Developer License Terms and Conditions

These terms and conditions are incorporated into the Solution Partner Agreement between VivaLNK, Inc. (“Vivalink”) and Company.  These terms combined with one or more separately-executed order forms (“Order Form(s)”) constitute a binding agreement between the parties (the “Agreement”). Company and Vivalink agree to these terms and conditions.

 The Developer License Agreement (“Agreement”) allows a single developer to use the Vivalink software development kit or API.

Definitions:

"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition only, the term “control” means the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of 50% or more voting securities, by contract or otherwise.

"Confidential Information" means, except as set forth in Section 2.2,  any Information that is treated as confidential by a Party, whether in oral, written, electronic, or other form or media, whether or not such Information is marked, designated, or otherwise identified as "confidential," and includes any Information that due to the nature of its subject matter or circumstances surrounding its disclosure, would reasonably be understood to be non-public, confidential, or proprietary, including, without limitation: (a) the existence, terms and conditions of this Agreement; (b) all Information concerning unpatented inventions, ideas, methods, discoveries, know-how, Trade Secrets, unpublished patent applications, invention disclosures, invention summaries, and other confidential intellectual property; (c) all designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing; and (d) all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials that contain, are based on, or otherwise reflect or are derived from, any of the foregoing in whole or in part.  

"Deliverables" means the Software, Documentation, and other work product that Vivalink is required to deliver to Licensee under this Agreement 

"Documentation" means any and all manuals, instructions, specifications, and other documents and materials that Vivalink provides or makes available to Licensee in any medium and which describe the functionality, components, features, or requirements of the Software, including the installation, configuration, integration, operation, use, support, or maintenance thereof.

Information” means any and all ideas, concepts, data, know-how, discoveries, improvements, methods, techniques, technologies, systems, specifications, analyses, products, practices, processes, procedures, protocols, research, tests, trials, assays, controls, prototypes, formulas, descriptions, formulations, submissions, communications, skills, experience, knowledge, plans, objectives, algorithms, reports, results, conclusions, and other information and materials, irrespective of whether or not copyrightable or patentable and in any form or medium (tangible, intangible, oral, written, electronic, observational, or other) in which such Information may be communicated or subsist.  Without limiting the foregoing sentence, Information includes any technological, scientific, business, legal, patent, organizational, commercial, operational, or financial materials or information. 

"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

"Software" means the software Vivalink is required to or otherwise does create or provide to Licensee under this Agreement.

"Specifications" means the specifications for the Software.

"Third Party" means any Person other than Vivalink or Licensee or their respective Affiliates.

"Third-Party Materials" means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Software that are not proprietary to Vivalink.

"Trade Secrets" means information, without regard to form, including, but not limited to, technical or non-technical data, a formula pattern, compilation, program, device, method, technique, drawing, process, financial data, or lists of actual or potential customers or suppliers which (i) derives economic value, actual or potential, from not being generally known to other persons who can derive economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.

"Work Product" means the Software, Documentation, Specifications, Deliverables, and other documents, work product, and materials related thereto, that Vivalink is required to or otherwise does create or provide to Licensee in connection with this Agreement.

1. Intellectual Property Rights:

1.1.  Work Product. All right, title and interest in and to (a) the Work Product and (b) all works, inventions, and other subject matter incorporating, based on, or derived from any Work Product, including all customizations, enhancements, improvements, and other modifications thereof (collectively, "Derivatives"), in each case (subclause (a) and subclause (b)) by whomsoever made and including all Intellectual Property Rights therein, are and will remain, as appropriate, with Vivalink and the respective rights holders in the Third-Party Materials. Licensee has no right or license with respect to any Work Product or Derivatives except as expressly licensed herein or the applicable third-party software license, in each case subject to the license restrictions herein. All other rights in and to the Work Product and Derivatives are expressly reserved by Vivalink and the respective Third-Party Licensors. 

2. Confidentiality:

2.1. Obligations of Confidentiality. The Receiving Party shall (a) maintain any Confidential Information in confidence; (b) take all precautions reasonably necessary to prevent Confidential Information from being disclosed to any unauthorized Third Party, and (c) use Confidential Information exclusively for performing its obligations under this Agreement. The Receiving Party may disclose Confidential Information to its Affiliates, its and their respective Representatives and its permitted subcontractors, each with a need to know such Confidential Information in order for the Receiving Party to perform its obligations under this Agreement; provided that (i) the Receiving Party advises its Affiliates, its and their respective representatives and its permitted subcontractors of the confidential nature thereof and (ii) such Affiliates, its and their respective representatives and such permitted subcontractors are bound by confidentiality obligations at least as stringent as those set forth herein. The Receiving Party shall be liable to the Disclosing Party for any failure by any of its Affiliates, its and their respective representatives or its permitted subcontractors to comply with this Section 2.1 with respect to the Disclosing Party’s Confidential Information.

2.2. Exclusions. Confidential Information shall not include information that the Receiving Party demonstrates: (a) is in the public domain as of the Effective Date, or subsequently enters the public domain through no fault or act of the Receiving Party; (b) is rightfully known to the Receiving Party prior to disclosure from the Disclosing Party; (c) that the Receiving Party received from any Third Party not under any obligation to the Disclosing Party to keep such information confidential; or (d) was independently developed by the Receiving Party without reliance upon or use of the Confidential Information of the Disclosing Party.  As to exception Sections 2.2 (b) or (d), the Receiving Party shall make known to the Disclosing Party within five (5) business days of receipt of information from the Disclosing Party that such information was already known to the Receiving Party.  

2.3. Compelled and Mandatory Disclosures.

(a) In the event that the Receiving Party receives a subpoena or other government process that purports to require the production of any Confidential Information of the Disclosing Party for use in an action or proceeding or for any purpose other than for performing its obligations under this Agreement, the Receiving Party shall (a) promptly inform the Disclosing Party of the receipt of such subpoena or other government process and (c) not oppose any effort by the Disclosing Party to quash any such subpoena or other government process. In the event that (x) the Disclosing Party fails to intervene to quash such subpoena or other government process after being given notice and a reasonable opportunity to do so or (y) such intervention fails or is denied by a court of competent jurisdiction, such Confidential Information may be produced but limited to what is strictly necessary, notwithstanding anything in this Agreement to the contrary.

(b) In the event that the Receiving Party believes it is required by applicable Laws or stock exchange rules to disclose any part of the Disclosing Party’s Confidential Information, the Receiving Party shall: (a) promptly advise the Disclosing Party of each such requirement in writing and identify the documents so required thereby, so that the Disclosing Party may seek an appropriate protective order or other remedy or waive compliance by the Receiving Party with the provisions of this Agreement; and (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow the scope of such requirement. If, in the absence of such a protective order or such a waiver by the Disclosing Party of the provisions of this Agreement, the Receiving Party is nonetheless required by mandatory applicable laws to disclose any part of the Disclosing Party’s Confidential Information, the Receiving Party may disclose such Confidential Information without liability under this Agreement, except that the Receiving Party shall furnish only that portion of the Confidential Information which is legally required.

(c) In the event that any Confidential Information is produced or disclosed pursuant to this Section 2.3, such Confidential Information shall not lose its confidential status through such use, and the Receiving Party shall take all reasonable and necessary steps to protect the confidentiality of such Confidential Information during such use.

3. License: 

3.1. In accordance with the terms and conditions of this Agreement, Vivalink hereby grants to the user (the "Licensee") a non-exclusive, non-sublicensable and non-transferable license to a) to install, operate, and use the Software in object code only in the United States during the Term of this Agreement, solely for Licensee’s development and evaluation use and in accordance with the Documentation; and (b) to use the Documentation and other Work Product solely in connection therewith (the "License"). 

3.2. This Agreement constitutes a license for development and evaluation use only, specifically for evaluation of license opportunities for the Software and the Work Product to be included in services to be provided to Licensee’s clients, not for production or distribution of any commercial products or derivative products using the API. Any use of this Agreement or the API for competitive analysis is strictly prohibited. Title, copyright, intellectual property rights of the API remain exclusively with Vivalink.

3.3.  Licensee shall not, and shall not permit any other Person to, access or use any Work Product except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Licensee shall not, except as this Agreement expressly permits:

(a) copy, modify, or create derivative works or improvements of the Work Product;

(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Work Product to any other Person, including through or in connection with any software as a service, cloud, or other technology or service;

(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Work Product, including any copy thereof;

(e) use any Work Product in a manner or for any purpose that infringes, misappropriates, or otherwise violates any law or Intellectual Property Right; 

(f) use the Work Product for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to Vivalink’s commercial disadvantage; or

(h) otherwise use the Work Product beyond the scope of the license granted under this Agreement.

3.4. Failure to comply with any of the terms under the License section will be considered a material breach of this Agreement. 

3.5. Modifications of Software. Vivalink may make modifications to the Software or individual features and functionality of the Software from time to time and will use commercially reasonable efforts to notify Licensee of any material modifications.  Licensee agrees that Vivalink shall not be liable to Licensee or any third party for any such modification of the Software. In the event of a modification that has a material, adverse impact on Licensee’s ability to use the Software, Licensee shall be entitled, as its sole and exclusive remedy, to terminate the Agreement, and receive a prorated refund of the Licensee Fee for the remaining portion of the Term. 

3.6. Discontinuation / Stoppage of Software.  Other than for reasons under Sections 11.1(a) or 11.1(b) of the Agreement, if Vivalink discontinues or stops providing the VivaLINK API to Licensee, then Licensee shall receive a pro-rata refund of the Licensee Fee paid under the Agreement for its use of the Software.  

4. Assignment:

4.1. The rights and obligations of this Agreement are rights granted to the Licensee only. The Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Vivalink’s prior written consent, except that Licensee may assign to an Affiliate.  For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Vivalink’s prior written consent is required.  Any purported assignment, delegation, or transfer in violation of this paragraph is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

5. License Fee:

5.1. The license fees will be separately agreed by the parties of this Agreement in writing (“License Fee”). 

6. Representations and Warranties:

6.1. General Warranties. Each Party represents and warrants to the other Party that:

(a) the execution, delivery and performance of this Agreement by such Party have been duly authorized by all necessary action on the part of such Party;

(b) this Agreement, when executed and delivered by such Party in accordance with the provisions hereof, will be a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and

(c) such Party’s execution, delivery and performance of this Agreement shall not constitute a violation, breach or default under any contract, instrument, obligation or agreement to which it is a Party or by which it is bound, and will not conflict with or violate any applicable laws.

6.2. Compliance With Laws. Each Party represents, warrants and covenants that it shall comply with all applicable Laws in connection with its performance of its obligations under this Agreement.  Warranty of Functionality.  Vivalink warrants that (i) the Software will perform substantially in accordance with the functionality described in the applicable Documentation, and (ii) such functionality will not be materially decreased during the Term.  Licensee’s sole and exclusive remedy for Vivalink’s breach of this warranty shall be that Vivalink shall be required to use commercially reasonable efforts to modify the Software to achieve in all material respects the functionality described in the applicable documentation and if Vivalink is unable to restore such functionality, Licensee shall be entitled to terminate the Agreement and receive a pro-rata refund of the Licensee Fee paid under the Agreement for its use of the Software.  Vivalink shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to buzz@vivalink.com.  The warranties set forth in this Section 6.3 are made to and for the benefit of Licensee only.  Such warranties shall only apply if the applicable Software has been utilized in accordance with the applicable Documentation, this Agreement and applicable law.

7. Disclaimer of Warranties:

7.1. OTHER THAN AS SET FORTH IN SECTIONS 6.1, 6.2 and 6.3, ALL SOFTWARE, SERVICES, AND WORK PRODUCT ARE PROVIDED "AS IS" AND Vivalink HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND Vivalink SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, Vivalink MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE OR WORK PRODUCT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS..

8. Limitations of Liability:

8.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS AND EXCEPT FOR (a) THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT AND (b) BREACHES OF THE CONFIDENTIALITY OBLIGATIONS OR INFRINGEMENT OR MISUSE OF THE INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY OWE ANY DAMAGES OR HAVE ANY LIABILITY TO THE OTHER PARTY, ANY OF THE OTHER PARTY’S AFFILIATES OR ANY THIRD PARTY ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LIABILITIES OF ANY KIND OR FOR LOSS OF REVENUE OR PROFITS OR LOSS OF BUSINESS.

9. User Support: 

9.1. Email support is included during the Term of this Agreement.

10. Term: 

 10.1. The term of this Agreement commences as of the date of acceptance (“Effective Date”) and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect for twelve (12) months, unless otherwise agreed by both parties in writing (“Term”).  The Term may be extended upon mutual written agreement of the parties and subject to payment of an annual license fee.

11. Termination: 

11.1. In addition to any other express termination right set forth elsewhere in this Agreement:

(a) Vivalink may terminate this Agreement, effective on written notice to Licensee, if Licensee: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Vivalink’s delivery of written notice thereof; or (ii) breaches any of its obligations under the License section.

(b) Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.

12. Effect of Expiration or Termination: 

12.1. Upon any expiration or termination of this Agreement:

(a) All licenses granted by either party to the other will also expire or terminate, except to the extent that any license has an express term that continues for a longer period or is perpetual.

(b) Licensee shall promptly (i) return to Vivalink all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Vivalink’s Confidential Information; (ii) permanently erase Vivalink’s Confidential Information from its computer systems; and (iii) promptly destroy the API or return the API to Vivalink. 

(c) If Vivalink terminates this Agreement pursuant to Paragraph 11(a) or 11(b), all licenses granted to Licensee in the Work Product will also terminate and Licensee shall immediately cease all use of the Work Product.

13. Force Majeure: 

13.1. Vivalink will be free of liability to the Licensee where Vivalink is prevented from executing its obligations under this Agreement in whole or in part due to Force Majeure, such as earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event where Vivalink has taken any and all appropriate action to mitigate such an event. 

14. Miscellaneous: 

14.1. This Agreement can only be modified in writing signed by both Vivalink and the Licensee. 

14.2. This Agreement does not create or imply any relationship in agency or partnership between Vivalink and the Licensee. 

14.3. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa. 

14.4. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result. 

14.5. This Agreement, together with the Vivalink API License Agreement is attached herewith as Exhibit A,  contains the entire agreement between the parties. All understandings have been included in this Agreement. Representations which may have been made by any party to this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties. This Agreement replaces the Vivalink Vitals Data Service LICENSE AGREEMENT executed by Medidata on July 10, 2021 as part of the Vivalink Biometrics Data Platform  Pilot Proposal for Medidata.

14.6. This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon Vivalink's and Licensee’s successors and assigns.

14.7. Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee will not directly or indirectly export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction, or Person to which export, re-export, or release is prohibited by applicable law. Licensee will comply with all applicable laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.

14.8. Licensee Marks. Licensee hereby grants to Vivalink a non-exclusive license to use any logos, trade names, trademarks, trade dress, service marks, images, graphics or other identifying words, symbols, slogans and indicia used, held for use, or otherwise adopted for commercial purposes by Licensee (“Licensee Marks”) solely to publicly recognize the relationship created by this Agreement between Licensee and Vivalink.

14.9. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

14.10. This Agreement will be governed by and construed and interpreted in accordance with California law (without giving effect to its conflicts of laws principles the result of which would permit the application of a law other than United States federal law or California law to this Agreement).  You hereby irrevocably agree that all claims, proceedings and disputes arising in connection with this Agreement shall be brought in a federal or state court located in California, and you hereby irrevocably waive any objection to laying of venue in such federal or state courts located in California.

14.11. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 2 or, in the case of Licensee, Section 3.3 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

14.12. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.