Please carefully read the following ForecastED Beta Evaluation License Agreement. By selecting the "I accept the terms in the license agreement" option below this Agreement, you indicate your irrevocable acceptance of its terms and conditions and agree to be bound as set forth therein. Further, your acceptance signifies your understanding and acknowledgment that this Agreement constitutes and contains the total agreement between you and Vanderbilt University with respect to this transaction. In accepting this Agreement, you further acknowledge that any agreements entered into prior or contemporaneously with this Agreement are excluded, whether oral or in writing. By selecting the "I accept the terms in the license agreement" option, you specifically acknowledge, represent, and agree that any other terms and conditions contained in an invoice, acknowledge, purchase order or other document sent by or on behalf of you or the organization you represent in this transaction shall be void and of no effect. Finally, your selection of the "I accept the terms in the license agreement" option is a representation and warranty that you have the requisite authority and legal capacity to bind your organization to this Agreement.
ForecastED
EVALUATION LICENSE AGREEMENT
THIS EVALUATION LICENSE AGREEMENT (“Agreement”) is made effective as of the date of Licensee’s assent hereto (“Effective Date”) by and between Vanderbilt University, a not-for-profit corporation organized under the laws of the State of Tennessee (“Vanderbilt”) and the end user who will evaluate the Software (“Licensee”) and who is identified in its registration on Vanderbilt’s www.VUeinnovations.com website. This constitutes a legally binding agreement and governs your organization’s use of the Software (as that term is defined below).
PLEASE CAREFULLY READ THE FOLLOWING AGREEMENT. BY CLICKING ON THE "I ACCEPT" BUTTON AT THE END OF THIS AGREEMENT, YOU INDICATE YOUR ACCEPTANCE OF ITS TERMS AND CONDITIONS AND AGREE TO BE BOUND AS SET FORTH HEREIN. YOU REPRESENT AND WARRANT THAT YOU HAVE THE REQUISITE AUTHORITY AND LEGAL CAPACITY TO BIND YOUR ORGANIZATION TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK "I REJECT" AT THE BOTTOM OF THIS AGREEMENT.
1. License Grant. Vanderbilt grants Licensee a royalty-free, non-exclusive and non-transferable evaluation license to use the software developed by Vanderbilt called “ForecastED” (“Software”). The Software was developed at Vanderbilt University Medical Center and is a novel application of discrete event simulation that permits providers, administrators, and researchers to forecast emergency department crowding in real time, regardless of how crowding is defined. Licensee will access the Software through Vanderbilt’s website, www.vueinnovations.com.
This license shall allow Licensee to use the Software solely for and only for Licensee’s internal evaluation use and for no other purpose. This license shall specifically preclude Licensee from using the Software in any clinical setting. In addition:
a. Licensee agrees that the Software is provided solely for the use of Licensee at a single site designated by the Licensee in its registration on Vanderbilt’s www.VUeinnovations.com website.
b. Licensee shall not duplicate, provide, or otherwise make available the Software or any other material provided in support of the Software, including but not limited to documentation and the Software code, in any form, to any person, party, or entity without the prior written consent of Vanderbilt. Such prohibitions shall not apply to disclosure by Licensee to its employees and consultants to the extent that such disclosure is reasonably necessary to Licensee's use of the Software.
c. Licensee shall not to use any portion of the Software in any machine-readable form outside of the Software without the prior written consent of Vanderbilt.
d. Licensee shall take all appropriate action with its employees and consultants, by agreement, to satisfy its obligations under this Agreement with respect to use, copying, transference, protection, and security of the Software, and any other materials provided by Vanderbilt to Licensee as a result of this Agreement.
e. Licensee shall only use the Software for the purpose of forecasting hospital emergency department crowding within its own facilities.
f. Licensee shall not utilize the Software in any closed loop system, which provides medical care or manages the delivery of medical services without human intervention.
g. Licensee shall only use the Software in accordance with applicable federal, state and local laws and regulations.
h. Licensee agrees and acknowledges that the Software requires the Licensee to exercise independent judgment in the delivery and management of emergency medical services. Licensee further agrees that nothing in the Software or anything else provided pursuant to this Agreement constitutes or is intended to be professional medical advice or a substitute for medical knowledge or judgment. Vanderbilt assumes no liability or responsibility for the decision to provide a particular treatment, instruction or prescription to a particular patient. Customer shall defend, indemnify and hold Vanderbilt and its officers, trustees, faculty, staff, employees, students, agents and their respective successors or assigns harmless from and against all claims, liabilities and expenses (including reasonable attorneys’ fees) related to any third-party claims against Vanderbilt and its successors or assigns with respect to the matters set forth in this Agreement. This indemnification obligation shall survive the termination or expiration of this Agreement.
2. Title. Vanderbilt retains all right, title and interest in the Software and any copies. Except as expressly granted in Section 1, no license, right or interest in any Vanderbilt patent, trademark, copyright, trade name, service mark, data, or know-how is granted hereunder. Licensee agrees not to (i) attempt to reverse engineer, decompile, translate or disassemble the Software; (ii) rent, lease or transfer the Software; (iii) disclose the results of any Software performance benchmarks to any third party without Vanderbilt’s prior written consent; (iv) create derivative works based on the Software; (v) provide remote processing or service bureau services utilizing the Software; (vi) allow any unauthorized third party to implement, access, or operate the Software; or (vii) remove or permit to be removed any labeling required by applicable U.S. law or other proprietary, confidential, or copyright notices, markings, or legends.
3. Term and Termination. Licensee’s license to use the Software shall commence on the date this Agreement is fully executed and shall terminate on the earlier of (i) the date which is six (6) months from the Effective Date and (ii) the date on which there occurs a breach or default by the Licensee. Upon termination of this Agreement, Licensee shall (i) immediately cease use of the Software and (ii) destroy all copies of the Software within Licensee’s possession. Sections 2, 4, 7 and 9 shall survive termination of this Agreement.
4. Confidentiality. Licensee acknowledges that the Software and documentation contain Vanderbilt confidential and proprietary information. Licensee agrees to maintain the confidentiality of the Software and documentation during the term of this Agreement. For a period of 10 years after termination of this Agreement, Licensee agrees to take commercially reasonable steps to ensure that confidential and proprietary information is not disclosed or distributed by Licensee or its agents or employees.
5. Disclaimer of Warranty. THE SOFTWARE IS SUPPLIED UNDER THIS AGREEMENT ON A STRICTLY ‘AS IS’ BASIS, WITHOUT WARRANTY OF ANY KIND OR NATURE. VANDERBILT DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES RELATIVE TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. Technical Support. Vanderbilt shall have no obligation to correct errors in, provide updates for or otherwise support the Software.
7. Limitation of Liability. VANDERBILT’S ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY FOR A BREACH OF THIS AGREEMENT SHALL BE TERMINATION OF THIS AGREEMENT BY RETURNING OR DESTROYING THE SOFTWARE AND VANDERBILT REFUNDING THE LICENSE FEE. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL VANDERBILT BE LIABLE FOR ANY DAMAGES WHATSOEVER AND HOWSOEVER ARISING WHETHER DIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SOFTWARE OR RELATED DOCUMENTATION, EVEN IF VANDERBILT OR A VANDERBILT AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Licensee acknowledges and agrees that licensing the Software for the License Fees under this Agreement reflects the allocation of risks expressed by (but not limited to) the limitations of liability contained in this Agreement. Modification of such allocation would affect the license fees charged by Vanderbilt, and in consideration of Vanderbilt permitting Licensee to evaluate the Software at no cost to Licensee, Licensee agrees to such allocation of risks. SOME COUNTRIES OR STATES MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY.
8. Notices. Any notice with respect to this Agreement shall be deemed given on the date when sent by facsimile transmission, with receipt of confirmation, or when mailed by registered mail addressed to the party to be notified at its address set forth below or such other address as is designated by writing.
To Vanderbilt:
Vanderbilt University
Center for Technology Transfer and Commercialization
1207 17th Avenue South, Suite 105
Nashville, Tennessee 37212
(615) 343-4465 (office)
(615) 343-4419 (facsimile)
Attn: Peter C. Rousos
peter.c.rousos@vanderbilt.edu
To Licensee:
At the address provided by Licensee when it registered on Vanderbilt’s www.VUeinnovations.com website.
9. Export Control. Licensee shall comply with all export laws and regulations of the United States and shall not export or re-export the Software in violation of any such laws or regulations, or without all necessary approvals. Diversion of the Software contrary to U.S. law is prohibited. Neither the Software nor the underlying information or technology may be downloaded or otherwise exported or re-exported (i) into Cuba, Iran, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions applicable to the Software; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons, the U.S. Commerce Department's Denied Persons List, Entity List or Unverified List and Non-proliferation Sanctions List. Licensee agrees to the foregoing and represents and warrants that it complies with these conditions and shall continue to operate in compliance with these representations. No party will export, directly or indirectly, any Software without first obtaining any required export license or government approval and without first obtaining advance written permission from Vanderbilt’s Division of Sponsored Research.
10. Miscellaneous. This Agreement constitutes the entire agreement between the parties concerning Licensee’s use of the Software. This Agreement shall be governed and construed under the laws of the State of Tennessee. The parties agree to the exclusive jurisdiction of the courts of Tennessee, or the United States District Court for Tennessee. Vanderbilt and Licensee are not partners or joint venturers under this Agreement, and nothing shall be construed as causing them to be such. Neither party shall have authority to act in the other’s name, nor act for the other’s benefit, except as is expressly provided for in this Agreement. Licensee shall not use Vanderbilt’s name or trademark or any adaptation of either in any advertising, promotional or sales literature without the prior written consent of Vanderbilt. The failure by Vanderbilt to exercise any right hereunder shall not operate as a waiver of Vanderbilt’s right to exercise such right or any other right in the future. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties and any additional terms, including any purchase order terms shall not apply. Licensee shall neither assign its rights nor delegate its duties under this Agreement without the prior written consent of Vanderbilt.
11. Effective Date. This Agreement shall be effective on the date Vanderbilt delivers the Software available to the Licensee.