Platform Terms of Service

 

These Platform Terms of Service (these “Terms”), together with any applicable Order Form(s) (collectively, the “Agreement”), constitute a binding agreement between Nashville Biosciences, LLC, a Tennessee limited liability company with offices located at 3841 Green Hills Village Dr., Suite 200, Nashville, TN 37215 (“NashBio”) and Customer (as defined below) (each, a “Party” and together, the “Parties”) governing Customer’s access to and use of the Platform, Ancillary Services, and Service Items (each as defined below). By executing an Order Form incorporating these Terms, Customer accepts and agrees to be bound by the Agreement.

 

1. Definitions

As used in the Agreement, the following terms will have the following meanings. Additional terms are defined in the Sections in which they first appear.
1.1 “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, owns or controls, is owned or controlled by, or is under common ownership or control with such Person, for so long as such other Person controls, is controlled by or is under common control with such first Person, and regardless of whether such other Person is or becomes an Affiliate on or after the Effective Date. With respect to a Person that is an entity, the terms “own” and “control” mean (a) the possession, directly or indirectly, the right to possession or beneficial ownership of at least fifty percent (50%) of the voting securities of a corporation or other business organization with voting securities; (b) the power to direct or cause the direction of management and policies, whether through the ownership of voting securities, by contract or otherwise; (c) the power to appoint or remove a majority of the board of directors or trustees; and/or (d) the right to receive fifty percent (50%) or more of the profits or earnings or the right to fifty percent (50%) or more of the net assets. For the avoidance of doubt, VUMC is an Affiliate and VU is a deemed Affiliate of NashBio.
1.2 “Agent” means any officer, director, employee, agent, subcontractor (including any Third Party service vendor), consultant, or other authorized representative of a Party or Person, in each case under the direction of such Party.
1.3 “Ancillary Services” means, collectively, any ancillary, implementation, installation, data conversion, validation, training, or other professional services provided by NashBio or its Affiliates under the Agreement, as agreed between the Parties and set forth in an Order Form or a statement of work, exhibit, annex, addendum, or other document attached to or incorporated by reference into an Order Form.
1.4 “Applicable Law(s)” means (a) all applicable laws, statutes, constitutions, treaties, rules, regulations, ordinances, codes, guidance, and common law; and (b) all applicable judicial, executive, legislative, administrative or military orders, directives, decrees, injunctions, judgments, permits, agreements, and other legal requirements, in each case, of, with, or adopted or imposed by any Governmental Authority, now or hereafter in effect and, in each case, as amended from time to time.
1.5 “Authorized Users” means, with respect to Customer, Agents of Customer who have a need to access and use the Platform for the benefit of Customer consistent with the terms of the Agreement, and specifically excluding Third Party collaborators.
1.6 “Confidential Information” means all nonpublic information disclosed by either Party, its Affiliates, or their Agents (as applicable, such entities collectively, the “Disclosing Party”) to the other Party, its Affiliates, or their Agents (collectively, the “Receiving Party”) in connection with the Agreement that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of the Agreement; (b) was known by the Receiving Party prior to its receipt from the Disclosing Party; (c) is disclosed to the Receiving Party from any Third Party, except where the Receiving Party knows, or reasonably should know, that such disclosure constitutes a wrongful or tortious act; or (d) is independently developed by the Receiving Party without use of any Confidential Information. Without limiting the generality of the foregoing, (i) the Platform, Ancillary Services, Documentation, and Service Items are NashBio’s Confidential Information; and (ii) the Customer Data is Customer’s Confidential Information.
1.7 “Customer” means the legal entity (other than NashBio) that executed the Order Form.
1.8 “Customer Data” means information, data and/or files Customer transmits, uploads, or stores to or on the Platform in connection with the Agreement.
1.9 “Derived Products” means data, findings, algorithms, models, and other materials uniquely created by Customer as a result of Customer’s calculation, manipulation, analyses, or other use or processing of the Licensed Data, whether alone or in combination with other datasets, provided that such items (a) do not include individual level data, and (b) are materially different from the Licensed Data and not merely a rearrangement, reformulation, or other derivative work or minor modification of the Licensed Data.
1.10 “Documentation” means the most recent version of documentation of the functional operation of the Platform that is provided to Customer by NashBio or its Agents in connection with the Agreement.
1.11 “Effective Date” means the date upon which Customer is bound by the Agreement as described above.
1.12 “Field” means, unless otherwise defined in an Order Form, life sciences research, discovery and development of any medical, therapeutic or other life science insight, product or service, treatment protocol, diagnostics, tools, and other testing applications, treatments, drugs and pharmaceutical products, including to identify, elucidate or validate gene associations, biomarkers, targets, and biological pathways for the purpose of developing disease prevention measures, interventions, treatments, diagnostics, or stratifying patients based on disease risk, progression, or prognosis for purposes of promoting health, healthcare, and quality of life.
1.13 “Governmental Authority” means any domestic, international, or supranational federal, state, commonwealth, provincial, local or foreign governmental authority, entity, body, branch, agency, department, bureau, board, commission, officer, official, court, tribunal, or other entity, including any Agent thereof, exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government or law or having jurisdiction over any transaction related to the Agreement.
1.14 “Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.
1.15 “Licensed Data” means the data set(s) to be made available by NashBio via the Platform, as identified in the applicable Order Form, as well as subsets, modifications or other derivatives works of the same.
1.16 “Order Form” means a NashBio quotation or other document executed by the Parties from time to time setting forth the Platform, Ancillary Services, and Service Items being purchased by Customer, and the scope of use, pricing, payment terms, and other relevant terms relating thereto. Each Order Form will be a part of and be governed by these Terms. In the event of a conflict between these Terms and an Order Form, the Order Form will control solely for purposes of that Order Form.
1.17 “Person” means: (a) any corporation, partnership, limited liability company, joint venture, joint stock company, association, trust, business trust, estate, unincorporated organization, or other business entity recognized under Applicable Law; (b) any Governmental Authority, division or subdivision thereof, or (c) any individual.
1.18 “Platform” means the hosted software solution(s) identified on the Order Form.
1.19 “Service Items” means deliverables or modifications developed in connection with the configuration, implementation and/or support of the Platform or the performance of any Ancillary Services, including any technology, documentation, software, and procedures developed, conceived or introduced by or on behalf of NashBio, as well as any designs, inventions, methodologies, techniques, discoveries, know-how, show-how and works of authorship, all United States and foreign patents issued or issuable thereon, all copyrights and other rights in works of authorship, database designs, machine learning items, trade secrets, trademarks, trade names, and other forms of corporate or product identification, and any division, continuation, modification, enhancement, or derivative work of any of the foregoing.
1.20 “Third Party” means any Person other than NashBio, Customer, and their Affiliates.
1.21 “VU” means Vanderbilt University.
1.22 “VUMC” means Vanderbilt University Medical Center.

 

2. Platform; Services

2.1 Platform. In consideration for the payment of all fees and Customer’s ongoing compliance with the terms of the Agreement, and subject to the exceptions in Section 2.2 and Section 2.3, during the Subscription Term (as defined below in Section 6.2), NashBio or its Affiliates will use commercially reasonable efforts to make available the Platform and provide Customer the Ancillary Services set forth in Order Forms entered into between the Parties. NashBio hereby grants to Customer, during the Subscription Term, a non-exclusive, non-transferable license (without the right to sublicense, except to Customer’s Agents who are acting on Customer’s behalf and solely for Customer’s benefit) to use the Platform (including Licensed Data provided through the Platform) and any Service Items, solely within the Field and in accordance with the applicable Documentation and the Agreement. NashBio or its Affiliates will provide Customer with reasonable technical support for the Platform in accordance with the level of support described in the Order Form. For the avoidance of any doubt, the Licensed Data is provided under the Agreement solely through the Platform and not otherwise. Rights to receive Licensed Data outside the Platform may be available under a separate written agreement with NashBio.
2.2 Trial Version. Notwithstanding the terms of Section 2.1, if Customer’s access to the Platform is designated within the Order Form as being on a trial basis, Customer acknowledges and agrees that the applicable licenses and rights set forth in Section 2.1 are granted by NashBio to Customer solely for the trial period set forth in the applicable Order Form (“Trial Period”) for Customer’s own internal evaluation purposes, and subject to any and all technical limitations in the Trial Version. Customer acknowledges and agrees that if Customer has not purchased a subscription prior to the expiration of the Trial Period, the Agreement will automatically terminate (without the requirement of providing any termination notice) and the Trial Version may cease functioning. In addition to the restrictions set forth in Section 2.5, Customer will not attempt to circumvent, dismantle or otherwise interfere with any time-control disabling functionality in the Trial Version that causes the Trial Version to cease functioning upon the expiration of the Trial Period. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TRIAL VERSION IS PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY WHATSOEVER.
2.3 Beta Program. Notwithstanding the terms of Section 2.1, if Customer is participating in NashBio’s Beta Program, Customer acknowledges and agrees that the applicable licenses and rights set forth in Section 2.1 are granted by NashBio to Customer (a) through no more than the number of Authorized Users specified in the Order Form, (b) solely for the period in which Customer is enrolled in the Beta Program (“Beta Program Period”), (c) conditioned upon Customer’s ongoing compliance with the Beta Program Terms set forth at the end of these Terms and as may be updated by NashBio from time to time (the “Beta Program Terms”), and (d) subject to any technical limitations in the version of the Platform provided to Customer through the Beta Program (“Beta Program Version). Customer acknowledges and agrees that if Customer has not purchased a subscription prior to the expiration of the Beta Program Period, the Agreement will automatically terminate (without the requirement of providing any termination notice) and the Beta Program Version may cease functioning. In addition to the restrictions set forth in Section 2.5, Customer will not attempt to circumvent, dismantle or otherwise interfere with any time-control disabling functionality in the Beta Program Version that causes the Beta Program Version to cease functioning upon the expiration of the Beta Program Period. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, CUSTOMER ACKNOWLEDGES AND AGREES THAT, UNLESS OTHERWISE EXPRESSLY STATED IN THE BETA PROGRAM TERMS, THE BETA PROGRAM VERSION IS PROVIDED “AS-IS’ AND WITHOUT ANY WARRANTY WHATSOEVER. BETA PROGRAM VERSIONS ARE PRERELEASE AND ARE NOT AT THE LEVEL OF PERFORMANCE AND COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE OFFERING. BETA PROGRAM VERSIONS MAY NOT OPERATE CORRECTLY AND MAY BE SUBSTANTIALLY MODIFIED PRIOR TO FIRST COMMERCIAL SHIPMENT OR WITHDRAWN. NashBio will provide Customer with basic technical support during the Beta Program Period. NashBio makes no promise or guarantee of the level or quality of support available to Customer related to the Beta Program Versions but agrees to make reasonable efforts to support Customer’s testing of the Beta Program Versions during the Beta Program Period.

2.4 Subcontractors. In the event NashBio in its discretion engages one or more subcontractors to assist in the provision of the Platform and/or the performance of the Ancillary Services, NashBio will (a) ensure that such subcontractors are bound by obligations of confidentiality at least as protective of Customer Data and Customer’s other Confidential Information as set forth in the Agreement; and (b) be responsible for any breaches of the Agreement caused by the actions or inactions of such subcontractors.

2.5 Restrictions. Unless expressly stated otherwise in these Terms or the Order Form, Customer will not, and will ensure that its Authorized Users shall not: (a) make the Platform, Licensed Data, Documentation, or any Service Items available to anyone other than Customer or Authorized Users, or use the Platform, Licensed Data, Ancillary Services, Documentation, or Service Items for the benefit of anyone other than Customer; (b) sell, resell, license, sublicense, distribute, rent, or lease the Platform, Licensed Data, Ancillary Services, Documentation, or Service Items or include any of the foregoing in a service bureau or outsourcing offering; (c) use the Platform, Ancillary Services, Documentation, or Service Items to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use the Platform, Ancillary Services, Documentation, or Service Items to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of the Platform, Licensed Data, Ancillary Services, Documentation, or Service Items or third-party data contained therein; (f) attempt to gain unauthorized access to the Platform, Licensed Data, Ancillary Services, Documentation, or Service Items or their related systems or networks; (g) use the Platform, Ancillary Services, Documentation, or Service Items to access, copy, or use any NashBio intellectual property except as permitted under the Agreement; (h) modify, copy, or create derivative works of the Platform, Licensed Data, Ancillary Services, Documentation, or Service Items or any part, feature, function, or user interface thereof (but may create Derived Products); (i) frame or mirror any part of the Platform, Licensed Data, Ancillary Services, Documentation, or Service Items; (j) use any meta tags, hidden text, robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download Licensed Data; or (k) disassemble, reverse engineer, or decompile the Platform, Licensed Data, Ancillary Services, Documentation, or Service Items or access any of them to: (i) build a competitive product or service; (ii) build a product or service using similar ideas, features, functions or graphics of the Platform, Licensed Data, Ancillary Services, Documentation, or Service Items; (iii) copy any ideas, features, functions or graphics of the Platform, Ancillary Services, Documentation, or Service Items; or (iv) determine whether the Platform, Ancillary Services, Documentation, or Service Items are within the scope of any patent.

2.6 Usage Parameters. Customer’s right to access the Platform and the Licensed Data may be priced based on certain metrics (e.g. number of Authorized Users) as set forth in an Order Form. Customer may only expand its use of the Platform upon payment of additional fees at NashBio’s then-current rates. Any such fees for additional scope of use will be immediately due and payable.

2.7 Compliance with the Law. NashBio and Customer will each comply with all Applicable Laws, in each case as applicable to the Parties’ activities under the Agreement. Without limiting the foregoing, the Platform, Ancillary Services, Documentation, or Service Items, or portions of any of them, may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Customer will not, directly or indirectly, export, re-export, or release the Platform, Ancillary Services, Documentation, or Service Items to, or make the Platform, Ancillary Services, Documentation, or Service Items accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by Applicable Laws. In particular, but without limitation, the Platform, Service Items, or Documentation may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the Platform, Service Items, and Documentation, Customer represents and warrants that it is not located in any such country or on any such list. Customer 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 any portion of the Platform, Ancillary Services, Documentation, or Service Items available outside the United States.

2.8 De-Identified Data. All Licensed Data will be de-identified in accordance with the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. § 1320d et seq., prior to delivery by NashBio to Customer. Under no circumstances will identifiable Licensed Data or other identifiable patient records or health information be made available under this Agreement. Customer shall not, and shall not attempt, directly or indirectly, to re-identify any Licensed Data or other de-identified patient records or health information made available to it under this Agreement.

2.9 Audits; Records. Customer will maintain complete and accurate records of its use of the Platform, Licensed Data, and Service Items during the Subscription Term and for a period of 2 years thereafter. NashBio may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by the Agreement, provided that if such inspection and audit reveals that Customer has breached the Agreement, Customer will promptly cure the breach and reimburse NashBio for the costs of the audit. Such inspection and auditing rights will extend throughout the Subscription Term and continue for a period of 4 years thereafter.

 

3. Customer Obligations

3.1 Equipment. Except as set forth in an Order Form, Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Platform, Ancillary Services, Documentation, and Service Items, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Customer will also be responsible for maintaining the security of the Equipment, accounts, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Authorized Users’ accounts or the Equipment, with or without Customer’s knowledge or consent.
3.2 Customer-Provided Materials. Customer agrees to provide NashBio with reasonable access to Customer materials, personnel, Equipment, and facilities to the extent such access is necessary for NashBio to perform its obligations under the Agreement. To the extent that Customer does not timely provide the foregoing access, NashBio will be excused from performance until such access is provided. Customer hereby grants NashBio a limited right to use any Customer materials provided to NashBio in connection with the Agreement (the “Customer-Provided Materials”) for the purpose of providing the Platform and performing the Ancillary Services. Customer represents and warrants that it has all rights, licenses, and consents necessary to provide the Customer-Provided Materials to NashBio for use in connection with, and for the purposes contemplated by, the Agreement (including any consents required by applicable data protection regulation, rules, or laws). For the avoidance of doubt, as between Customer and NashBio, Customer owns and will retain ownership (including all intellectual property rights) in and to the Customer-Provided Materials.
3.3 Order Forms. Customer will comply with any additional Customer responsibilities set forth in an Order Form.
3.4 Authorized Users. Customer will be responsible for notifying Authorized Users of the terms of the Agreement applicable to such Authorized Users, including but not limited to the restrictions in Section 2.5 of these Terms, and for Authorized Users’ compliance with the terms of the Agreement.

 

4. Confidentiality; Security; Ownership

4.1 Each Party will (a) secure and protect the other Party’s Confidential Information using the same degree or greater level of care that it uses to protect such Party’s own confidential information, but no less than a reasonable degree of care; (b) use the Confidential Information of the other Party solely to perform its obligations or exercise its rights under the Agreement or to evaluate the possibility of entering into a potential business arrangement with the other Party that is not the subject of this Agreement; (c) only allow those Agents who (i) have a need to access such Confidential Information, and (ii) are bound by confidentiality obligations consistent with the terms of the Agreement, to have access to the Confidential Information of the Disclosing Party; and (d) not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any Third Party (excluding Agents consistent with the Agreement). A Party may disclose the other Party’s Confidential Information to the extent required by Applicable Law. In such event, the Party obligated to comply with such Applicable Law will notify the other Party of such obligation as soon as possible and, if legally permissible, in sufficient time to allow the other Party to respond or object to the disclosure.
4.2 Security Policies and Safeguards. NashBio will establish and maintain administrative, technical, and physical safeguards (“Safeguards”) designed to protect against the destruction, loss, unauthorized access or alteration of Customer Data in the possession or under the control of NashBio or to which NashBio has access in connection with the Agreement. The Safeguards will be no less rigorous than those maintained by NashBio for its own information of a similar nature; (b) generally accepted industry standards; and (c) required by Applicable Laws. In addition, the terms of the data processing addendum (“DPA”), available at https://nashbio.com/data-processing-addendum, shall apply if the Platform includes the processing of Personal Information (as defined in the DPA), and in which case Customer shall be the controller and NashBio shall be the processor. The Parties’ liability arising under or for breach of the DPA, including without limitation, for any Security Incident (as defined in the DPA), will be governed by these Terms.
4.3 Ownership. Except for the limited license rights granted to Customer in Section 2.1, Section 2.2, or Section 2.3 (as applicable), NashBio or its licensors will own and retain all right, title, and interest, including all intellectual property rights, in and to the Platform, Licensed Data, Ancillary Services, Documentation, and Service Items. All rights not expressly granted to Customer in the Agreement are reserved by and for NashBio and its licensors. As between the Parties, Customer will own and retain all right, title, and interest, including all intellectual property rights, in and to the Customer Data and the Customer-Provided Materials. Subject to Section 6.4 and NashBio’s retained rights in the Licensed Data in this Section 4.3, and except in the event Customer’s right to access the Platform and Licensed Data expired at the end of a Trial Period or Beta Program Period, Customer retains all rights in and to the Derived Products.
4.4 Customer Data. Customer grants NashBio and, if applicable, its hosting providers, a worldwide, limited-term license to host, copy, transmit and display Customer Data solely as necessary for NashBio to provide the Platform and the Services in accordance with the Agreement. Customer hereby grants NashBio a non-exclusive, royalty-free, fully paid-up license to collect and analyze data and other information relating to the provision, use and performance of the Platform and related systems and technologies (including, without limitation, information concerning Customer Data, in de-identified form, and data derived therefrom) and to use such information and data during and after the term of the Agreement to improve and enhance the Platform and for other development, diagnostic, and corrective purposes in connection with the Platform and other NashBio offerings.
4.5 Feedback. If Customer provides NashBio any feedback, suggestions, recommendations, or other input, or makes any improvements, enhancements, or modifications, relating to the Platform, Ancillary Services, Documentation, or any Service Items (collectively, “Feedback”), then Customer agrees to assign and hereby does assign to NashBio all right, title, and interest in and to such Feedback. To the extent any Feedback cannot be assigned as described in the preceding sentence, Customer hereby grants to NashBio and its Affiliates a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, sublicensable license to reproduce, perform, display, distribute, modify, create derivative works of, make, have made, use, sell, offer to sell, import, and otherwise dispose of such Feedback, and any modifications, derivative works, or implementations thereof and any product, software, or service that incorporates, is combined with or uses, or is marketed for use in combination with, any of the foregoing, in NashBio’s sole discretion and without compensation to or attribution of Customer or any other Person.

 

5. Payment of Fees

5.1 Invoicing and Payment. Customer will pay NashBio all fees and costs (e.g. storage and compute) owed under the Agreement, including as specified in the applicable Order Form, without setoff or deduction in accordance with this Section 5. If Customer’s use of the Platform exceeds the usage limitations set forth on the Order Form or otherwise requires the payment of additional fees, Customer will be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Payment will be made in the manner and according to the payment schedule specified in the Order Form. If no other timeframe is specified in the Order Form, Customer will make each payment within 30 days after the date of the invoice. All amounts due from Customer are exclusive of any taxes owed on such amounts, and Customer will be responsible for the payment of any such taxes, if any, other than any taxes ordinarily assessed against NashBio based on its income, if any. NashBio reserves the right to immediately suspend or terminate Customer’s access to the Platform, Licensed Data, and/or any Ancillary Services in the event any fees due and payable by Customer are more than 10 days late. If any amounts due from Customer under the Agreement are not timely paid, such unpaid amounts will be considered delinquent, and Customer will be assessed a late fee in the amount of 1% per month or the maximum applicable legal rate, if less, on the unpaid amount, accrued daily from the date due until paid. If such rate exceeds the maximum legal rate in the jurisdiction where a claim therefor is being asserted, the rate will be reduced to such maximum legal rate. Assessment of such late fees will not limit or preclude any other legal or equitable right or remedy to which NashBio may be entitled, under the Agreement or otherwise. Customer will reimburse NashBio for the reasonable costs it incurs in collecting any unpaid amounts pursuant to the Agreement. If Customer believes that NashBio has billed Customer incorrectly, Customer must contact NashBio no later than 15 days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Except as expressly set forth in the applicable Order Form, all fees are non-refundable. The Parties agree to work together in good faith to promptly resolve any dispute related to any payments due hereunder. Payment should be sent electronically via ACH.

5.2 Annual Increases. Unless otherwise agreed in the Order Form, following the Initial Subscription Term (as defined below in Section 6.2), fees are subject to annual increases to the level of then-current standard pricing, which will become effective beginning upon the first day of the next Subscription Renewal Term (as defined below in Section 6.2). NashBio will notify Customer of any increase at least 60 days prior to the expiration of the then-current subscription period. Such notice may be in the form of an invoice or any other form of notice used by NashBio to communicate with Customer. If Customer objects to the increase, Customer may elect to not renew its subscription.

5.3 Expenses. Customer will reimburse NashBio for all reasonable pre-approved travel, lodging, and out-of-pocket expenses incurred by NashBio in connection with providing the Ancillary Services under the Agreement.

 

6. Term; Termination; Effect of Termination

6.1 Agreement Term. The term of the Agreement begins on the Effective Date of the Order Form and, unless earlier terminated in accordance with this Section 6, continues until the termination or expiration of the subscription(s) under such Order Form.
6.2 Subscription Terms. Customer will purchase a subscription to one or more Platforms under an Order Form. Customer’s subscription begins on the “Subscription Effective Date,” which is either (a) the effective date of the Order Form; or (b) an alternate date mutually agreed by the Parties in writing. Unless the Order Form specifies a different period, Customer’s initial subscription for the Platform (the “Initial Subscription Term”) is 1 year, which begins on the Subscription Effective Date and ends on the first anniversary thereof. Unless otherwise agreed in the Order Form, at the end of the Initial Subscription Term the subscription will automatically renew for successive 1-year renewal periods (each, a “Subscription Renewal Term”) unless and until (i) either Party provides the other Party written notice of non-renewal at least 90 days before the expiration date of the Initial Subscription Term or the then-current Subscription Renewal Term (as applicable); or (ii) the Agreement is terminated in accordance with this Section 6.
6.3 Termination. Either Party may terminate the Agreement immediately upon notice in the event that the other Party (a) materially breaches the Agreement (including an Order Form) and fails to cure such breach within 30 days after receipt of written notice of the same, except in the case of Customer’s failure to pay fees when due, which must be cured within 10 days after receipt of written notice from NashBio; or (b) experiences a Bankruptcy Event. Without limiting any rights or remedies available to NashBio under the preceding sentence, NashBio will also have the right to terminate the Agreement immediately upon notice in the event Customer violates Sections 2.2, 2.3, 2.5, or 4. For purposes of the Agreement, “Bankruptcy Event” means: (i) voluntary or involuntary proceedings by or against a Party are instituted in bankruptcy or under any insolvency law; (ii) a receiver or custodian is appointed for a Party; (iii) proceedings are instituted by or against a Party for corporate reorganization or the dissolution of such Party, which proceedings, if involuntary, have not been dismissed within 60 days after the date of filing; (iv) a Party makes an assignment for the benefit of creditors; or (v) substantially all of the assets of a Party are seized or attached and not released within 60 days thereafter. In addition, either Party may terminate the Agreement for convenience upon 30 days’ notice at any time while there are no Order Forms in effect.
6.4 Effect of Termination. Upon termination or expiration of the Agreement for any reason: (a) all licenses granted under the Agreement will immediately terminate and Customer will immediately cease any and all use (including any use by its Authorized Users) of the Platform, Ancillary Services, Documentation, and Service Items; (b) NashBio’s obligation to provide the Platform and any support or Ancillary Services will immediately terminate; (c) Customer will pay in full for the Platform and Ancillary Services up to and including the end of the Initial Subscription Term or the then-current Subscription Renewal Term, as applicable; and (d) Customer will, within 10 days following termination or expiration of the Agreement, (i) destroy or return to NashBio, at NashBio’s option, all magnetic media or tangible items and material in Customer’s possession, custody, or control containing any NashBio Confidential Information; and (ii) certify such return or destruction in writing to NashBio. Customer will have the right to retain any Derived Products in Customer’s possession, custody or control as of the effective date of termination or expiration, except if (x) the Agreement is terminated by NashBio pursuant to Section 6.3 due to Customer’s material breach, or (y) Customer’s right to access the Platform and Licensed Data was granted for a Trial Period under Section 2.2 or Beta Program Period under Section 2.3 and Customer did not purchase a subscription prior to the end of such period. Subject to NashBio’s retained rights under Section 4.4 and NashBio’s obligation to return Customer Data and provide transition assistance under Section 6.5, NashBio will, within a reasonable period after Customer’s request, such period not to exceed 30 days, (1) destroy or return to Customer, at Customer’s option, all magnetic media or tangible items and material in NashBio’s possession, custody, or control containing any Customer Confidential Information; and (2) certify such return or destruction in writing to Customer. Each Party further agrees that, notwithstanding any certification required by this Section, the confidentiality terms in Section 4 above will, upon termination or expiration of the Agreement for any reason, continue in full force and effect with respect to Confidential Information received under the Agreement and will continue to be binding upon the Receiving Party following such termination. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PLATFORM, ANCILLARY SERVICES, DOCUMENTATION, AND SERVICE ITEMS MAY CONTAIN DISABLING CODE THAT (EITHER AUTOMATICALLY OR AT NASHBIO’S CONTROL) WILL RENDER THEM (AND RELATED DATA) UNUSABLE UPON TERMINATION OR CUSTOMER’S BREACH OF THE AGREEMENT. Sections 1, 4, 5, 6.4, 6.5, and 7-10 will survive the termination or expiration of the Agreement.
6.5 Return of Customer Data; Transition Assistance. Upon termination or expiration of the Agreement for any reason, NashBio will act in good faith and will continue to provide the Platform and perform Ancillary Services up to the effective date of termination or expiration to wind down the relationship in an orderly manner and to avoid disruption to Customer or its business. NashBio will make available to Customer or Customer’s Agent, for a period of 30 days following termination or expiration of the Agreement, the Customer Data then in NashBio’s possession. NashBio reserves the right to charge Customer at its then-standard rates for any professional services requested by Customer relating to Customer’s retrieval of Customer Data from the Platform following termination or expiration of this Agreement. For the avoidance of doubt, NashBio will not charge Customer additional fees solely for permitting Customer’s retrieval of Customer Data from the Platform. Upon request of Customer and at Customer’s sole expense, NashBio will provide, at its then-standard rates, one or more additional periods of data storage and/or transition services to assist Customer with its transition plans.

 

7. Limited Warranties

7.1 Limited Warranty. NashBio will use commercially reasonable efforts to provide the Platform in a manner which minimizes errors and interruptions. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by NashBio or by third-party providers, or because of other causes beyond NashBio’s reasonable control. NashBio will use reasonable efforts to provide advance notice in writing (including by e-mail) regarding any scheduled disruption. If Ancillary Services are specified within an Order Form, NashBio will provide such Ancillary Services in a professional and workmanlike manner.
7.2 Remedies. Customer’s sole and exclusive remedy for any breach of the warranties set forth herein or in an Order Form will be to notify NashBio of the applicable non-conformity, in which case NashBio will use commercially reasonable efforts to correct such non-conformity by re-establishing access to the Platform or re-performing the Ancillary Services, as applicable. Notwithstanding the foregoing, NashBio will not be responsible for any non-conformity that arises as a result of (a) any act or omission of Customer, including a failure to use the Platform in conformance with the Documentation and the Agreement; (b) any person other than NashBio making modifications to the Platform in any way without NashBio’s prior written consent; or (c) any failure of any component of Equipment, hardware, software, or other materials not supplied by NashBio or its Agents under the Agreement.
7.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 ABOVE, THE PLATFORM, ANCILLARY SERVICES, DOCUMENTATION, AND SERVICE ITEMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NASHBIO AND ITS LICENSORS MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, INDUSTRY STANDARD, OR OTHERWISE. IN PARTICULAR, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY EXCLUDED. NASHBIO DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS: (A) THAT THE PLATFORM, LICENSED DATA, OR ANCILLARY SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (B) THAT THE PLATFORM, LICENSED DATA, OR ANCILLARY SERVICES WILL BE ERROR FREE OR FUNCTION IN AN UNINTERRUPTED MANNER; OR (C) REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE PLATFORM, LICENSED DATA, OR ANCILLARY SERVICES IN TERMS OF CORRECTNESS, COMPLETENESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE.

 

8. Indemnification

8.1 NashBio Indemnity. NashBio will indemnify, defend, and hold harmless Customer, its Affiliates, and their respective members, managers, directors, trustees, officers, Agents and employees from and against any and all losses, liabilities, fines, penalties, assessments, judgments, damages, costs and expenses, including reasonable attorneys’ fees (collectively, “Losses”), incurred by them in connection with any claim, allegation, action, or proceeding (“Claims”) by a Third Party that Customer’s use of the Platform, Licensed Data, or any Service Item as permitted under the Agreement infringes, misappropriates or violates the Third Party’s intellectual property rights. If such a Claim is made or NashBio believes such a Claim may be brought, NashBio may, at its option, (a) modify or replace the portion of the Platform, Licensed Data, or Service Item that is the subject of the Claim or (b) obtain rights for Customer to continue using the Platform, Licensed Data, or Service Item that is the subject of the Claim as contemplated under the Agreement. If NashBio reasonably determines that neither (a) or (b) are commercially feasible, NashBio may terminate the Agreement, in whole or in part, effective immediately upon written notice to Customer, and provide a refund to Customer of any pre-paid fees for the period after termination. NashBio’s obligations under this Section 8.1 do not apply to any Losses or Claims arising from (i) use of a Trial Version or a Beta Program Version, (ii) use of the Platform, Licensed Data, or Service Items in combination with data, software, hardware, equipment or technology not provided by NashBio, (iii) modification of the Platform, Licensed Data, or Service Items by anyone other than NashBio, or (iv) any act or omission by Customer or anyone acting on Customer’s behalf that is a breach of the Agreement. This Section 8.1 sets forth Customer’s sole and exclusive remedy with respect to any Claim for an alleged violation of a Third Party’s intellectual property rights by the Platform, Licensed Data, or Service Items.
8.2 Customer Indemnity. Notwithstanding any other term herein, Customer acknowledges that Customer will be solely responsible and liable for the direct or indirect design, development, quality, operability, safety and efficacy of any products or devices developed in whole or in part using the Platform, the Licensed Data, any Service Items, or any other information or documents provided by NashBio to Customer hereunder. Customer will indemnify, defend, and hold harmless NashBio, its Affiliates, licensors, and suppliers, and each of their respective members, managers, directors, trustees, officers, Agents and employees from and against any and all Losses incurred by them in connection with any Claim, in each case brought by a Third Party (including contractors, subcontractors, consultants, and other research partners) which arise from or are related in any way to (a) Customer’s breach of any representation, warranty, or obligation under this Agreement, or (b) Customer’s or its Authorized Users’ use of the Platform, Licensed Data, Documentation, or any Service Items in a manner not authorized by the Agreement, unless such Claim (i) is covered by NashBio’s indemnification obligation in Section 8.1, or (ii) arises solely out of NashBio’s gross negligence, willful misconduct, or violation of Applicable Law.
8.3 Procedures. The foregoing obligations in this Section 8 are conditioned on the indemnified party giving the indemnifying party: (a) prompt written notice of the Claim within a reasonable time after becoming aware of the same, provided that late notice will only relieve the indemnifying party of its obligations with respect to a Claim under this Section 8 to the extent the indemnifying party can demonstrate that its ability to defend such Claim was materially prejudiced by such late notice; (b) reasonable assistance, at the indemnifying party’s sole expense and upon written request, in the preparation for and defense of any such Claim; and (c) the right to approve or reject the settlement of such Claim. Notwithstanding the foregoing, the indemnifying party will not compromise or settle any Claim that materially prejudices any indemnified party, and the indemnified party will not compromise or settle any Claim that materially prejudices the defense or settlement negotiations of a Claim by the indemnifying party, in each case without the prior written consent of the other Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, each Party will have the right to participate at its own expense in the defense of any Claims through counsel of its own choosing.

 

9. Limitation of Liability

IN NO EVENT WILL NASHBIO OR ITS LICENSORS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE AGREEMENT OR CUSTOMER’S USE OR INABILITY TO USE (X) THE PLATFORM, ANCILLARY SERVICES, DOCUMENTATION, OR SERVICE ITEMS OR (Y) ANY THIRD-PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE PLATFORM, ANCILLARY SERVICES, DOCUMENTATION, OR SERVICE ITEMS, IN EACH CASE ((X) AND (Y)) HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF NASHBIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NASHBIO’S MAXIMUM AGGREGATE LIABILITY FOR ANY CAUSE WHATSOEVER ARISING UNDER OR RELATED TO THE AGREEMENT IS LIMITED TO THE AMOUNT OF FEES PAID TO NASHBIO BY CUSTOMER UNDER THE APPLICABLE ORDER FORM WITHIN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

 

10. Miscellaneous

10.1 Entire Agreement. The Agreement constitutes the entire agreement between the Parties pertaining to the subject matter contained herein and merges and supersedes all prior and contemporaneous agreements, term sheets, letters of intent, representations, and understandings of the Parties that relate to the subject matter of the Agreement.
10.2 Government End Users. The Platform, Licensed Data, Documentation, and Service Items are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are hereby reserved under the copyright laws of the United States.
10.3 Cumulative Remedies; Injunctive Relief. The remedies provided herein will not be deemed exclusive, but will be cumulative and will be in addition to all other remedies provided by law or equity. Customer acknowledges and agrees that, because of the unique and proprietary nature of the Platform, Licensed Data, Ancillary Services, Service Items, and Documentation, actual or threatened breach of the Agreement by Customer would cause NashBio and its licensors irreparable damage for which recovery of money damages would be inadequate, and that NashBio and its licensors will be entitled to seek injunctive relief, specific performance, and other equitable remedies without the requirement of posting a bond and in addition to all other remedies provided hereunder or available to NashBio or its licensors at law.
10.4 No Waiver. No waiver of any of the provisions of the Agreement will be deemed or will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. No waiver will be binding unless executed in writing by the Party making the waiver.
10.5 Binding Agreement; Assignment. The Agreement will be binding upon, and will inure to the benefit of, the Parties and their respective legal representatives, successors, and assigns. Customer may not assign the Agreement or any of its rights hereunder, or delegate any of its duties to be performed hereunder, without the prior written consent of NashBio. No assignment, delegation or transfer will relieve either Party of the performance of any accrued obligation that such Party may have under the Agreement.
10.6 Severability. If any provision of the Agreement is rendered invalid or unenforceable by the enactment of any applicable statute or ordinance or by any regulation duly promulgated or is made or declared unenforceable by any court of competent jurisdiction, the remainder of the Agreement will remain in full force and effect.
10.7 Notices. All notices, requests, demands or other communications under the Agreement will be in writing and will be deemed to have been duly given on the date of receipt by personal delivery on or email to the Party to whom notice is to be given, or, by first class mail, registered or certified, postage prepaid, and properly addressed to the Parties or their permitted assignees at the address indicated in the Order Form (or at such other addresses as will be given in writing by either of the Parties to the other).
10.8 Governing Law. The Agreement will be governed in all respects by, and be construed in accordance with, the laws of the State of Delaware without regard of conflicts of law provisions. Each Party hereby consents to the jurisdiction of all state and federal courts sitting in Davidson County, Tennessee, agrees that venue for any such action will lie exclusively in such courts, and agrees that such courts will be the exclusive forum for any legal actions brought in connection with the Agreement or the relationship between the Parties hereto. No action, regardless of form, may be brought by Customer more than one year after the cause of action accrued.
10.9 Media. Each Party agrees that it will not use the other’s name in any advertising, promotional material, press release, publicity, or through other public media, written or oral, without prior written consent of the other Party; provided, however, that the Parties consent to public notice of the existence and general nature of the Agreement (such as by listing Customer as a client on NashBio’s website), but not the terms and conditions, outcomes, or deliverables hereunder.
10.10 Force Majeure. Neither Party will be liable for a delay in its performance of its obligations and responsibilities under the Agreement due to extraordinary causes beyond its control, such as but not limited to war or acts of terrorism (whether using conventional or cyber-weapons), embargo, national emergency, government order, insurrection or riot, acts of the public enemy, fire, flood, pandemic, or other natural disaster, provided that such Party has taken reasonable measures to notify the other, in writing, of the delay and to avoid such occurrence and to remedy it promptly.
10.11 Independent Contractor. Each Party will be considered to be an independent contractor and will not be construed to be an Agent or representative of the other Party, and therefore, has no liability for the acts or omissions of the other Party. In addition, neither Party, nor any of its employees, Agents, or subcontractors, will be deemed to be employees or Agents of the other Party. Therefore, neither Party nor any of its employees, Agents, or subcontractors, will be entitled to compensation, workers’ compensation, or employee benefits of the other Party by virtue of the Agreement.
10.12 Other Research/Services. Each Party will have the right to enter into similar agreements with other parties. Customer acknowledges that NashBio and its Affiliates may provide to other clients, including competitors of Customer, data and services that are the same as or similar to the Platform, Licensed Data, and Ancillary Services. Nothing in the Agreement precludes NashBio or its Affiliates from using such data, from providing such services or data, or from using the same personnel in performance of such other agreements, provided in each case NashBio remains subject to the confidentiality and other obligations under the Agreement.
10.13 Publications. Customer agrees not to publish any result derived from the Licensed Data without NashBio’s prior review and approval. Customer will furnish NashBio with a copy of any such proposed publication or presentation at least 30 days in advance of the proposed publication date for review. If directed by NashBio, Customer will delete or modify any provisions referencing NashBio, the Platform, Licensed Data, Ancillary Services or the Agreement contained in such proposed publication or presentation. Customer further agrees to delay publication for up to an additional 60 days if NashBio determines that such additional time is necessary in order to permit the preparation and filing of U.S. patent applications or otherwise to protect NashBio’s Confidential Information.
10.14 No Third-Party Beneficiaries. Except for the indemnification provisions set forth herein, the Agreement is intended solely for the benefit of the Parties and will not be deemed to create any rights in any other person or entity.
10.15 Counterparts; Electronic Signatures. Documents comprising the Agreement, including Order Forms, may be executed in 2 original counterparts, each of which will be deemed an original, but both of which together will constitute one and the same instrument. Delivery of an executed signature page to the Agreement by facsimile or other electronic transmission (including DocuSign and documents in PDF format) will be effective as delivery of a manually executed counterpart to the Agreement.
10.16 Due Authority. Each Party’s execution, delivery, and performance of the Agreement (and each Order Form hereunder) has been duly authorized by all necessary corporate action and will not conflict with any other agreement binding on such Party. Documents comprising the Agreement, when executed and delivered by each Party, will be the legal, valid, and binding obligation of such Party, in each case enforceable in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization, or similar laws then in effect that govern the enforcement of creditors’ rights generally. All Persons who have executed the Agreement on behalf of a Party have been duly authorized to do so by all necessary corporate action.
10.17 Changes to the Platform, Services, and Terms. NashBio will have the right to implement changes to the Platform and Services from time to time at its sole discretion; provided, that such changes (a) do not result in a material breach of the Agreement by NashBio, and (b) do not materially and adversely affect the benefit of the Platform or the Services to Customer as contemplated under the Agreement. NashBio reserves the right to change, update or modify these Terms at any time. The revised Terms will be posted on the webpage located at https://nashbio.com/terms (the “Site”), and NashBio will use commercially reasonable efforts to notify Customer of such updated Terms by posting a notice on the Site and/or through the user interface of the Platform that the Terms have been updated. With respect to material changes to these Terms, NashBio will provide Customer with reasonable notice prior to the change taking effect by emailing the email address associated with Customer’s account. The materially revised Terms will become effective on the date set forth in the notice, and all other changes will become effective from the day they are posted on the Site. Customer is solely responsible for reviewing these Terms for any changes and/or modifications. If Customer (or any Authorized User) accesses or uses the Platform or any Service (or any part thereof) after the applicable effective date of the revised Terms, that use will constitute Customer’s acceptance of any revised terms and conditions.

 

Last revised: 2024.11.15