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BC CANCER AGENCY SOFTWARE LICENSE AGREEMENT (ACADEMIC USE)

CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. This License

Agreement (the "Agreement") is a legal contract between you, your

employer, educational institution or organization (collectively, "You")

and the British Columbia Cancer Agency ("BCCA") with respect to the

license of the software, including all associated documentation

(collectively, the "Product").

 

BCCA is willing to license the Product to You only if You accept the

terms and conditions of this Agreement. By clicking on the "I ACCEPT"

button, or by copying, downloading, accessing or otherwise using the

Product, You automatically agree to be bound by the terms of this

Agreement. IF YOU DO NOT WISH TO BE BOUND BY THE TERMS OF THIS

AGREEMENT, DO NOT COPY, DOWNLOAD, ACCESS OR OTHERWISE USE THE

PRODUCT.

 

1. AUTHORITY: In the event that You are an educational institution or

organization, Your representative who is clicking the "I ACCEPT"

button, or otherwise copying, downloading, accessing or using the

Product hereby, in their personal capacity, represents and warrants

that they possess the legal authority to enter into this Agreement

on Your behalf and to bind You to the terms of this Agreement.

 

2. LICENSE TO USE: BCCA hereby grants to You a personal, non-exclusive,

non-transferable, limited license to use the Product solely for

internal, non-commercial use for non-profit research or educational

purposes only on the terms and conditions contained in this Agreement.

The Product may be installed at a single site at Your premises only. A

copy of the Product installed on a single common machine or cluster of

machines may be shared for internal use by Qualified Users only. In

order to be a "Qualified User", an individual must be a student,

researcher, professor, instructor or staff member of a non-profit

educational institution or organization who uses the Product solely for

non-profit research or educational purposes.

 

3. RESTRICTIONS: You acknowledge and agree that You shall not, and

shall not authorize any third party to:

(a) make copies of the Product, except as provided in Section 2 and

except for a single backup copy, and any such copy together with the

original must be kept in Your possession or control;

(b) modify, adapt, decompile, disassemble, translate into another

computer language, create derivative works of, or otherwise reverse

engineer the Product, or disclose any trade secrets relating to the

Product, except as permitted in Section 5;

(c) license, sublicense, distribute, sell, lease, transfer, assign,

trade, rent or publish the Product or any part thereof and/or copies

thereof, to any third party;

(d) use the Product to process any data other than Your own;

(e) use the Product or any part thereof for any commercial or

for-profit purpose or any other purpose other than as permitted in

Section 2; or

(f) use, without its express permission, the name of BCCA.

 

4. INTELLECTUAL PROPERTY RIGHTS: Subject to Section 5 below, all

patents, copyrights, trade secrets, service marks, trademarks and

other proprietary rights in or related to the Product and any

improvements, modifications and enhancements thereof are and will

remain the exclusive property of BCCA or its licensors. You agree

that You will not, either during or after the termination of this

Agreement, contest or challenge the title to or the intellectual

property rights of BCCA or its licensors in the Product or any

portion thereof.

 

5. OWNERSHIP OF IMPROVEMENTS: In the event that the Product, in the

form provided to You, includes source code (the "Source Code"),

You are entitled to make improvements, modifications and

enhancements to the Source Code (collectively, "Improvements")

which Improvements are to be used by You for non-profit research

and educational purposes only and You shall be the owner of those

Improvements that You directly make and of all intellectual

property rights to such Improvements, subject to the foregoing

limits on Your use and distribution of such Improvements. You

hereby grant to BCCA a perpetual, non-exclusive, worldwide,

fully-paid, irrevocable license to use such Improvements for any

purposes whatsoever, and to sublicense such Improvements including

the right for third parties to sublicense the same, in perpetuity

to the extent such rights are not limited in duration under

applicable law, without identifying or seeking Your

consent. Notwithstanding the foregoing, You acknowledge that BCCA

and its licensors will retain or own all rights in and to any

pre-existing code or other technology, content and data that may be

incorporated in the Improvements. For greater certainty, this

Section applies solely to the Source Code and shall not give You

any rights with respect to the object code or any other portion or

format of the Product which use, for greater certainty, is limited

as set forth in this Agreement including as set out in Section 3(b)

above. You acknowledge and agree that you will provide copies of

Improvements to BCCA in such format as reasonably requested by BCCA

at any time upon the request of BCCA.

 

6. CONFIDENTIALITY: You acknowledge that the Product is and

incorporates confidential and proprietary information developed,

acquired by or licensed to BCCA. You will take all reasonable

precautions necessary to safeguard the confidentiality of the

Product, and will not disclose any information about the Product to

any other person without BCCA's prior written consent. You will

not allow the removal or defacement of any confidential or

proprietary notice placed on the Product. You acknowledge that any

breach of this Section 6 will cause irreparable harm to BCCA and

its licensors.

 

7. NO WARRANTIES: THIS PRODUCT IS PROVIDED TO YOU BY BCCA IN ORDER TO

ALLOW YOU TO OBTAIN ACCESS TO LEADING ACADEMIC RESEARCH. THE PRODUCT

IS PROVIDED TO YOU ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY

KIND. NO WARRANTY, REPRESENTATION OR CONDITION EITHER EXPRESS OR

IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR

CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, PERFORMANCE,

DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE SHALL

APPLY. BCCA DOES NOT WARRANT THAT THE PRODUCT WILL OPERATE ON A

CONTINUOUS OR TROUBLE FREE BASIS.

 

8. LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY

APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BCCA TO

YOU EXCEED THE AMOUNT YOU HAVE PAID TO ACQUIRE THE PRODUCT ("MAXIMUM

AMOUNT") AND WHERE YOU HAVE NOT PAID ANY AMOUNT FOR THE PRODUCT THEN

THE MAXIMUM AMOUNT SHALL BE DEEMED TO BE CDN$100.00. IN NO EVENT SHALL

BCCA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL

DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS OR

SAVINGS, REGARDLESS OF WHETHER THEY HAVE BEEN ADVISED OF THE

POSSIBILITY OF SUCH DAMAGE. EXCEPT TO THE EXTENT THAT THE LAWS OF A

COMPETENT JURISDICTION REQUIRE LIABILITIES BEYOND AND DESPITE THESE

LIMITATIONS, EXCLUSIONS AND DISCLAIMERS, THESE LIMITATIONS, EXCLUSIONS

AND DISCLAIMERS SHALL APPLY WHETHER AN ACTION, CLAIM OR DEMAND ARISES

FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT,

NEGLIGENCE, STRICT LIABILITY OR ANY OTHER KIND OF CIVIL OR STATUTORY

LIABILITY CONNECTED WITH OR ARISING FROM THIS AGREEMENT. YOU AGREE

THAT THE FOREGOING DISCLAIMER OF WARRANTIES AND LIMITATION OF

LIABILITY ARE FAIR IN LIGHT OF THE NATURE OF THE RIGHTS GRANTED HEREIN

AND THE AMOUNT OF FEES PAID BY YOU IN RESPECT OF THE PRODUCT.

 

9. INDEMNITY: You will indemnify, defend and hold harmless BCCA, its

board of directors, staff and agents from and against any and all

liability, loss, damage, action, claim or expense (including

attorney's fees and costs at trial and appellate levels) in

connection with any claim, suit, action, demand or judgement

(collectively, "Claim") arising out of, connected with, resulting

from, or sustained as a result of Your use of the Product or the

downloading of the Product, including without limitation, any Claim

relating to infringement of BCCA's intellectual property rights or

the intellectual property rights of any third party.

 

10. SUPPORT AND MAINTENANCE: You acknowledge and agree that, unless

and to the extent expressly agreed by BCCA in a separate written

document, the Product is provided to You without any support or

maintenance from BCCA and, for greater certainty, BCCA shall have

no obligation to issue any update or upgrade to any Product.

 

11. TERM: This Agreement is effective until terminated. You may

terminate this Agreement at any time by ceasing use of the Product

and destroying or deleting any copies of the Product. This

Agreement will terminate immediately without notice from BCCA if

You fail to comply with any provision of this Agreement. BCCA may

terminate this Agreement at any time upon notice to you where BCCA

determines, in its sole discretion, that any continued use of the

Product could infringe the rights of any third parties. Upon

termination of this Agreement, and in any event upon BCCA

delivering You notice of termination, You shall immediately purge

all Products from Your computer system(s), return to BCCA all

copies of the Product that are in Your possession or control, and

cease any further development of any Improvements. On any

termination of this Agreement Sections 1, 4, 6, 7, 8, 9, 13 and 14

shall survive such termination.

 

12. GOVERNMENT END USERS: Where any of the Product is used, duplicated

or disclosed by or to the United States government or a government

contractor or sub contractor, it is provided with RESTRICTED

RIGHTS as defined in Title 48 CFR 52.227-19 and is subject to the

following: Title 48 CFR 2.101, 52.227-19, 227.7201 through

227.7202-4, FAR 52.227-14, and FAR 52.227-19(c)(1-2) and (6/87),

and where applicable, the customary software license, as described

in Title 48 CFR 227-7202 with respect to commercial software and

commercial software documentation including DFAR 252.227-7013,

DFAR 252,227-7014, DFAR 252.227-7015 and DFAR 252.7018, all as

applicable.

 

13. USE OF THE DOWNLOAD SERVICE: You acknowledge and agree that you

will be responsible for all costs, charges and taxes (where

applicable) arising out of Your use of the Product and the

downloading of the Product. You acknowledge that You are

responsible for supplying any hardware or software necessary to

use the Product pursuant to this Agreement.

 

14. GENERAL PROVISIONS:

(a) This Agreement will be governed by the laws of the Province of

British Columbia, and the laws of Canada applicable therein, excluding

any rules of private international law that lead to the application of

the laws of any other jurisdiction. The United Nations Convention on

Contracts for the International Sale of Goods (1980) does not apply to

this Agreement. The courts of the Province of British Columbia shall

have non-exclusive jurisdiction to hear any matter arising in

connection with this Agreement.

(b) USE OF THE PRODUCT IS PROHIBITED IN ANY JURISDICTION WHICH DOES

NOT GIVE EFFECT TO THE TERMS OF THIS AGREEMENT.

(c) You agree that no joint venture, partnership, employment,

consulting or agency relationship exists between You and BCCA as a

result of this Agreement or Your use of the Product.

(d) You hereby consent to Your contact information and any other

personally identifiable information that You provide to us being

disclosed to and maintained and used by us and our business partners

for the purposes of (i) managing and developing our respective

businesses and operations; (ii) marketing products and services to You

and your staff; and (iii) developing new and enhancing existing

products. You further agree that we may provide this information to

other persons as required to satisfy any legal requirements and to any

person that acquires some or all of the assets of BCCA. Where any of

the personally identifiable information that You provide to us is in

respect of individuals other than Yourself (such as Your staff) then

You represent and warrant to use that You have obtained all necessary

consents and authorizations from such individuals in order to comply

with this provision. Please see the BCCA website for further

information regarding personally identifiable information.

(e) This Agreement is the entire Agreement between You and BCCA

relating to this subject matter. You will not contest the validity of

this Agreement merely because it is in electronic form. No

modification of this Agreement will be binding, unless in writing and

accepted by an authorized representative of each party.

(f) The provisions of this Agreement are severable in that if any

provision in the Agreement is determined to be invalid or

unenforceable under any controlling body of law, that will not affect

the validity or enforceability of the remaining provisions of the

Agreement.

(g) You agree to print out or download a copy of this Agreement and

retain it for Your records.

(h) You consent to the use of the English language in this Agreement.

(i) You may not assign this Agreement or any of Your rights or

obligations hereunder without BCCA's prior written consent. BCCA, at

its sole discretion may assign this Agreement without notice to You.