Applied BioMath Software Subscription Agreement
This Software Subscription Agreement (this “Agreement”) creates a legal agreement between Applied BioMath, LLC (“Applied BioMath”) and the person or entity accessing the SaaS Offering (as defined below) (“Subscriber”). This Agreement governs Subscriber's use of the Service (as defined below) and by countersigning the Quote, Subscriber agrees to be bound by this Agreement. Subscriber and Applied BioMath are individually hereinafter referred to as a “party” and collectively as the “parties”.
1. DEFINITIONS AND CONSTRUCTION.
1.1 Definitions. In this Agreement, unless the context otherwise requires, the following words and expressions will have the following meanings:
“Affiliate” means any entity or affiliated group, which directly or indirectly (a) controls a party, (b) is controlled by a party or (c) is under common control with a party, for as long as such relationship remains in effect, including any subsidiary thereof.
“Designated User” means, subject to Section 3.2, each of Subscriber's employees or contractors, in each case who are under the control of Subscriber and that Subscriber has authorized to use the Service.
“Documentation” means Applied BioMath’s online or printed (e.g., pdf) user guides, documentation, and help and training materials generally made available by Applied BioMath to subscribers of the SaaS Offering, as updated from time to time.
“Personal Information” means any data or information (regardless of the medium in which it is contained and whether alone or in combination): (a) that relates to an identified or identifiable individual, household, or device, including name, postal address, email address, telephone number and information about the health, opinions or beliefs of a person, including health information; or (b) that is subject to or regulated by: (i) the Health Insurance Portability and Accountability Act of 1996 (as amended, and together with any regulations promulgated thereunder, including without limitation the Health Insurance Reform: Security Standards (Security Rule)); (ii) the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009 (as amended); (iii) the General Data Protection Regulation 2016/679; (iv) Gramm-Leach-Bliley Act, also known as the Financial Services Modernization Act of 1999 (together with any regulations promulgated thereunder); (v) 201 CMR 17.00 et seq.; or (vi) any other law (including any data protection or breach notification law).
“Process” (including any grammatically inflected forms thereof) means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, including without limitation collection, recording, organization, structuring, storage, adaptation or alteration, access, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Quote” means a supplement or attachment to this Agreement executed by both parties that outlines the specific details [the Applied BioMath SaaS license, including number of Designated User seats, Subscription Term, and fees].
“SaaS Offering” means Applied BioMath’s proprietary software.
“Service” means the SaaS Offering, Documentation, and Standard Technical Software Support, collectively.
“Standard Technical Software Support” means Applied BioMath’s standard level of support of the Applied BioMath software platform generally provided by Applied BioMath to Subscriber of the SaaS Offering in Applied BioMath’s normal course of business. For the avoidance of doubt, this does not include scientific support.
“Subscriber Admin” means, subject to Section 3.2, an individual who is authorized by Subscriber to administer the Service on Subscriber’s behalf and to whom Subscriber (or Applied BioMath at Subscriber’s request) has supplied a user identification and password.
“Subscriber Data” means electronic data and information submitted by or for Subscriber to the Service or collected by Subscriber from the Service, or any other data made available by or on behalf of Subscriber to Applied BioMath in connection with this Agreement, in each case to the extent Applied BioMath Processes such data solely on behalf of Subscriber. For the avoidance of doubt, “Subscriber Data” does not include Blind Data (as defined in Section 5.2).
“Subscription Term” means the subscription term specified in the applicable Quote, as it may be extended pursuant to Section 9.2 and/or earlier terminated pursuant to Section 9.3.
1.2 Construction. In this Agreement, unless the context otherwise requires:
(a) Section headings are inserted for convenience only and do not affect the construction or interpretation of this Agreement;
(b) a particular law or statutory provision is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it;
(c) writing or written includes faxes and e-mail;
(d) a person includes a corporate or unincorporated body;
(e) any gender includes all genders;
(f) including, include, in particular, or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms; and
(g) words in the singular include the plural and vice versa.
1.3 Language. If this Agreement is translated, the English language text will prevail.
2. RESPONSIBILITIES.
Provision of Service. Subject to the terms and conditions of this Agreement, Applied BioMath hereby grants to Subscriber a limited, nonexclusive, non-transferable license to access and use the Service, during the Subscription Term, solely for the internal business purpose of quantitatively assessing the risk of developing a therapeutic, often performed at the new target or pre-lead identification stage, based on the likelihood that a therapeutic can be developed, that can meet a given desired target project profile, research project profile, or molecule project profile, or equivalent, and mechanism of action and relevant disease biology (e.g., target inhibition or occupancy, and dosing regimen, number of sites per cell, ligand concentration, etc.). The number of users authorized to access the Service at any given time may not exceed the number of Designated User seats specified in the applicable Quote. Subscriber will be solely responsible for limiting access to and usage of the Service to Designated Users and for ensuring that its Designated Users use the Service only as authorized hereunder and in compliance with all applicable laws and regulations. Subscriber is solely responsible for maintaining the confidentiality of the accounts and related passwords of Subscriber’s Designated Users and all use of such accounts. Subscriber shall be solely responsible for all use of the Service under Subscriber’s account, including by Subscriber’s Designated Users. Subscriber hereby agrees that the act or omission of a current or former Designated User shall be deemed the same as if performed by Subscriber. Subscriber will be responsible for providing the computer hardware, web browser (including installing any required browser extension), or mobile devices necessary to interface with the Service.
2.2 Subscriber Data.
(a) Applied BioMath will maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Subscriber Data. Those safeguards will include, but will not be limited to, measures designed to prevent access, use, modification or disclosure of Subscriber Data by Applied BioMath personnel except (i) to provide the Service and prevent or address service or technical problems, (ii) as compelled by law in accordance with the “Confidentiality: Compelled Disclosure” section below, or (iii) as expressly permitted in writing by Subscriber.
(b) Subscriber acknowledges that Applied BioMath neither requires nor desires access to any Personal Information for or in connection with the provision of the Service or any other activities under this Agreement and agrees not to supply or otherwise provide access to Applied BioMath any Personal Information, other than the office email addresses of the Subscriber personnel involved in the activities contemplated by this Agreement, unless expressly and unambiguously required by Applied BioMath in writing. Without limitation of the foregoing and for the avoidance of doubt, Subscriber shall ensure that Subscriber Data does not contain any Personal Information. Subscriber represents, warrants, and covenants that: (i) it has (and will have) Processed, collected, and disclosed all Subscriber Data in compliance with applicable law and provided any notice and obtained all consents and rights required by applicable law to enable Applied BioMath to lawfully Process Subscriber Data as permitted by this Agreement; (ii) it has (and will continue to have) full right and authority to make the Subscriber Data available to Applied BioMath under this Agreement; and (iii) Applied BioMath's Processing of the Subscriber Data in accordance with this Agreement or Subscriber's instructions does and will not infringe upon or violate any applicable law or any rights of any third party.
3. USE OF SERVICES.
3.1 Subscriptions. Access to the Service is purchased as a subscription and is limited to the number of Designated Users and Subscriber’s physical site listed in the applicable Quote.
3.2 Credentials. A Subscriber Admin’s or Designated User’s password may not be shared with any individual other than such specified Subscriber Admin or Designated User (as applicable). A Subscriber Admin identification may be permanently reassigned by Subscriber to a new Designated User replacing one who no longer requires ongoing use of the Service on Subscriber’s behalf. Subscriber Admins and Designated Users may include employees, consultants, contractors, and agents of Subscriber, in each case who are under the control of Subscriber, provided that no Subscriber Admin or Designated User may, under any circumstances, be a third party that engages in the provisioning of mathematical, computational and/or PK/PD modeling services without the prior written consent of Applied BioMath in each instance.
3.3 Subscriber Responsibilities. Subscriber will (a) be responsible for Subscriber Admins’ and Designated Users’ compliance with this Agreement, (b) use best efforts to prevent unauthorized access to or use of the Service,(c) notify Applied BioMath within twenty-four (24) hours of any known or suspected unauthorized access or use of the Service or any other known or suspected breach of security relating to the data, information or services provided therein and (d) use the Service only in accordance with the Documentation and applicable laws and government regulations.
3.4 Usage Restrictions. Subscriber will not (a) make the Service available to, or use the Service for the benefit of, anyone other than Subscriber, (b) sell, resell, license, sublicense, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, (e) attempt to gain unauthorized access to the Service or its related systems or networks, (f) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, (g) copy the Service or any part, feature, function or user interface thereof, (h) frame or mirror any part of the Service, other than framing on Subscriber's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (i) access the Service in order to build a competitive (internal or external) product or service, or (j) reverse engineer the Service (to the extent such restriction is permitted by law). In connection with this Agreement, Subscriber shall comply with all applicable laws.
3.5 Standard Technical Software Support. For as long as the Subscription Term remains in effect, Subscriber shall have unlimited telephone and e-mail correspondence with Applied BioMath’s Support Engineer (SE) during Applied BioMath’s normal business hours, 9:00am-5:00pm EST, Monday through Friday, excluding federal, state and Applied BioMath holidays. SE may respond to Subscriber’s emails and phone calls within 1-2 business days as defined above. Support Engineer and Subscriber Admin will work together to address technical issues. This support is for technical software support for the application itself and not for scientific support or questions.
4. FEES AND PAYMENT.
4.1 Subscription Fee Payment Terms. The subscription fees for Subscription Term will be invoiced upon successful implementation with Subscriber. The invoice shall be paid within 30 days of receipt of invoice. Except as otherwise expressly specified in this Agreement, payment obligations are non-cancelable and fees paid are non-refundable and quantities (including the number of Designated User seats) purchased cannot be decreased during the Subscription Term.
4.2 Disputes; Overdue Charges. Subscriber may withhold payment on the disputed portion of invoices until resolved, provided that Subscriber (i) makes the dispute in good faith; (ii) pays all undisputed amounts in accordance with the terms of this Agreement; and (iii) provides to Applied BioMath in writing, within seven (7) calendar days of receipt of the applicable invoice, a description of the disputed amounts. If Subscriber does not provide such notice within such 7-day period, all fees under such invoice shall be deemed undisputed. The parties shall negotiate in a timely, good faith manner to resolve any billing disputes or queries. If any invoiced amount is not received by Applied BioMath by the due date, then without limiting Applied BioMath’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
4.3 Suspension of Service. If any charge owing by Subscriber is overdue, Applied BioMath may, without limiting its other rights and remedies, suspend the Service until such amounts are paid in full.
4.4 Taxes. Applied BioMath's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Subscriber is responsible for paying all Taxes associated with its purchases hereunder. If Applied BioMath has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this section, Applied BioMath will invoice Subscriber and Subscriber will pay that amount unless Subscriber provides Applied BioMath with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Applied BioMath is solely responsible for taxes assessable against it based on its income, property and employees.
4.5 Future Functionality. Subscriber agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Applied BioMath regarding future functionality or features.
5. PROPRIETARY RIGHTS AND LICENSES.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Applied BioMath and its licensors reserve all of their right, title, and interest in and to the Service, including (a) its programming architecture and platform, (b) any improvements, enhancements, modifications or features for the Service or platform developed during the term of this agreement, and (c) all intellectual property rights in the foregoing. No rights are granted to Subscriber hereunder other than as expressly set forth herein.
5.2 License by Subscriber to Host Subscriber Data. Subscriber hereby grants to Applied BioMath and its Affiliates a worldwide, limited-term license to Process, host, copy, transmit, and display Subscriber Data, and to permit third party services providers working on Applied BioMath’s behalf to do the same, as necessary for Applied BioMath to provide the Service in accordance with this Agreement. Subject to the limited licenses granted herein, Applied BioMath acquires no right, title or interest from Subscriber or its licensors under this Agreement in or to any Subscriber Data. Notwithstanding the foregoing, Applied BioMath will have the right to utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally identifiable data or information resulting from Subscriber’s use of the Services (“Blind Data”). To the extent that any Blind Data is collected by Applied BioMath, such Blind Data will be solely owned by Applied BioMath and may be used by Applied BioMath for any lawful business purpose without a duty of accounting to Subscriber, provided that the Blind Data is used only in an aggregated form, without specifically identifying the source of the Blind Data.
5.3 License by Subscriber to Use Feedback. Subscriber hereby grants to Applied BioMath and its Affiliates a worldwide, perpetual, irrevocable, royalty-free, fully paid up license to use and incorporate into the Service any suggestion, enhancement request, recommendation, correction or other feedback provided by Subscriber or Subscriber Admins relating to the operation of the Service.
5.4 Federal Government End Use Provisions. Applied BioMath provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Applied BioMath to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
6. CONFIDENTIALITY.
6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Subscriber includes Subscriber Data; Confidential Information of Applied BioMath includes the Service, business terms and conditions, pricing, and Documentation; and Confidential Information of each party includes the terms and conditions of this Agreement (including pricing and other terms described on the applicable Quote), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by personnel of the Receiving Party who have not had access to the Disclosing Party’s Confidential Information.
6.2 Protection of Confidential Information. The Receiving Party will (a) use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own Confidential Information (but not less than reasonable care), (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding any other provision to the contrary, either party may disclose to potential acquirers, potential and existing lenders, and/or potential and existing investors the existence, terms and subject matter of this Agreement (including any Quote hereunder), provided that such third parties are advised by such party of the confidentiality requirements of this Agreement and are bound by an obligation of confidentiality to such party that serves to protect such information on terms no less restrictive than those contained in this Agreement.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
6.4 Return of Confidential Information. Upon request of the Disclosing Party, but at the latest upon completion or earlier termination of this Agreement, the Receiving Party will promptly return to the Disclosing Party or destroy (and upon the Disclosing Party’s written request, provide executive officer certification of such destruction) all written or tangible Confidential Information, as well as all written or tangible material which incorporates any Confidential Information, of the Disclosing Party, provided however, that the Receiving Party may keep one copy for archival and audit purposes as well as copies made as part of the Receiving Party’s ordinary course of business operations regarding the backing up of its electronic systems. All such copies will be bound by the terms and conditions of this Agreement.
6.5 Remedies. The parties expressly acknowledge and agree that any breach or threatened breach of this Section 6 by the Receiving Party may cause immediate and irreparable harm to the Disclosing Party that may not be adequately compensated by damages. Each party therefore agrees that in the event of such breach or threatened breach of this Section 6 by the Receiving Party, and in addition to any remedies available at law, the Disclosing Party shall have the right to seek equitable and injunctive relief, without the need to post bond, with respect to such a breach or threatened breach.
7. INDEMNIFICATION.
7.1 Indemnification by Applied BioMath. Applied BioMath will defend Subscriber against any claim, demand, suit or proceeding made or brought against Subscriber by a third party alleging that Subscriber’s use of the SaaS Offering in accordance with this Agreement infringes or misappropriates such third party’s copyright, trademark or trade secret rights (a “Claim Against Subscriber”), and will indemnify Subscriber from any damages, attorney fees and costs finally awarded against Subscriber as a result of, or for amounts paid by Subscriber under a court-approved settlement of, a Claim Against Subscriber, provided Subscriber (a) promptly gives Applied BioMath written notice of the Claim Against Subscriber, (b) gives Applied BioMath sole control of the defense and settlement of the Claim Against Subscriber (except that Applied BioMath may not settle any Claim Against Subscriber unless it unconditionally releases Subscriber of all liability), and (c) gives Applied BioMath all reasonable assistance, at Applied BioMath’s expense. If, in Applied BioMath’s opinion, an infringement or misappropriation claim related to the Service becomes likely, Applied BioMath may in its discretion and at no cost to Subscriber (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for Subscriber’s continued use of the Service in accordance with this Agreement, or (iii) terminate Subscriber’s access to the Service upon 10 days’ written notice and refund Subscriber any fees that Subscriber prepaid for access to the Service for the period following the effective date of termination. The above defense and indemnification obligations do not apply to the extent a Claim Against Subscriber arises from Subscriber’s breach of this Agreement.
7.2 Exclusive Remedy. This “Indemnification” section states Applied BioMath’s sole liability to, and Subscriber’s exclusive remedy against, Applied BioMath for any type of claim described in this section.
8. DISCLAIMERS; LIMITATION OF LIABILITY
8.1 Disclaimers. APPLIED BIOMATH DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, NOTHING CONTAINED IN THIS AGREEMENT WILL BE CONSTRUED AS A WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ON THE PART OF APPLIED BIOMATH THAT USE OF THE SERVICE WILL YIELD A DRUG PRODUCT OR OTHERWISE RESULT IN ACHIEVING THE OBJECTIVES OF ANY OF SUBSCRIBER’S RESEARCH OR DEVELOPMENT PROJECTS. THE SERVICE PROVIDED BY APPLIED BIOMATH IS PERFORMED AND PROVIDED ON AN “AS-IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. APPLIED BIOMATH DOES NOT WARRANT THAT THE SERVICE, ITS FUNCTIONALITY, OR ITS WORK PRODUCT WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE SERVICE, ITS FUNCTIONALITY, OR ITS WORK PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE, OR WITHOUT DELAY. SUBSCRIBER ACKNOWLEDGES THAT, AS A SAAS-BASED SERVICE, THE FUNCTIONALITY AND INTERFACES OF THE SERVICE MAY CHANGE OVER TIME.
8.2 Limitation of Liability. APPLIED BIOMATH'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE 6 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
8.3 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST REVENUES OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY IN THIS SECTION 8.3 WILL NOT APPLY WITH RESPECT TO A BREACH BY SUBSCRIBER OF SECTION 2.2(b) OR SECTION 3, A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, OR TO THE EXTENT PROHIBITED BY LAW.
9. TERM AND TERMINATION
9.1 Term. The term of this Agreement is coterminous with the Subscription Term. References in this Agreement to either the termination of the Subscription Term or the termination of this Agreement will be interpreted to mean both the termination of the Subscription Term and the termination of this Agreement. The Subscription Term and the Agreement may be renewed upon mutual agreement.
9.2 Termination. A party may terminate this Agreement for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9.3 Refund or Payment upon Termination. If this Agreement is terminated by Subscriber in accordance with Section 9.3 above, Applied BioMath will refund Subscriber pro rata fees that Subscriber prepaid for access to the SaaS Offering, less a 25% early termination fee, for the period following the effective month of termination. If this Agreement is terminated by Applied BioMath in accordance with the “Termination” section above, Subscriber will pay any fees that Subscriber would otherwise have had to pay for the remainder of the Subscription Term had it not been terminated. In no event will termination relieve Subscriber of its obligation to pay any fees payable to Applied BioMath for the period prior to the effective date of termination.
9.4 Subscriber Data Portability and Deletion. Upon request by Subscriber made within sixty (60) days after the effective date of termination or expiration of this Agreement, Applied BioMath will make the Subscriber Data available to Subscriber for export or download as provided in the Documentation, subject to Subscriber’s payment of Applied BioMath’s standard data export fees then in effect. After such 60-day period, Applied BioMath will have no obligation to maintain or provide any Subscriber Data, and may in its sole discretion thereafter delete or destroy all copies of Subscriber Data in its systems or otherwise in its possession or control as provided in the Documentation, unless legally prohibited. Applied BioMath’s storage of Subscriber Data during and after such 60-day period will be subject to Applied BioMath’s standard data storage fees then in effect.
9.5 Surviving Provisions. Sections 1, 4, 5, 6, 7, 8, 9.5, 9.6, and 10 will survive any termination or expiration of this Agreement.
10. GENERAL PROVISIONS
10.1 Subscriber Insurance. Subscriber will, at its expense, maintain a policy of general liability insurance in commercially reasonable amount to insure it, its employees and agents, against all claims and liabilities arising out of or related to Applied BioMath’s performance of this Agreement. Evidence of such coverage will be presented to Applied BioMath as requested upon execution of this Agreement.
10.2 Export Compliance. The Service, other Applied BioMath technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Applied BioMath and Subscriber each represents that it is not named on any U.S. government denied-party list. Subscriber will not permit any Subscriber Admin to access or use the Service in or by a national of a U.S.-embargoed country or in violation of any U.S. export law or regulation.
10.3 Entire Agreement and Order of Precedence. This Agreement (including the applicable Quote, which is incorporated into this Agreement by reference), is the entire agreement between Applied BioMath and Subscriber regarding Subscriber’s use of Service and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Without limiting the foregoing, additional or different terms in any written communication from Subscriber (such as a purchase order) are void. No provision of any purchase order or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) Quote, (2) the main body of this Agreement, and (3) the Documentation.
10.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.5 Third-Party Beneficiaries. There are no other third-party beneficiaries under this Agreement.
10.6 Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c) except for notices of termination or an indemnifiable claim (“Legal Notices”), the day of sending by email. Notices will be addressed to the recipient at the recipient’s address indicated at the beginning of this Agreement or such other address as the recipient may from time to time specify for Legal Notices.
10.7 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
10.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
10.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld) and any attempted assignment without such consent will be void and of no effect. Notwithstanding the foregoing, either party may assign this Agreement in its entirety without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.10 Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement (or the performance of or access to the Service), other than payment obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action; provided that the delayed party: (a) gives the other party written notice of such cause promptly; and (b) uses its reasonable efforts to correct such failure or delay.
10.11 Governing Law. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
10.12 Venue. The state and federal courts located in Boston, Massachusetts will have exclusive jurisdiction over any dispute relating to this Agreement, and each party consents to the exclusive jurisdiction of those courts.
10.13 Counterparts. This Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .PDF or .JPG format), and electronic signatures will be deemed to be original signatures.
Last revised and effective as of December 1, 2022.