MFA Suite™: INCA Application Commercial Non Exclusive End-User License

LICENSING PROCESS OVERVIEW

After you decide to license and agree to the terms below, you will be asked to provide contact information through the checkout system. Payment can be made in the form of a Purchase Order or using a credit card. Upon successful completion of this process, including necessary review and approval of your license application, you will receive an email with download instructions. (Application approval may take 5-7 business days). Detailed checkout instructions are available at this link

An institutional purchasing agent may create and pay for a product order on behalf of the end user at the licensing institution. Separate “billing” (purchasing) and "delivery" (end user) contact information will be collected at checkout. This option provided for a purchasing agent is intended to be used only within an institution, and only by an agent with requisite authority to enter into an agreement on behalf of the institution. IT IS IMPERATIVE THAT THE ORDER SUBMITTER/PAYER HAVE THE AUTHORITY TO ENTER INTO AN AGREEMENT ON BEHALF OF THE INSTITUTION TO WHICH THE SOFTWARE WILL BE LICENSED.

PLEASE REVIEW THIS SECTION CAREFULLY BEFORE PROCEEDING

Please carefully read the following MFA Suite™, INCA Non-Exclusive End-User License Agreement. 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. By selecting the "I accept the terms in the license agreement" option below this Agreement, you, as an authorized representative of your institution, indicate your institution’s irrevocable acceptance of its terms and conditions and agree to be bound as set forth therein. Further, your acceptance signifies your institutions’ understanding and acknowledgment that this Agreement constitutes and contains the total agreement between your institution and Vanderbilt University with respect to this transaction. In accepting this Agreement, you further acknowledge that any agreements entered into by your institution prior or contemporaneously with this Agreement, whether oral or in writing, are excluded. 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, acknowledgment, purchase order or any other document sent by or on behalf of you or the organization you represent in this transaction shall be void and of no effect.
INCA Isotopomer Network Compartmental Analysis NON-EXCLUSIVE END-USER LICENSE AGREEMENT This non-exclusive end-user Agreement (“Agreement”), is entered into between Vanderbilt University, a not-for-profit corporation, organized and existing under the laws of the state of Tennessee with offices at 1207 17th Avenue South, Suite 105, Nashville, Tennessee 37212 (“Vanderbilt”), and the institution that registers to use the Software (“Licensee”). Prior to such registration in accordance with this Agreement, the Licensee shall have no rights or license in connection with the Software or this Agreement. Vanderbilt and Licensee are referred to individually as “Party” and collectively as “Parties”. RECITALS WHEREAS, INCA: Isotopomer Network Compartmental Analysis is a software suite (the “Software”, as further defined hereinafter) that was developed at Vanderbilt and at the Massachusetts Institute of Technology (MIT) by Prof. Jamey D. Young (the “Author”) during and after his transition from MIT to Vanderbilt; WHEREAS Vanderbilt and MIT have protected their rights in the Software via registration of a copyright at the U.S. Library of Congress; WHEREAS, the Author has assigned his entire right, title and interest in and to the Rights jointly to Vanderbilt and MIT, resulting in Vanderbilt and MIT having an undivided interest in and to the same; and WHEREAS, Vanderbilt, via an Inter-institutional Agreement (“IIA”) between Vanderbilt and MIT with an effective date of October 1, 2013, has the right to seek and negotiate commercial licenses to the Rights (as such term is further defined hereinbelow) on behalf of both Vanderbilt and MIT, and to collect and distribute revenues therefrom; WHEREAS, Licensee wishes to obtain a nonexclusive license under the Rights to use the Software for its internal research and development efforts; and WHEREAS, Vanderbilt is willing to grant such a license to Licensee, in consideration of Licensee’s satisfaction of its obligations hereunder, and for other good and valuable consideration as set forth below. NOW, THEREFORE, the Parties agree as follows: 1. Definitions. 1.1 “Software License Fee” means the fee paid by Licensee in U.S. dollars as set forth hereinafter for the license granted in accordance with the terms and conditions set forth in this Agreement. Licensee is responsible for any and all taxes. 1.2 “Software” means executable code for INCA: Isotopomer Network Compartmental Analysis version 1.0, including future releases and updates, if any are provided by Vanderbilt to Licensee, and all associated documentation. 1.3 “Hardware” means the computer workstations, peripherals, modems and other equipment for operating the Software which must meet the following minimum requirements: (i) The basic operations require a computer with MATLAB plus Statistics and Optimization toolboxes installed. (ii) Parallel computations require one of the following: EITHER 1)A cluster or multiprocessor environment with a.Condor job scheduler b.MATLAB and MATLAB Compiler toolbox installed on frontend node (used to run INCA and to compile the serve function for distribution to compute nodes) c.Compute node access to the MATLAB Compiler Runtime (MCR) library d.Compute node access to a shared directory where all input/output files are saved/read by the frontend node (Note: directory name must not contain spaces!) OR 2)The MATLAB Parallel Computing toolbox and Distributed Computing Server (currently untested). 1.4 “Rights” means the rights in and to the Software including but not limited to those embodied in copyright registration No. TXu 1-881-690. 1.5 "Registration Page" means the portion of the web site used by Licensees to enter information permitting the licensing of the Software. 2. Software License; Restrictions. 2.1 License. Subject to the terms and conditions of this Agreement and payment of the Software License Fee, Vanderbilt hereby grants to Licensee, and Licensee hereby accepts, a limited, non-transferable, non-exclusive right and license to the Rights to use the Software subject to the restrictions set forth in this Agreement and for the term of the Agreement. The Software provided hereunder and all copies thereof are proprietary to Vanderbilt and MIT and title thereto remains in Vanderbilt and MIT. Other than the license to the Rights granted to Licensee hereunder, Licensee acquires no rights in the Software, including patents, copyrights, trademarks and trade secrets, if any, embodied therein. Licensee acknowledges and agrees that Vanderbilt and MIT claim that the Software contains valuable proprietary information and trade secrets developed or acquired by Vanderbilt and MIT. Licensee shall use reasonable efforts to secure and protect the Software in a manner consistent with the maintenance of Vanderbilt’s and MIT’s rights therein and to take reasonable action by instruction or agreement with its employees or independent contractors who are permitted access to the Software to satisfy its obligations hereunder. Vanderbilt has not provided Licensee with a copy of, and Licensee acquires no rights of any kind with respect to, the Software source code. Licensee agrees that Vanderbilt and MIT reserve the right to grant commercial licenses to third parties. 2.2 Restrictions on Use. (i) Licensee shall use the Software only for its internal research and development purposes. (ii) Additionally, Licensee may make one copy of the Software but only for: (i) archival or backup purposes; and (ii) on a computer server that may be accessed by multiple independent users, for training purposes but users may not copy the Software. (iii) Licensee shall not do or attempt to do any of the following: (i) modify, adapt, merge, decompile, disassemble or reverse engineer the Software or any part thereof; (ii) create derivative works based on the Software; (iii) utilize the Software in any closed loop system, which provides medical care without human intervention; (iv) make copies of the Software or share or disclose any applicable passwords or access codes to the Software, except as otherwise permitted herein; (v) sublicense, rent, lease, lend, export or otherwise transfer the Software to any third party or to use in any country where prohibited by applicable law; (vi) provide remote processing or service bureau services utilizing the Software; (vii) allow any unauthorized third party to implement, access, or operate the Software; or (viii) remove or permit to be removed any labeling required by applicable U.S. law or other proprietary, confidential, or copyright notices, markings, or legends. (iv) Licensee shall only use the Software in accordance with applicable federal, state and local laws and regulations. (v) Licensee 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 related to this Agreement. Licensee shall defend, indemnify and hold MIT 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 MIT and its successors or assigns with respect to the matters related to this Agreement. These indemnification obligation shall survive the termination or expiration of this Agreement. (vi) Licensee agrees that this Agreement permits five (5) or fewer designated employees to be valid users of the Software. 3. License Fees: Licensee shall pay to Vanderbilt a non-refundable, non-creditable license issue fee comprised of the following items: (i) Software License Fee of $8,000 All invoices received from Vanderbilt shall be paid by Licensee in full promptly upon receipt. All invoices shall be submitted and addressed to the billing information provided by the Licensee on the Registration Page. This Agreement shall be null and void unless payment of the Software License Fee is received by Vanderbilt within sixty (60) calendar days of the Term Commence Date. 4. Limited Support; Updates. 4.1 Payment of the Software License Fee entitles Licensee to incidental reasonable assistance by email (“Limited Support”). Limited Support is provided by e-mail queries to j.d.young@vanderbilt.edu or other contact point as may be designated by Vanderbilt from time to time. In order for Licensee to receive the Limited Support set forth herein, Licensee must be using the latest version and all current releases and updates of the Software on the Hardware. Limited Support does not include responding to Licensee if, in Vanderbilt’s reasonable opinion, Licensee fails to provide sufficient information, as reasonably requested by Vanderbilt, to enable Vanderbilt to identify, reproduce and analyze the reported problem; Vanderbilt reserves the right to charge additional fees for such support. 4.2 Nothing herein shall be construed to require Vanderbilt to develop any new versions of the Software. If Vanderbilt develops new versions of the Software, the new versions will be available to Licensee upon payment of additional fees. 5. Limited Warranty; Disclaimers; Limitations of Liability. 5.1 Limited Warranty. EXCEPT AS STATED IN THIS SECTION 5.1, THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY, Vanderbilt and MIT severally warrants that is has the authority to grant the licenses contained in this Agreement. These warranties shall remain in effect provided: (i) Licensee has not improperly installed, maintained, configured, altered or used the Software; (ii) Licensee has complied with all configuration requirements; and (iii) Licensee is not in breach of any provision of this Agreement. 5.2 Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY SET FORTH IN SECTION 5.1 IS IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS. VANDERBILT AND MIT SEVERALLY DOES NOT MAKE AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE AND SUPPORT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER VANDERBILT AND/OR MIT KNOWS OR HAD REASON TO KNOW OF LICENSEE’S PARTICULAR NEEDS. NO EMPLOYEE, AGENT, DEALER OR DISTRIBUTOR OF VANDERBILT AND MIT IS AUTHORIZED TO MODIFY THE LIMITED WARRANTY, OR TO MAKE ANY ADDITIONAL WARRANTIES. SOME COUNTRIES AND STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS, AND LICENSEE MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY OR STATE TO STATE. 5.3 Limitation of Liability. Vanderbilt’s AND MIT’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. Vanderbilt and MIT shall have no liability for consequential, exemplary, indirect, special or incidental damages whether based on contract, tort or any other legal theory, arising out of or related to this Agreement or the inability to use the Software or Limited Support, nor shall Vanderbilt or MIT be liable for any loss of data or lost profits of Licensee, even if Vanderbilt or MIT is apprised of the likelihood of such damages occurring. Vanderbilt’s and MIT’s total liability under this Agreement for any reason shall not exceed the amount of the Software License Fee paid under this Agreement. Licensee acknowledges and agrees that licensing the Software for the Software License Fee under this Agreement reflects the allocation of risks expressed by (but not limited to) the above limitations of liability. Modification of such allocation would affect the Software License Fee charged by Vanderbilt, and in consideration of Vanderbilt charging the Software License Fee, Licensee agrees to such allocation of risks. SOME COUNTRIES OR STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY. 6. Assignment. Licensee shall not assign or transfer this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Vanderbilt. Vanderbilt may assign its rights or obligations hereunder without the consent of or notice to Licensee. This Agreement shall inure to the benefit of and bind successors and permitted assigns of Vanderbilt and Licensee. 7. Term; Termination; Survival. 7.1 Term; Termination. The term of this Agreement commences upon Vanderbilt’s delivery of download instructions to Licensee (“Term Commence Date”) and remains effective until the earlier of: (a) one year from the “Term Commence Date” whereupon it automatically terminates, or (b) earlier termination by either Party (the “Term”). This Agreement will automatically terminate if Licensee fails to comply with any term or condition of this Agreement. Licensee may also terminate this Agreement at any time during the Term by destroying all copies of the Software in its possession and notifying Vanderbilt. 7.2 Obligations upon Termination. Upon termination of this Agreement, the license granted to Licensee shall immediately terminate and Licensee shall: (i) promptly return to Vanderbilt all copies of the Software and all documentation associated therewith; (ii) immediately discontinue any and all use of the Software; (iii) immediately erase, remove or destroy from any and all equipment all electronic or machine-readable copies of the Software; (iv) certify in writing to Vanderbilt that Licensee has completed the foregoing and that no copies of the Software exist in Licensee’s possession or control and Licensee has complied with Licensee’s obligations set forth in this Agreement; and (v) comply with its obligations set forth in this Agreement. Termination of this Agreement shall not limit either party from pursuing other remedies available to it (to the extent such other remedies are not expressly limited hereunder), including injunctive relief. 7.3 Survival. Sections 4.2, 5, 7.3 and 8 and any provision of this Agreement which by its terms provides for survival shall survive the expiration or termination of this Agreement. 8. General Provisions. 8.1 Notices. All notices required or permitted relating to a claim or breach of this Agreement shall be in writing and sent to: (i) if to the Licensee: the address provided by Licensee when ordering the Software; and (ii) if to Vanderbilt: Assistant Vice Chancellor, Center for Technology Transfer and Commercialization, Vanderbilt University, 1207, 17th Avenue, Suite 105, Nashville, TN 37212. Either Party may substitute their address from time to time by written notice to the other and shall be deemed validly given upon receipt of such notice given by certified mail, postage prepaid, or personal or courier delivery. All Limited Support or other notices relating to the usage of the Software will be provided by Vanderbilt either via telephone or e-mail. 8.2. Governing Law; Severability. This Agreement and performance hereunder shall be governed and construed in accordance with the laws of the U.S. and of the State of Tennessee, without giving effect to provisions thereof regarding conflict of laws. Each Party hereto hereby submits to the exclusive jurisdiction of the United States District Court for the Middle District of Tennessee and of any Tennessee state court sitting in Nashville, Tennessee for the purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. Each Party hereto irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. All agreements, clauses and covenants contained herein are severable, and in the event any of them shall be held to be unconstitutional, invalid, illegal, or unenforceable, the remainder of this Agreement shall be interpreted as if such unconstitutional, invalid, illegal or unenforceable agreements, clauses or covenants were not contained herein. 8.3. Integration; Waiver; Modification. The Parties hereto acknowledge and agree that they have read this Agreement in its entirety and understand and agree to be bound by all of its terms and conditions, and further agree that this Agreement and any exhibits or schedules hereto constitute a complete and exclusive statement of the understanding between the Parties with respect to the subject matter hereof, which supersede any and all other communications between the parties, whether written or oral. Any prior agreements, promises, negotiations or representations related to the subject matter hereof not expressly set forth in this Agreement, or any exhibits or schedules hereto, are of no force and effect. The failure by either Party to exercise any right provided hereunder shall not be deemed a waiver of such right. This Agreement may be amended, modified or supplemented only by a writing signed by the Parties to this Agreement. Such amendments, modifications or supplements shall be deemed as much a part of this Agreement as if so incorporated herein. 8.4. Independent Contractor. Nothing contained in this Agreement shall be construed to create a joint venture or partnership between the Parties. 8.5. Force Majeure. Neither Party hereto shall be liable for any failure or delay in performance of its obligations hereunder by reason of any event or circumstance beyond its reasonable control, including without limitation, acts of God, war, terrorism, riot, strike, labor disturbance, fire, explosion, flood, or shortage or failure of suppliers. 8.6 Import/Export Restrictions. Licensee shall comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and shall not export or re-export the Software in violation of any such restrictions, laws or regulations, or without all necessary approvals. This software was exported from the United States in accordance with the Export Administration Regulations. Diversion 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 covering the Software, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; 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, or the U.S. Commerce Department’s Entity List. Licensee agrees to the foregoing and represents and warrants that it complies with these conditions. 8.7 U.S. Government End-Users. The Software is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End-Users acquire the Software with only those rights set forth herein. 8.8 Licensee Outside the U.S. If Licensee is located outside the U.S., then the provisions of this Section 8.8 shall apply: (i) Les parties aux presentes confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui s'y rattache, soient rediges en langue anglaise. (translation: "The Parties confirm that this Agreement and all related documentation is and will be in the English language."); and (ii) Licensee is responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Software, and Licensee represents that it has complied with any applicable laws and regulations or registration procedures required by applicable law to make this Agreement enforceable. 8.9 Licensee is hereby notified that both MIT and Vanderbilt severally reserve the right to utilize the Rights for their respective research, teaching and educational purposes. 8.10 Licensee and users of INCA are hereby informed that the operation of INCA requires the use of “FindJObj”, a third party code. Additional terms and conditions required as a result are outlined below and is included as herein. LICENSE FOR “FindJObj” a third party code that is distributed with INCA Copyright (c) 2009, Yair Altman All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.