COLUMBIA UNIVERSITY DATA LICENSE AGREEMENT
This License Agreement (the “Agreement”) is made by and between The Trustees of Columbia University in the City of New York (“Columbia”), and You (hereinafter referred to as “Company”).
1 - DEFINITIONS
1.01 “Data” means the applicable climate information, which includes maps, images, and discussion text associated with forecast information collected, summarized, produced, developed and/or provided by Columbia to Company as part of the Service.
1.02 “Derivative(s)” means any product that is based on or derived from the Data, including but not limited to a revision, modification, improvement, enhancement, correction, translation, abridgment, condensation, expansion, or any other form in which the Data may be recast, transformed, or adapted including any and all processed, reprocessed or enhanced Data, interpretations, reports or analyses.
1.03 “Service” means access to and use of Columbia’s on-line Map Rooms made available to Company at the web links set forth in Exhibit A and access to and use of the Data.
1.04 “Territory” means worldwide.
2 – LICENSE GRANT; CONFIDENTIALITY
2.01 Subject to the terms and conditions of this Agreement, Columbia grants to Company a non-exclusive, non-sublicensable license to use the Service during the term of this license solely for Company’s purposes as follows: (i) access the Service and display, read or print the Data; (ii) use the Data to create, use, and reproduce Derivatives; (iii) include portions of the Data and Derivatives in documents, in print and electronic format, prepared solely for Company’s internal use and distribution, and (iv) use portions of the Data and Derivatives to make, create, reproduce, distribute, market and sell products to Company customers, provided, however, that in the cases of 2.01(iii) and (iv), Columbia shall at all times be credited with ownership of the Data. Such license shall remain in effect for a period of one month or one year from the Effective Date in accordance with the License Fee per term defined in 3.01. The foregoing notwithstanding, Company’s rights and license are subject to the rights of any government entity pursuant to any funding agreement between Columbia and said government entity. All rights not specifically granted herein are reserved to Columbia.
2.02 All rights not specifically granted herein are reserved to Columbia. Title to the Data shall at all times remain solely and exclusively with Columbia. Except as expressly provided under this Section 2, no right or license is granted (expressly or by implication or estoppel) by Columbia to Company under any tangible or intellectual property, materials, patent, patent application, trademark, copyright, trade secret, know-how, technical information, data or other proprietary right.
2.03 Columbia reserves the right to add or withdraw Information and modify or change the Service without notice. Columbia may, but is not required to, provide notice to Company in advance or concurrent with the effective date of any such changes which are significant.
2.04 Company may not copy, reproduce, transmit, display, commercially exploit, distribute or disclose to third parties, access or use (a) substantial portions of the Data, (b) screengrabs of webpages or Data viewed or accessed through the Service, or (c) links to any webpages included in the Service.
3 – LICENSE FEE
3.01 License Fee. In consideration of the license granted under Section 2 of this Agreement, Company shall pay Columbia a nonrefundable, non-recoverable and non-creditable license fee in the sum of $50,000 per year for seasonal forecasts, payable within five (5) days of the Effective Date (the execution date being the “Effective Date”).
4 - GOVERNMENT CLEARANCE
4.01 This Agreement is subject to, and Company will comply with, all United States laws and regulations controlling the export of technical data and other commodities and technology to which such laws and regulations may apply.
5 - TERMINATION
5.01 This Agreement becomes effective upon the Effective Date and, unless sooner terminated in accordance with any of the provisions herein, remains in full force and effect for a period of one month or one year from the Effective Date in accordance with the License Fee per term defined in 3.01.
5.02 In the event an order for relief is entered against Company under the Federal Bankruptcy Code, or an order appointing a receiver for substantially all of Company’s assets is entered by a court of competent jurisdiction, or Company makes an assignment for the benefit of creditors, or a levy of execution is made upon substantially all of the assets of Company and such levy is not quashed or dismissed within thirty (30) days, this Agreement automatically terminates effective on the date of such order or assignment or, in the case of such levy, the expiration of such thirty day period; provided, however, that such termination will not impair or prejudice any right of remedy that Columbia might have under this Agreement.
5.03 Company may terminate this Agreement by giving Columbia written notice at least ninety (90) days prior to such termination.
5.04 Except as provided above, if Company fails to fulfill any of its obligations under this Agreement, Columbia may terminate this Agreement by providing written notice to Company, as provided below. Such notice shall contain a description of the grounds constituting a breach of the Agreement. Company will have the opportunity to cure that breach within thirty (30) days of receipt of notice. If the breach is not cured within that time, the termination will be effective as of the thirtieth (30th) day after receipt of notice.
5.05 Sections 1, 2.02, 4, 5.05, 6, 7, 9, 10.03, 10.04 and 10.07 will survive the expiration or termination of this Agreement. Any termination of this Agreement shall not adversely affect any rights or obligations that may have accrued to either party prior to the date of termination.
6 - INDEMNITY, INSURANCE, NO REPRESENTATIONS, LIMITATION OF LIABILITY
6.01 Company shall indemnify, defend and hold Columbia, its trustees, officers, employees and affiliates, harmless against all claims, liabilities, and expenses, including legal expenses and reasonable attorneys’ fees, arising out of this Agreement, including the death or injury of any person or persons or out of any damage to property and against any other claim, proceeding, demand, expense and liability of any kind whatsoever resulting from the use of the Service and/or Data.
6.02 THE SERVICE AND DATA ON AN “AS IS” BASIS. COLUMBIA MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, COLUMBIA MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, THAT THE USE OF ANY RIGHTS GRANTED HEREUNDER WILL NOT INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHT OF A THIRD PARTY.
6.03 In no event shall Columbia, or its trustees, officers, faculty members, students, employees and agents, have any liability to Company or any third party arising out of the use, operation or application of the Service, Data or Derivatives by Company, or any third party for any reason, including but not limited to, the unmerchantability, inadequacy or unsuitability of the Service, Data or Derivatives, including fitness for any particular purpose or to produce any particular result, or for any patent or latent defects therein.
6.04. In no event will Columbia, or its trustees, officers, faculty members, students, employees and agents, be liable to the Company, or any third party, for any consequential, incidental, special or indirect damages (including, but not limited to, from any destruction to property or from any loss of use, revenue, profit, time or good will) based on activity arising out of or related to this Agreement, whether pursuant to a claim of breach of contract or any other claim of any type.
6.05 In no event shall Columbia’s liability to Company exceed the payments made to Columbia by Company under this Agreement.
6.06 The parties hereto acknowledge that the limitations and exclusions of liability and disclaimers of warranty set forth in this Agreement form an essential basis of the bargain between the parties.
7 - PROHIBITION AGAINST USE OF COLUMBIA’S NAME
7.01 Except as necessary to comply with the attribution requirement set forth in the Section 2.01, Company will not use the name, trademarks, insignia, or symbols of Columbia, its faculties or departments, or any variation or combination thereof, or the name of any trustee, faculty member, other employee, or student of Columbia for any purpose whatsoever without Columbia’s prior written consent.
8 - NON-ASSIGNABILITY
8.01 This Agreement and all rights and obligations hereunder may not be assigned by either party without the written consent of the other party. Any attempt to assign without compliance with this provision shall be null and void.
9 – NOTICES
9.01 Any notice required or permitted to be given under this Agreement shall be sufficient if in writing and shall be considered given (i) when mailed by certified mail (return receipt requested), postage prepaid, or (ii) on the date of actual delivery by hand or overnight delivery, with receipt acknowledged,
if to Columbia, to: Executive Director
Columbia Technology Ventures
80 Claremont Avenue, #4F
New York, NY 10027-5712
copy to: General Counsel
412 Low Memorial Library
535 West 116th Street, Mail Code 4308
New York, New York 10027
if to the Company, to the e-mail address that the Company provides or to such other address as a party may specify by notice hereunder.
10 – MISCELLANEOUS
10.01 Waiver and Election of Remedies. The failure of any party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver or deprive that party thereafter of the right to insist upon strict adherence to that term or any other term of this Agreement. All waivers must be in writing and signed by an authorized representative of the party against which such waiver is being sought. The pursuit by either party of any remedy to which it is entitled at any time or continuation of the Agreement despite a breach by the other shall not be deemed an election of remedies or waiver of the right to pursue any other remedies to which it may be entitled.
10.02 Binding on Successors. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns to the extent assignment is permitted under this Agreement.
10.03 Independent Contractors. It is the express intention of the parties that the relationship of Columbia and the Company shall be that of independent contractors and shall not be that of agents, partners or joint venturers. Nothing in this Agreement is intended or shall be construed to permit or authorize either party to incur, or represent that it has the power to incur, any obligation or liability on behalf of the other party.
10.04 Entire Agreement; Amendment. This Agreement, together with the Exhibits, sets forth the entire agreement between the parties concerning the subject matter hereof and supersedes all previous agreements, written or oral, concerning such subject matter. This Agreement may be amended only by written agreement duly executed by the parties
10.05 Severability. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid, illegal or unenforceable, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular provisions held to be unenforceable, unless such construction would materially alter the meaning of this Agreement.
10.06. No Third-Party Beneficiaries. Except as expressly set forth herein, the parties hereto agree that there are no third-party beneficiaries of any kind to this Agreement.
10.07. Governing Law. This Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of New York as applicable to agreements made and wholly performed within the State of New York, and without reference to the conflict or choice of laws principles of any jurisdiction. Unless otherwise separately agreed in writing, the parties agree that any and all claims arising under or related to this Agreement shall be heard and determined only in either the United States District Court for the Southern District of New York or in the courts of the State of New York located in the City and County of New York, and the parties irrevocably agree to submit themselves to the exclusive and personal jurisdiction of those courts and irrevocably waive any and all rights any such party may now or hereafter have to object to such jurisdiction or the convenience of the forum.
10.08. Execution in Counterparts; Facsimile or Electronic Transmission. This Agreement may be executed in counterparts, and by facsimile or electronic transmission.
You (“Company”) have read and agreed to the license terms. You further represent that You have taken all actions necessary or appropriate to make the agreement enforceable in Your home country and institution, including, if necessary printing, signing, and retaining a copy of the license.
EXHIBIT A: DATA
Forecast Map Rooms available through the International Research Institute for Climate and Society of the Earth Institute at Columbia University websites:
Climate Forecast Information