
nonexclusive, nontransferable, nonsublicensable, royalty-free license:
(i) under Licensor's copyright rights, to reproduce and display the
Software; and
(ii) under Licensor's Patent Rights, to use the Software (but
not to sell or otherwise transfer the Software);
provided, however, that the foregoing license grant is limited to Research
Purposes only and only at the Institution. The Software shall not be
reproduced, displayed or used for any Commercial Purposes unless Licensor
has consented in writing in advance and the Parties have entered into a
commercial license agreement containing appropriate terms for royalties,
and such other terms and conditions as are required by Licensor.
3. Title and Ownership. The Software is protected by copyright and
foreign treaties, and may be subject to Patent Rights and other
proprietary rights of Licensor and, if applicable, its licensor(s).
Except to the extent of the limited license provided for in this
Agreement, Licensor shall retain all of its rights, title and interest in
and to the Software. This Agreement does not grant any rights in or to
any intellectual property owned or licensed by Licensor except those
rights expressly granted hereunder, and except as specifically set forth
in this Agreement, Licensee shall have no other rights in or to the
Software nor any underlying intellectual property.
4. Conditions. As a condition to the license granted hereunder,
Licensee, and each of Individual or the Institution, as applicable, shall
comply at all times with each of the following:
(a) Licensee shall preserve and maintain all applicable
attributions, copyright notices and licenses included in or applicable to
the Software.
(b) Licensee may make copies of the Software but only to the extent
required to support Licensee's authorized use of the Software for
Licensee's Research Purposes. Licensee agrees to reproduce on any such
copies all of Licensor's proprietary notices contained in and on the
Software and its associated media.
(c) Licensee shall use the Software only for Research Purposes and
only at the Institution.
(d) Licensee shall not sell, license, distribute, rent, lease,
offer on an ASP or service bureau basis, grant a security interest in,
sublicense or otherwise transfer or permit any third party (other than
Licensee's own employees, students and fellows or other collaborators
solely in connection with permitted activities at the Institution) to
access or use all or any portion of the Software in any form or any of the
rights therein or thereto.
(e) This Agreement does not grant any rights with respect to
third party software, except those rights that Licensor has been
authorized by a third party to grant to Licensee, and accordingly Licensee
is solely responsible for obtaining any permissions from third parties
which are necessary to use, reproduce, or display, the Software.
(f) Licensee shall exercise its rights pursuant to this Agreement in
compliance with all applicable governmental laws, regulations and orders,
including without limitation those relating to export and import control.
(g) To the extent such restriction is not prohibited by
applicable law, Licensee shall not decompile, disassemble or reverse
engineer the Software or its structure, sequence, organization, algorithms
or data.
(h) Licensee shall notify Licensor promptly if it becomes
aware of any unauthorized access to or use or transfer of the Software.
(i) Institution shall be jointly responsible for the actions of
Individuals hereunder with respect to the Software and compliance with the
terms of this Agreement. Licensee hereby represents and warrants that
all information provided to Licensor in connection with accessing,
downloading and/or using the Software is accurate, true and complete.
5. Limitations.
(a) LICENSEE ACKNOWLEDGES THAT THE SOFTWARE HAS BEEN DESIGNED FOR
RESEARCH PURPOSES ONLY AND HAS NOT BEEN REVIEWED OR APPROVED BY THE FOOD
AND DRUG ADMINISTRATION OR BY ANY OTHER AGENCY, AND FURTHER ACKNOWLEDGES
THAT CLINICAL APPLICATIONS ARE NEITHER RECOMMENDED NOR ADVISED.
(b) Licensee shall be solely responsible for installing and
maintaining the Software and for testing the Software for proper
operation. Unless otherwise agreed in writing, Licensor shall have no
obligation to provide to Licensee any support, maintenance, corrections,
debugging, improvements, modifications, upgrades or updates of the
Software, or otherwise assist Licensee in installing, configuring,
integrating, understanding or using the Software.
6. Publication. Licensee may publish and present the results of
Licensee's use of the Software in peer-reviewed journals. Licensee
agrees to provide acknowledgement to Licensor and its designated
professional staff, Ruopeng Wang, MS and Van Wedeen, MD, who participated
in the creation of the Software, in such publications or presentations in
accordance with standard academic practice.
7. Term and Termination. This Agreement and the license granted by
Licensor hereunder shall commence on the Effective Date and continue in
effect until terminated by any Party as provided herein. Licensee may
terminate this Agreement at any time by destroying all copies of the
Software and notifying Licensor in writing of such destruction, or
returning all copies of the Software to Licensor. Licensor may terminate
this Agreement upon sixty (60) days prior notice to Licensee if Licensee
does not comply with any of the material provisions of this Agreement and
such breach remains uncured at the end of such sixty (60) day period,
provided however that in the case of any breach of this Agreement that
Licensor in its reasonable judgment deems uncurable, Licensor may
terminate this Agreement immediately upon notification to Licensee. Upon
any such termination, Licensee shall immediately cease all uses of the
Software and any portion thereof, and shall return or destroy all copies
of the Software and any portion thereof and, if so requested, provide
written certification of such destruction to Licensor.
8. Disclaimer. Licensee accepts the Software free of charge and on
an "AS IS" basis. Licensee understands and acknowledges that the Software
is experimental, may contain errors and is subject to further development
and revision and assumes the entire risk as to its use of the Software.
Licensor does not guarantee the accuracy of the Software, or of any
results or data, and assumes no obligation to notify Licensee of any bug
fixes, enhancements or other modifications that may be made to the
Software. LICENSOR SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED
WARRANTIES OF ANY KIND INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. Limitation of Liability; Indemnification. IN NO EVENT SHALL
LICENSOR OR ANY OF ITS TRUSTEES, DIRECTORS, OFFICERS, MEDICAL OR
PROFESSIONAL STAFF, EMPLOYEES, STUDENTS OR AGENTS ("LICENSOR'S
PERSONNEL") BE LIABLE TO ANY PARTY FOR DIRECT, INDIRECT, SPECIAL,
INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND ON ANY
THEORY OF LIABILITY ARISING IN ANY WAY RELATED TO THE SOFTWARE OR THIS
AGREEMENT, EVEN IF LICENSOR OR ANY OF LICENSOR'S PERSONNEL HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT
PROHIBITED BY LAW OR REGULATION, LICENSEE ASSUMES ALL LIABILITY FOR
LICENSEE'S USE, REPRODUCTION, AND DISPLAY OF THE SOFTWARE, AND AGREES TO
INDEMNIFY AND HOLD HARMLESS LICENSOR AND EACH OF LICENSOR'S PERSONNEL
FROM AND AGAINST ANY AND ALL DAMAGES, COSTS, LIABILITY, LOSS OR EXPENSES
(INCLUDING ATTORNEYS' FEES AND COSTS) ARISING IN CONNECTION WITH ANY
CLAIMS, SUITS, ACTIONS, DEMANDS AND JUDGMENTS RELATED TO LICENSEE'S USE,
REPRODUCTION, AND DISPLAY OF THE SOFTWARE.
10. Independent Status. Neither the making of this Agreement nor the
performance of its provisions shall be construed to constitute any Party
an agent, employee or legal representative of the other Party for any
purpose whatsoever.
11. Use of Name. Except as expressly provided in this Agreement or
pursuant to specific prior written permission of the applicable party,
Licensee shall not use any of the names, logos or trademarks, or any
adaptation thereof, of Licensor or any of its Affiliates, or of any
trustee, director, officer, staff member, employee, student or agent
thereof, or of any funding agency, in any advertising, promotional or
sales material or publicity or in any document employed to obtain funds or
financing, or to endorse or promote research results or products produced
in whole or in part by operation of the Software or derived from or based
on the Software. Such permission shall be obtained from Licensor's Chief
Public Affairs Officer. Licensee hereby grants permission to Licensor to
use Licensee's name for purposes of obtaining funds from any funding
agency.
12. U.S. Government Rights. For Software supported by federal
funding, the license granted under this Agreement is subject to the
rights, conditions and limitations imposed by U.S. law including without
limitation 35 U.S.C. ยง 202 et seq. and regulations pertaining thereto.
Notwithstanding the foregoing, the license granted under this Agreement
does not constitute a response by Licensee to any request for proposals,
bid solicitation or other invitation or offer to contract by any
governmental authority but instead constitutes an offer to enter into a
license agreement only upon the terms set forth herein. If the U.S.
Government or any other governmental authority shall seek to acquire the
Software and its acquisition of such Software would result in the U.S.
Government or such other governmental authority having rights in the
Software that are at variance with the terms and conditions of this
Agreement and license, Licensee shall not be bound by any such rights
unless it shall have expressly entered into an amendment of this Agreement
that shall set forth such rights in accordance with any applicable
governmental rules or regulations, including the Federal Acquisition
Regulation and the Defense Federal Acquisition Regulation Supplement.
13. General. This Agreement constitutes the entire understanding of
the Parties with respect to the subject matter hereof, superseding and
merging any prior oral or written understandings between the Parties with
respect thereto. Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 shall
survive any termination of this Agreement. This Agreement may be modified
or amended only in a writing signed by duly authorized representatives of
the Parties hereto. If any part of this Agreement is adjudged to be
invalid or unenforceable, the Parties intend that such invalidity shall
not affect any other provision hereof. Any waiver or failure of any Party
to assert a right hereunder shall not constitute a waiver or excuse a
similar failure in any other circumstance. Licensee shall not assign any
of its rights or obligations under this Agreement without the prior
written consent of Licensor. Except to the extent prohibited by law or
regulation, this Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts, excluding
its provisions with respect to conflict of laws, and each Party consents
to the exclusive jurisdiction and venue of courts in Boston, Massachusetts
in all disputes relating to this Agreement. Headings in this Agreement
are for convenience only and are not intended to be used to interpret or
construe this Agreement. This Agreement may be executed in counterparts
and delivered by facsimile with the same effect as an original. Each of
the undersigned represents that such individual is duly authorized to
execute this Agreement.
Appendix A
Description of the Software
1. Diffusion Toolkit in binary code form: Diffusion Toolkit is a
software tool for the performance of data reconstruction and fiber
tracking for diffusion MR imaging, utilizing but not limited to tensor
data, diffusion spectrum imaging (DSI), high angular resolution diffusion
imaging (HARDI) data and Q-ball imaging data.
2. TrackVis in binary code form: TrackVis is a 3-dimensional
visualization program that allows real-time visualization and analysis of
the fiber track data that was created by Diffusion Toolkit.
