CLICK-WRAP LICENSE AGREEMENT
Last updated: 6/1/2023
PLEASE READ THIS CLICK-WRAP LICENSE AGREEMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. BY SELECTING THE BOX LABELED “I agree to the Terms and Conditions” AND CLICKING ON THE “Ok” BUTTON, YOU ARE AGREEING TO BE LEGALLY BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT WITHIN THE SCOPE OF YOUR EMPLOYMENT, THEN THE TERM “LICENSEE” INCLUDES YOUR EMPLOYER AND YOU WARRANT AND REPRESENT TO MVHS THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH EMPLOYER’S BEHALF. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO NOT SELECT THE BOX LABELED “I agree to the Terms and Conditions” AND CONTACT YOUR GLYCOCHECK SYSTEM PROVIDER.
This Click-Wrap License Agreement (this “Agreement”) is made between:
you, both as an individual and as an authorized user of and agent for your affiliated company, if any (each a “Licensee”), and
Microvascular Health Solutions LLC, a company organized and subsisting under the laws of Delaware, United States (“MVHS”), with principal offices located at 175 West Canyon Crest, Suite 306, Alpine, Utah, 84004, U.S.A.,
MVHS and Licensee each a “Party” and collectively the “Parties,”
and is effective of as the first time Licensee selects the box labeled “I agree to the Terms and Conditions” and clicks “Ok” (the “Effective Date”) and is reaffirmed by Licensee each subsequent time Licensee selects the box labeled “I agree to the Terms and Conditions” and clicks “Ok.”
By providing the GlycoCheck System to Licensee, through Distributor, if any, MVHS agrees to be legally bound by the terms and conditions of this Agreement.
WHEREAS, MVHS is the developer and/or distributor of a proprietary hardware and software system used to measure the Glycocalyx layer and microvascular function (the “GlycoCheck System”);
WHEREAS, Licensee wishes to obtain from MVHS, through Distributor, if any, and MVHS wishes to grant and provide to Licensee, through Distributor, if any, a license to use the GlycoCheck System;
NOW, THEREFORE, in consideration of these promises and of the mutual covenants and conditions in this Agreement and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
LICENSE TO GLYCOCHECK SYSTEM
1.1 Subject to the terms and conditions of this Agreement, including the restrictions and license exclusions set forth elsewhere in this Agreement, MVHS hereby grants to Licensee, and Licensee hereby accepts a non-exclusive, non-transferable, limited license (without the right to grant sub-licenses) to use the GlycoCheck System for the purpose of conducting research relating to the vascular and microvascular endothelial glycocalyx of human and non-human animals, subject to the restrictions set forth herein Section 2.
1.2 Licensee shall have no right to sublicense, loan, sell, or otherwise transfer the GlycoCheck System, or any part or component thereof, to any third party without the prior written approval of MVHS.
1.3 MVHS retains all rights not expressly granted to Licensee hereunder. No right or license to Licensee shall be implied by or inferred from this Agreement except as expressly provided herein.
LICENSEE’S GENERAL COVENANTS
2.1 Subject to the terms and conditions of this Agreement, Licensee agrees that it will use the Software Product and GlycoCheck System only for the purpose for which it was designed and installed by MVHS.
2.2 Licensee shall not copy, reverse engineer, decompile, recompile, disassemble, or otherwise derive the underlying structure, information or ideas embodied in the Software Product. Licensee agrees such activities constitute a material breach of this Agreement, and are violations of MVHS’s Intellectual Property Rights, causing irreparable injury to MVHS which cannot be remedied by monetary damages alone, and which therefore entitle MVHS to injunctive relief.
2.3 Licensee shall not modify or remove any components of the System Hardware in any manner. Licensee shall not install, attempt to install, nor cause to be installed, any software product on the System Hardware without prior written authorization from MVHS, through Distributor, if any. Licensee agrees such activities constitute a material breach of this Agreement. Any violations of this Section 2.3 shall void any express warranty set forth herein, as well as any warranty implied under the law.
2.4 Licensee shall not use the System Hardware, Software Product, or GlycoCheck System to develop, substantiate the performance of, market, or sell, or assist others to develop, substantiate the performance of, market, or sell any dietary supplement or medical food that is intended to support, maintain, repair or treat the endothelial glycocalyx.
2.5 Licensee agrees that for the term of this Agreement, including the Initial Term and any subsequent Renewal Term, and for a period of one (1) year thereafter, Licensee shall not develop, manufacture, or sell, or assist others in the development, manufacture, or sale, of any dietary supplement or medical food that is intended to support, maintain, repair or treat the endothelial glycocalyx.
2.6 Licensee shall be solely responsible for its and its Authorized Users’ use of the GlycoCheck System and shall ensure that Licensee and all Authorized Users abide by and comply with this Agreement in connection with their use of the GlycoCheck System. Licensee shall be responsible to MVHS and any third party for any acts or omissions of Authorized Users, including, without limitation, failure of any Authorized User to comply with the terms of this Agreement. MVHS shall have the right to require Licensee to restrict or deny access to the GlycoCheck System by any Authorized User who is not in compliance with this Agreement.
2.7 Licensee acknowledges that the GlycoCheck System contains a backup utility that is capable of creating copies of the analyses performed by the GlycoCheck System, and capable of securely storing such copies in storage either on the System Hardware or in a cloud-based environment.
3.1 In consideration of the license granted herein, Licensee shall pay, or shall have previously paid, to MVHS, through Distributor, if any, a one-time license fee (the “License Fee”) as agreed upon in writing between Licensee and MVHS or Distributor, if any.
TERM AND TERMINATION
4.1 This Agreement shall come into effect on the Effective Date and remain in effect for one (1) year, unless otherwise terminated pursuant to this Agreement (the “Initial Term”).
4.2 At the end of the Initial Term, or any Renewal Term subsequent to the Initial Term, this Agreement may be renewed without additional fee for one (1) year (a “Renewal Term”) by the Parties in writing. The renewal of this Agreement shall be effectuated by: (i) Licensee requesting, in writing, a new Software Key from MVHS, through Distributor, if any; and (ii) MVHS providing, in writing, a new Software Key to Licensee, through Distributor, if any. Each Renewal Term shall be subject to the terms and conditions of this Agreement.
4.3 This Agreement can be terminated at any time with the mutual written consent of both Parties.
4.4 MVHS may terminate this Agreement at any time without prior notice and without any liability of MVHS to any party as a consequence thereof, upon the occurrence of any of the following: (i) Licensee has breached any material obligation which must be performed pursuant to this Agreement and such breach has not been cured within 30 days after notice from MVHS of the same, including, without limitation, failure to make any payment when due; (ii) Licensee has violated any applicable law or regulation in connection with its use of the GlycoCheck System, or (iii) Licensee becomes bankrupt or insolvent.
4.5 Licensee may terminate this Agreement at any time, without any liability of Licensee to MVHS as a consequence thereof (other than charges accrued prior to termination), where MVHS has breached any material obligation which must be performed pursuant to this Agreement and such breach has not been cured within 30 days after written notice from Licensee of the same.
4.6 Upon termination of this Agreement by Licensee or MVHS, all license(s) granted hereunder shall cease and terminate. There shall be no refund to Licensee of any Fees paid to MVHS prior to the effective date of the termination, including the License Fee, except as specifically provided herein. Licensee agrees to cease all use of the GlycoCheck System and promptly return the GlycoCheck System and all components thereof to MVHS at Licensee’s expense.
4.7 Except as otherwise specifically provided herein, the termination of this Agreement shall not affect the rights, obligations or remedies of either Party which accrued prior to the termination of this Agreement and all such remedies shall survive the termination of this Agreement
5.1 All rights, title and interest in the GlycoCheck System, and each and every component thereof, and the Intellectual Property Rights embodied therein shall at all times reside in MVHS. MVHS retains all rights not expressly granted herein
5.2 Licensee agrees and acknowledges that MVHS shall be the sole and exclusive owner of any and all right, title and interest in and to Improvements to the GlycoCheck System, whether made or developed by MVHS or by any other entity.
MAINTENANCE AND SUPPORT
6.1 MVHS agrees to provide the GlycoCheck System, with Software Product and System Hardware installed, to Licensee, through Distributor, if any.
6.2 For the term of the warranty identified in Schedule A hereto, MVHS shall provide to Licensee and/or through Distributor, if any, periodic Updates to the Software Product and System Hardware, if and to the extent that said Updates become available. MVHS shall, upon discovery of any known problems with the GlycoCheck System, notify Licensee, through Distributor, if any, of said problems and will provide to Licensee, through Distributor, if any, any discrepancy reports or technical newsletters when such problems are identified and listing all known “bugs” and their status and, to the extent possible, providing “fixes” and/or work-around procedures for such problems.
6.3 From time to time, MVHS may release Upgrades to the GlycoCheck System that provide new functionality to the software. Nothing herein shall entitle Licensee to any Upgrade to the GlycoCheck System. Such Upgrades will be provided to Licensee only upon payment of an additional license fee to be determined by MVHS upon release of any such Upgrade. Software bug fixes and minor improvements in the software will be provided to Licensee and/or through Distributor, if any, at no cost, and are not considered to be an Upgrade for purposes of this Section.
REPRESENTATIONS, WARRANTIES, AND DISCLAIMER OF LIABILITY
7.1 Each Party represents and warrants that it has full power and authority to enter into this Agreement and that performance of its obligation hereunder does not conflict with or breach the terms and conditions of any agreement with any third party.
7.2 MVHS warrants that it is the developer and/or licensee of the GlycoCheck System, that it has the right to convey the license set forth in Section 1 hereof, and that to the best of MVHS’s knowledge, Licensee’s use of the GlycoCheck System in accordance with the terms of this Agreement shall not infringe any third-party rights in copyright, patent, or trade secret.
7.3 MVHS warrants (the “Product Warranty”) that the GlycoCheck System (as set forth in Schedule A hereto) sold by MVHS to Licensee, through Distributor, if any, and pursuant to this Agreement shall, subject to the other provisions of this Section 7, from the Effective Date and for three (3) years thereafter:
(a) be of satisfactory quality; and
(b) be reasonably fit for its intended purpose.
MVHS does not warrant against normal and/or reasonable wear and tear, normal and/or reasonable corrosion, use of Unauthorized Products, catastrophe, accident, fault or negligence of Licensee, Distributor, or any third party, improper use, alteration or modification, unusual stress, installation, service or repair performed other than pursuant to this Agreement (other than installation, service or repair performed by MVHS and/or its appointees pursuant to this Agreement), defects caused by persons other than MVHS and/or its manufactures, or any other cause other than ordinary use. Accordingly, the Product Warranty does not extend to any GlycoCheck System (as set forth in Schedule A hereto): (a) that have been subject to misuse, neglect, abuse, improper storage, accident, or that have not been properly maintained; (b) that have been modified by Licensee, Distributor, or any third party; or (c) that have been disassembled, serviced, or reassembled by Licensee, Distributor, or any third party. Subject to the foregoing exclusions, if the GlycoCheck System contains a defect in design, materials or workmanship and such GlycoCheck System is returned to MVHS within three (3) years of the Effective Date of this Agreement, MVHS will repair or replace the GlycoCheck System, or issue a credit for the purchase price of the GlycoCheck System, with the choice to repair, replace or credit being within the sole discretion of MVHS. The foregoing repair, replacement or credit remedy will be Licensee’s sole remedy for breach of the warranty set forth in this Section 7.3. THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND EXCEPT FOR ANY EXPRESS WARRANTIES STATED HEREIN, MVHS EXPRESSLY DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED.
7.4 Written pre-authorization from MVHS, through Distributor, if any, is required for any warranty claim under the Product Warranty set forth in section 7.3. To obtain written pre-authorization from MVHS, Licensee shall request written pre-authorization from MVHS, through Distributor, if any, to return the GlycoCheck System or System Hardware thereof for repair or replacement under a valid warranty claim. Upon approval, Licensee shall receive from MVHS, through Distributor, if any, (i) written pre-authorization to return the GlycoCheck System or System Hardware thereof for repair or replacement, (ii) a pre-paid shipping label, and (iii) packaging and shipping procedures for returning the GlycoCheck System or System Hardware thereof for repair or replacement. Licensee shall then package and ship the GlycoCheck System or System Hardware thereof in accordance with the received packaging and shipping procedures.
7.5 The warranty set forth in Section 7.3 shall become null and void upon Licensee’s breach of this Agreement, alteration or modification of the GlycoCheck System or component thereof in any way or use of any Unauthorized Product in connection with the GlycoCheck System or component thereof.
7.6 Licensee acknowledges that the GlycoCheck System is provided to Licensee on an AS IS basis. EXCEPT AS OTHERWISE PROVIDED HEREIN, MVHS DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, WITH RESPECT TO THE GLYCOCHECK SYSTEM, DERIVATIVE WORKS, AND DOCUMENTATION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MVHS MAKES NO WARRANTY THAT THE GLYCOCHECK SYSTEM WILL MEET LICENSEE’S REQUIREMENTS, BE ERROR FREE, OR OPERATE WITHOUT INTERRUPTION.
7.7 THE PARTIES AGREE THAT MVHS, ANY OF ITS AFFILIATED PERSON/ENTITY OR THIRD PARTY VENDORS SHALL NOT BE LIABLE TO LICENSEE (OR ANY PERSON CLAIMING RIGHTS DERIVED FROM THE LICENSEE’S RIGHTS), EXCEPT AS OTHERWISE PROVIDE HEREIN, FOR ANY DIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS, LOSS OF DATA, PERSONAL INJURY, OR PROPERTY DAMAGE IN CONNECTION WITH OR ARISING OUT OF THE USE OF THE GLYCOCHECK SYSTEM AND DERIVATIVE WORKS, IRRESPECTIVE OF WHETHER MVHS HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
7.8 If the foregoing disclaimers and waivers of liability shall be deemed invalid or ineffective, MVHS, its subsidiaries and affiliates, and any related persons or entities shall not be liable in any and all events beyond the amount of one thousand dollars ($1,000). If the foregoing limitation is held unenforceable, then the Parties agree that MVHS, its subsidiaries, affiliates and any related persons or entities, shall not be liable in any and all events beyond the cumulative total of all fees and compensation paid by Licensee to MVHS under this Agreement (including all the License Fee referenced in Section 3.1). Both Parties agree and understand that the pricing for the GlycoCheck System reasonably reflects the allocation of risk and the limitations of the liability set forth in this section.
8.1 This Agreement may not be assigned or transferred by Licensee to any other entity or person. Any attempted assignment in violation hereof shall be void.
8.2 MVHS may freely assign this Agreement at any time to any subsidiary, parent or other affiliate or to any other party in connection with the sale, merger or other business combination involving all or substantially of that party’s assets of the line of business to which this Agreement pertains.
9.1 Relationship of the Parties. This Agreement shall not constitute the designation of either Party as the representative or agent of the other, nor shall either Party by this Agreement have the right or authority to make any promise, guarantee, warranty, or representation, or to assume, create, or incur liability or other obligation of any kind, express or implied, against, or in the name of, or on the behalf of, the other Party.
9.2 No Waiver. The failure of any Party to enforce any of its rights hereunder, or at law, shall not be deemed a waiver or a continuing waiver of any of its rights or remedies against the other Party, unless such waiver is in writing and signed by the aggrieved Party.
9.3 Notice. Any official notice to MVHS, as required by this Agreement, shall be addressed to Distributor, if any, as set forth in Appendix A hereto. Any official notice to Licensee, as required by this Agreement, shall be addressed to the contact person and address information reflected on the invoice or purchase order for the GlycoCheck System. Each of the Parties shall be responsible for notifying the other, through distributor, if any, of any changes to the respective Party’s contact information. All notices and other communications hereunder shall be given in writing and delivered: (a) by personal delivery, or by prepaid overnight or international courier service to the contact addresses as set forth in this Section 9.3, as modified from time to time; or (b) by facsimile to such facsimile number as maybe provided in writing by a Party. Notices are deemed given on receipt or attempted delivery, if receipt is refused.
9.4 Attorney Fees. In any suit, proceeding or action to enforce any term, condition or covenant of this Agreement or to procure an adjudication or determination of the rights of the Parties, the prevailing Party shall be entitled to recover from the other Party, in addition to any award of costs or disbursements provided by statute, reasonable sums as attorney fees and costs and expenses in connection with such suit, proceeding or action, including appeal, which sums shall be included in any judgment or decree entered therein.
9.5 Injunctive Relief. Notwithstanding the foregoing, it is agreed that any breach of this Agreement by Licensee making any unauthorized use of the GlycoCheck System or engaging in any other conduct which could impair MVHS’s Intellectual Property Rights in the GlycoCheck System will cause immediate and irreparable harm to MVHS. In the event of any such breach by licensee, MVHS shall be entitled to immediate and interim injunctive relief from any court of competent jurisdiction to restrain such unauthorized use or conduct, and to other injunctive relief as may be necessary to protect MVHS’s Intellectual Property Rights.
9.6 Severability. If any one or more provisions of this Agreement shall be found to be illegal, invalid or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid and enforceable provision of similar terms to the extent legally possible.
9.7 Headings. The paragraph headings used herein are for convenience and shall not be deemed to modify or construe the provisions hereof.
9.8 Counterparts. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
9.9 Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform any other services nor did obligations set forth in this Agreement due to cause beyond its reasonable control. Performance times shall be considered extended for a period of time equivalent to the time lost because of such delays.
10.1 “Authorized Users” means those persons who are employed by or affiliated with Licensee who have access to use the GlycoCheck System.
10.2 “System Hardware” means the (1) personal computer on which is loaded the Software Product, and (2) the Video Microscope Camera, which are provided to Licensee as part of the GlycoCheck System pursuant to the terms and conditions of this Agreement.
10.3 “Documentation” means all user manuals, reference guides, brochures, installation manuals, specifications, release notes, error message manuals or other written documentation provided by MVHS pertaining to the installation, use, data flows, features or performance of the Software Product.
10.4 “GlycoCheck System” means the combination of the System Hardware and the Software Product, collectively.
10.5 “Improvements” means and includes any improvements, modifications, or amendments to the Software Product, whether made by MVHS or any other party, or their respective employees, agents, or other representatives.
10.6 “Intellectual Property Rights” means patent, application for patent and rights to patent (whether applied for or not), copyrights (whether registered or not), trademarks (whether registered or not), trade secrets, inventions, know-how, moral rights, ideas, processes, techniques, data, confidential information and all other proprietary rights that are embodied in any form of media.
10.7 “Maintenance and Support” shall mean ongoing maintenance and support as set forth in Section 6 hereof, and shall include all new versions, revisions, updates, temporary and permanent fixes or workarounds that may be necessary or appropriate to facilitate Licensee’s use of the GlycoCheck System.
10.8 “Software Key” means the alphanumeric character string provided by MVHS to Licensee and used to enable use of the Software Product.
10.9 “Software Product” means the computer software program (in object code form and/or Source Code form), and forming part of the GlycoCheck System, and all associated procedural code, and all components thereof, including all Documentation, Updates, Upgrades, and all other software and documentation provided by MVHS to Licensee and/or through Distributor, if any, and all intellectual property rights therein.
10.10 “Source Code” means (i) the human-readable code making up the Software Product and all other software required for a reasonably skilled programmer to compile the machine-executable software code for such Software Product, including all required tools that are not commercially available on an off-the-shelf basis, and (ii) all related design charts, data flows and other documentation related to the Software Product needed to maintain and understand the code of the Software Product and all other similar documentation that would assist a programmer in the maintenance of the Software Product.
10.11 “Updates” means any and all fixes, patches, and corrections to, the Software Product or Documentation made independently by MVHS and made generally available by Licensor to Licensee.
10.12 “Upgrades” means any enhancements, improvements, new releases, new versions and any material changes to the Software Product or Documentation made independently by MVHS and generally offered by MVHS.
10.13 “Unauthorized Product” means any product used in connection with the GlycoCheck System or a component thereof that is not provided by MVHS and/or through Distributor, if any, to Licensee, including, but not limited to, (i) consumables, such as video microscope camera lens covers or tips, (ii) replacement laptop components, such as batteries, and (iii) software updates, fixes, or upgrades, but shall not include customary laptop accessories, such as a keyboard or mouse.
10.14 “Distributor” means, for each territory, the company or individual indicated in Appendix A hereto.
10.15 “You” or “Your” means the person or company who is being licensed to use the GlycoCheck System in association with this Agreement.