CONTENT LICENSE AGREEMENT
MICHIGAN FILE 2018-311 TECHNOLOGY
IMPORTANT – READ CAREFULLY: This Agreement is a legal agreement between “LICENSEE” (defined below) and The Regents of The University of Michigan, a constitutional corporation of the state of Michigan (“MICHIGAN”).
ARTICLE 1 - DEFINITIONS
"DERIVATIVE WORK" all works
developed by LICENSEE which would be characterized as derivative works of the INSTRUMENT
under the United States Copyright Act of 1976, or subsequent revisions thereof,
specifically including, but not limited to, translations, abridgments,
condensations, recastings, transformations, or adaptations of the INSTRUMENT,
or works consisting of editorial revisions, annotations, elaborations, or other
modifications of the INSTRUMENT. The
term "DERIVATIVE WORK" shall not include those derivative works which
are developed by MICHIGAN.
"END USER" means any person or other entity to whom LICENSEE distributes the PROGRAM or DERIVATIVE WORKS are distributed and who is not granted any rights to sublicense or distribute the PROGRAM or DERIVATIVE WORKS to others.
"FACILITIES" means a unique physical location owned and managed by the LICENSEE which will utilize the PROGRAM or DERIVATIVE
WORKS for the purpose of training employees, associates or other staff.
“LICENSEE” shall mean the
person downloading the PROGRAM if the use hereunder is solely for personal use
by that person on the personal equipment of that person. If the PROGRAM is being
installed on equipment for use by a juristic or legal entity, such as a
corporation, limited liability company or partnership, then by proceeding with
the installation, (a) the person installing the PROGRAM certifies that he or
she has legal authority to bind that legal entity to this Agreement and (b)
that legal entity shall be considered to be the LICENSEE.
"PROGRAM(S)," means the following video, manuals, methodologies, toolkits and
related user documentation, as they exist on the Effective Date: a proprietary application and related
documentation referred to as “Cooper Urinary Tract Infection Program (CUTIP)”, and further described in MICHIGAN
Office of Technology File 2018-318.
"SUBLICENSE(S)" means any
agreement between LICENSEE and a SUBLICENSEE under which any of LICENSEE's
rights under this Agreement are licensed.
Licenses to END USERS, though in fact sublicenses to the license granted
by this Agreement, shall be excluded from the defined, capitalized term,
"SUBLICENSES," and shall be separately addressed herein as "END
ARTICLE 2 - GRANT OF LICENSE
2.1 Subject to the terms and conditions of this Agreement, MICHIGAN hereby grants to LICENSEE a academic research, non-commercial purposes, non-exclusive license to create DERIVATIVE WORKS, and to use and reproduce, market, distribute, publicly display, publicly perform, and otherwise commercially exploit the PROGRAM and DERIVATIVE WORKS, including, without limitation, by way of END USER licenses. This agreement is subject to use at no more than 250 FACILITIES under the common control of the LICENSEE. The rights granted herein do not include the right to grant SUBLICENSES.
2.2 Without limiting any other rights it may have, MICHIGAN specifically reserves the right for MICHIGAN to create derivative works of the PROGRAM and to use, reproduce, publicly display and publicly perform the PROGRAM and derivative works thereof, for research, internal (including clinical) and/or educational purposes, and the right to grant the same limited rights to other non-profit institutions.
2.3 This Agreement shall extend until expiration of the copyright rights in the PROGRAM, unless sooner terminated as provided in another specific article of this Agreement.
2.4 The licenses granted in this Agreement are
subject to any restrictions or any rights required to be granted under prior
research or sponsorship agreements, or retained by the U.S. government, for example
in accordance with Chapter 18 or Title 35 of U.S.C. 200-212 and the regulations
thereunder (37 CFR Part 401), when applicable.
LICENSEE agrees to comply in all respects, and shall provide MICHIGAN
with all reasonably requested information and cooperation for MICHIGAN to
comply with applicable provisions of the same and any requirements of any
contracts between MICHIGAN and any agency of the U.S. government that provided
funding for the subject matter hereof.
2.5 Under no circumstances does the provision for the development of DERIVATIVE WORKS allow the use of the University of Michigan name, logos, identity, marks or other assets in the DERIVATIVE WORK. Any use of MICHIGAN related assets and identifying marks is strictly prohibited.
ARTICLE 3 - CONSIDERATION
This is a no-cost license.
ARTICLE 4 - END-USER LICENSES
4.1 END USER licenses of the PROGRAM and DERIVATIVE WORKS entered into by LICENSEE shall: (a) be consistent with the terms and conditions of this Agreement; and (b) contain the disclaimer of warranty and limitation on MICHIGAN's liability, as provided by Article 6 below (this may be done with more general reference to disclaimers and limitations related to third parties that would include MICHIGAN).
ARTICLE 5 - ENFORCEMENT
5.1 LICENSEE does not have the right to police the PROGRAM against infringement by other parties.
ARTICLE 6 - NO WARRANTIES; LIMITATION ON MICHIGAN'S LIABILITY
MICHIGAN, INCLUDING ITS
REGENTS, FELLOWS, OFFICERS, EMPLOYEES, AND AGENTS, MAKES NO REPRESENTATIONS OR
WARRANTIES THAT THE REPRODUCTION, MODIFICATION, USE, OFFER FOR SALE, SALE,
PERFORMANCE, DISPLAY, LICENSE OR OTHER DISTRIBUTION OF THE PROGRAM OR DERIVATIVE WORKS
WILL NOT INFRINGE UPON ANY PROPRIETARY RIGHTS OF ANY THIRD PARTY.
THE PROGRAM IS BEING PROVIDED
TO LICENSEE "AS IS." MICHIGAN,
INCLUDING ITS REGENTS, FELLOWS, OFFICERS, EMPLOYEES AND AGENTS, MAKES NO
REPRESENTATIONS, EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, AND ASSUMES NO RESPONSIBILITIES WHATEVER WITH
RESPECT TO DESIGN, DEVELOPMENT, REPRODUCTION, USE, DISTRIBUTION, DISPLAY,
PERFORMANCE, IMPORTATION, LICENSE, SALE OR OTHER DISPOSITION BY LICENSEE, END USERS, OR ANY OTHER PERSON OR ENTITY, OF THE PROGRAM OR ANY DERIVATIVE WORKS. LICENSEE ASSUMES THE ENTIRE RISK AS TO
PERFORMANCE OF THE PROGRAM AND ALL DERIVATIVE WORKS.
In no event shall MICHIGAN, including its Regents, fellows, officers,
employees and agents, be responsible or liable for any direct, indirect,
special, incidental, or consequential damages or lost profits or other economic
loss or damage with respect to this Agreement, the PROGRAM or any DERIVATIVE
WORKS, to LICENSEE, END USERS, or any other individual or entity regardless of
legal theory. The above limitations on
liability apply even though MICHIGAN, its Regents, fellows, officers, employees
or agents may have been advised of the possibility of such damage.
LICENSEE shall not make any statements, representations or warranties
whatsoever to any person or entity, or accept any liabilities or
responsibilities whatsoever from any person or entity that are inconsistent
with any disclaimer or limitation included in this Article 6.
LICENSEE AGREES THAT IN NO
EVENT SHALL MICHIGAN, INCLUDING ITS
FELLOWS, OFFICERS, EMPLOYEES, AND AGENTS, BE LIABLE TO LICENSEE, ITS AFFILIATES, OR END
USERS, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, STRICT
LIABILITY IN TORT, INFRINGEMENT, WARRANTY, OR ANY OTHER LEGAL OR EQUITABLE
THEORY, FOR RELIEF ARISING OUT OF OR RELATING TO THE PROGRAM OR DERIVATIVE WORKS,
OR THIS AGREEMENT, ITS SUBJECT MATTER, OR ANYONE'S CONDUCT RELATING THERETO,
FOR ANY AMOUNT IN EXCESS OF THE ROYALTIES ACTUALLY PAID TO MICHIGAN UNDER THIS AGREEMENT.
This provision shall not eliminate or diminish any disclaimers of
warranty provided elsewhere in this Agreement.
No ownership rights of MICHIGAN in the PROGRAM or DERIVATIVE WORKS are
conferred upon LICENSEE by this Agreement.
LICENSEE agrees that MICHIGAN has no obligation to provide to LICENSEE
any maintenance, support, or update services. Should MICHIGAN provide any
revised versions of the PROGRAM to LICENSEE, LICENSEE agrees that this license
agreement shall apply to such revised versions.
The PROGRAM does not provide medical advice and is not intended as a
sole means for patient diagnosis. It is
not a substitute for professional medical advice, diagnosis or treatment. The PROGRAM is intended for informational
purposes only. MICHIGAN does not warrant
or guarantee the accuracy or completeness of the information in the PROGRAM and
specifically disclaims any liability therefor.
ARTICLE 7 - INDEMNITY; INSURANCE
LICENSEE shall defend, indemnify and hold harmless MICHIGAN, including
its Regents, fellows, officers, employees, and agents, from and against any
claims, damages or expenses (including attorney's fees and other litigation
expenses) arising out of any asserted patent, trade secret, copyright or
trademark infringement action brought as a result of the use, reproduction,
modification, performance, display, licensing or other distribution of the PROGRAM
or DERIVATIVE WORKS by LICENSEE or END USERS.
LICENSEE shall defend, indemnify and hold
harmless MICHIGAN, its Regents, fellows, officers, employees and agents, for
and against any and all claims, demands, damages, losses, and expenses of any
nature (including attorneys' fees and other litigation expenses), resulting
from, but not limited to, death, personal injury, illness, property damage,
economic loss or products liability, including errors and omissions, arising
from or in connection with, any of the following:
Any reproduction, use,
display, performance, license, sale, or other disposition by LICENSEE and END
USERS of the PROGRAM or any DERIVATIVE WORKS;
(b) The direct or indirect use by any person of the PROGRAM or DERIVATIVE WORKS reproduced, used, displayed, performed, licensed, sold or otherwise distributed by LICENSEE or END USERS.
7.2 MICHIGAN is entitled to participate at its option and expense through counsel of its own selection, and may join in any legal actions related to any such claims, demands, damages, losses and expenses under Paragraph 7.1 above.
7.3 Prior to any distribution or commercial use of the PROGRAM or any DERIVATIVE WORKS by LICENSEE. LICENSEE shall purchase and maintain in effect a policy of product liability, completed operations, and errors and omissions insurance. Each such insurance policy must provide reasonable coverage for all claims with respect to the use, display or performance of the PROGRAM and any DERIVATIVE WORKS reproduced, used, displayed, performed, sold, licensed or otherwise distributed by LICENSEE and must specify MICHIGAN, including its Regents, fellows, officers and employees, as an additional insured. LICENSEE shall furnish proof of such insurance to MICHIGAN, upon request.
ARTICLE 8 - TERM AND TERMINATION
Agreement will become effective on its Effective Date and, unless terminated
under another specific provision of this Agreement, will remain in effect until
and terminate with respect to the PROGRAM and DERIVATIVE WORKS upon the
termination of the copyright interest held by MICHIGAN in the PROGRAM.
8.2 If LICENSEE fails to make any payment due to MICHIGAN, upon ten (10) days’ written notice by MICHIGAN, this Agreement shall automatically terminate, unless MICHIGAN specifically extends such date in writing. Such termination shall not foreclose MICHIGAN from collection of any amounts remaining unpaid or seeking other legal relief.
8.3 LICENSEE has the right to terminate this Agreement at any time on sixty (60) days' written notice to MICHIGAN if LICENSEE:
(a) pays all amounts due MICHIGAN through
the effective date of the termination;
its use and sale of the PROGRAM and DERIVATIVE WORKS;
any material breach or default of this Agreement by LICENSEE other than those
occurrences listed in Paragraphs 8.2 and 8.3 (the terms of which shall
take precedence over the handling of any other material breach or default under
this Paragraph 8.3), MICHIGAN has the right to terminate this Agreement
effective on sixty (60) days' written notice to LICENSEE. Such termination shall become automatically
effective upon expiration of the sixty (60) day period unless LICENSEE cures
the material breach or default before the period expires.
ARTICLE 9 - NOTICES
9.1 Any notice, request, or report required or
permitted to be given
or made under this Agreement by either party is effective when mailed if sent
by recognized overnight carrier, certified or registered mail, or electronic
mail followed by confirmation by U.S. mail, to the address set forth below or
such other address as
such party specifies by written notice given in conformity herewith. Any notice, request, or report not so given
is not effective until actually received by the other party.
To MICHIGAN: Office
of Technology Transfer
University of Michigan
1600 Huron Parkway, 2nd Floor
Ann Arbor, MI 48109-2590
File No. 2018-318
To LICENSEE: As provided when digitally signed.
ARTICLE 10 - MISCELLANEOUS PROVISIONS
Agreement shall be construed, governed, interpreted and applied according to
United States and State of Michigan law.
10.2 The parties
hereby consent to the jurisdiction of the courts in the State of Michigan over
any dispute concerning this Agreement or the relationship between the
parties. Should LICENSEE bring any
claim, demand or other action against MICHIGAN, its Regents, fellows, officers,
employees or agents, arising out of this Agreement or the relationship between
the parties, LICENSEE agrees to bring said action only in the Michigan Court of
and LICENSEE agree that this Agreement sets forth their entire understanding
concerning the subject matter of this Agreement, and no modification of the
Agreement will be effective unless both MICHIGAN and LICENSEE agree to it in
10.4 If a
court of competent jurisdiction finds any term of this Agreement invalid,
illegal or unenforceable, that term will be curtailed, limited or deleted, but
only to the extent necessary to remove the invalidity, illegality or
unenforceability, and without in any way affecting or impairing the remaining
copies of the PROGRAM or DERIVATIVE WORKS (both software and documentation)
distributed by LICENSEE shall contain copyright and/or patent notices, as
applicable, in appropriate locations and forms.
Such notices shall be consistent with any instructions which might be
provided by MICHIGAN; and shall include all copyright and other notices in the
form supplied by MICHIGAN.
waiver by either party of any breach of this Agreement, no matter how
continuing or how often repeated, is a waiver of any subsequent breach
nor is any delay or omission on the part of either party to exercise or
on any right, power, or privilege hereunder a waiver of such right,
power or privilege. In no event shall any waiver be deemed valid
unless it is in writing and signed by an authorized representative of
10.7 LICENSEE agrees to refrain from using the
name of MICHIGAN in publicity or advertising without the prior written approval
of MICHIGAN. Reports in scientific
literature and presentations of joint research and development work are not
publicity. Notwithstanding the above,
without written approval from MICHIGAN, LICENSEE may state publicly (if
factually correct) that their relevant products or services are derived from
technology licensed from the University of Michigan. Any such public statements as to the origin
of such products or services shall not state or imply that MICHIGAN endorses
those products or services.
agrees to comply with all applicable laws and regulations, including but not
limited to those relating to this Agreement and to the testing, production,
importation, transportation, packaging, labeling, use, sale, sublicensing or
other distribution of the PROGRAM and DERIVATIVE WORKS, or otherwise applicable
to LICENSEE's activities hereunder.
LICENSEE understands and acknowledges that the transfer of certain
commodities and technical data, including the transfer of products made with
the use of technical data, is subject to United States laws and regulations
controlling the export of such commodities and technical data, including all
Export Administration Regulations of the United States Department of Commerce. LICENSEE understands that computer software
is included in the definition of technical data. These laws and regulations prohibit or
require a license for the export of certain types of products and technical
data to certain specified countries, individuals and/or organizations. LICENSEE agrees to comply with all United
States laws and regulations controlling the export of commodities and technical
data, to be solely responsible for any violation of such laws and regulations
by LICENSEE, and to defend, indemnify and hold harmless MICHIGAN and its
Regents, fellows, officers, employees and agents if any legal action of any
nature results from the violation.
LICENSEE agrees to comply with the Health
Insurance Portability and Accountability Act, and to defend and hold harmless
MICHIGAN and its Regents, fellows, officers, employees and agents if any legal
action of any nature results from any violation thereof.
10.9 The relationship between the parties is that of
independent contractor and contractee.
Neither party is an agent of the other in connection with the exercise of any rights
hereunder, and neither has any right or authority to assume or create any
obligation or responsibility on behalf of the other.