ࡱ> #` bjbj 4b(OOO8OhP|(EbP(QQQQQQQ]]]]%(]Bj_Ba$UcheaXQQXXaQQa$i[i[i[XQQ]i[X]i[i[i[QP $=OOYYdi[M\ b<Ebi[YfYTYfi[Yfi[QSli[T$U%QQQaa[XQQQEbXXXX(($Ld$,"((L,((( NON-EXCLUSIVE LICENSE AGREEMENT Re: Baylor BLG # __ Entitled _________ This Non-Exclusive License Agreement, (hereinafter called Agreement) to be effective as of the ___ day of ____, 2008 (hereinafter called "Agreement Date"), is by and between Baylor College of Medicine (hereinafter called "BAYLOR"), a Texas nonprofit corporation having its principal place of business at One Baylor Plaza, Houston, Texas 77030, and ____________, a corporation organized under the laws of _______ and having a principal place of business at __________, and its Affiliates hereinafter, collectively referred to as LICENSEE). WITNESSETH: WHEREAS, BAYLOR's mission is to advance human health through the integration of education, research, patient care and community service; and WHEREAS, certain Developers (defined below) have represented to BAYLOR that they have developed certain software during the course of and within the scope of their employment by BAYLOR such that BAYLOR is the owner of the certain software (termed Baylor Code); and WHEREAS, the same certain Developers have represented to BAYLOR that they determined that it is advantageous to use in conjunction with the Baylor Code certain Third Party Code (defined below); and WHEREAS, the same certain Developers have represented to BAYLOR that they have been able to successfully use the Baylor Code in conjunction with the Third Party Code and that use forms what is termed for purposes of this Agreement Licensed Code (further defined below); and WHEREAS, BAYLOR desires to grant to LICENSEE a fee-bearing, worldwide, non-exclusive license to the Licensed Code for LICENSEE's research purposes, upon the terms set forth herein; and WHEREAS, LICENSEE desires to obtain the aforementioned non-exclusive license under the Licensed Code. NOW, THEREFORE, for and in consideration of the promises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto expressly agree as follows: 1. DEFINITIONS AS USED HEREIN 1.1 The term "Affiliates" shall mean any corporation, partnership, joint venture or other entity which LICENSEE, directly or indirectly, owns or controls by LICENSEEs ownership of at least fifty percent (50%) of the entitys common stock or other ownership. 1.2 The term "Confidential Information" shall mean any and all software and code and information, manuals, methods of operation and instructions directed to same, other information, data, drawings, know-how, trade secrets or Materials (as defined below) that are owned by BAYLOR. The term Confidential Information is further defined in Section 13 below. 1.3 The term Developers shall mean ________________________, employees of BAYLOR. 1.4 The term Licensed Code shall mean (i) the Source Code and Object Code relating to BLG # ____ entitled ______ which was developed by the Developers (and forming a portion of that which is termed also in this Agreement as Baylor Code) and (ii) the relevant Third Party Code. The Licensed Code is more fully described in Appendix 1. 1.5 The term "Materials" shall mean any tangible materials including, but not limited to the written, digital or electronic expression of software or code, drawings, flow charts, and information associated therewith, samples, mock-ups, electronic files and databases for or including same, three dimensional representations, and any know-how or Confidential Information incorporated or otherwise embodied in such components. 1.6 The term Object Code shall mean computer programming code, substantially or entirely in binary form, which is intended to be directly executable by a computer after suitable processing but without the intervening steps of compilation or assembly. 1.7 The term Party shall mean either LICENSEE or BAYLOR, and "Parties" shall mean LICENSEE and BAYLOR. 1.8 The term Source Code shall mean computer programming code in human-readable programming language, other than Object Code, and related source code level system documentation, comments and procedural code, such as job control language, which may be printed out or displayed in human readable form. 1.9 The term Third Party Code shall mean software developed by third parties or by BAYLOR that is available under certain public licenses. The Third Party Code is more fully described in Appendix 2. 2. GRANT OF LICENSE 2.1 LICENSEE shall have the right to exercise the following rights with respect to the following properties of BAYLOR on a non-exclusive basis throughout the world. (i) Confidential Information BAYLOR grants the right to LICENSEE to use the Confidential Information solely for research purposes on any computer located in research laboratories at LICENSEE. LICENSEE shall protect the Confidential Information from public disclosure, except to the extent which BAYLOR expressly permits in a separate writing. (ii) Copyright BAYLOR grants to LICENSEE the right to copy, modify, prepare derivative works of and distribute the Baylor Code portion of the Licensed Code solely for research purposes on any computer located in research laboratories at LICENSEE; provided that LICENSEE protects from public disclosure that portion of the Licensed Code that is also the Confidential Information of BAYLOR. 2.2 This grant does not include the right to sublicense the Confidential Information or Licensed Code. LICENSEE shall not distribute or transfer the Confidential Information or Licensed Code to any other company, institution or person without the prior written permission of BAYLOR 2.3 Government Reservation. Rights under this Agreement are subject to rights required to be granted to the Government of the United States of America pursuant to 35 USC Section 200-212, including a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the United States the subject inventions throughout the world. 3. DELIVERY 3.1 Upon receipt of the license fee described in Paragraph 4.1, BAYLOR shall, within thirty (30) days thereof, deliver to LICENSEE one copy of the Licensed Code. The Licensed Code will be deemed accepted when delivered unless LICENSEE has notified BAYLOR within thirty (30) days of delivery that the delivery was incomplete. 3.2 The Licensed Code shall be sent: (i) via FTP access or (ii) to the address below via ____ overnight courier using LICENSEEs courier account number _____. Company Scientist Company Name Address City, State, Zip Phone _____________ E-Mail _____________ 4. PAYMENTS AND REPORTS 4.1 As partial consideration for the rights conveyed by BAYLOR under this Agreement, LICENSEE agrees to pay BAYLOR an initial, non refundable, license execution fee of _____ dollars ($XXX). Such payment shall be delivered to BAYLOR concurrent with the execution of this Agreement (except if the invoice language is included per Paragraph 4.8). 4.2 In addition to the foregoing license execution fee, LICENSEE agrees to pay to BAYLOR an annual non refundable maintenance fee of ______ dollars ($XXX), which shall be due and payable on the first anniversary and on each subsequent anniversary of the Agreement Date. 4.3 Should LICENSEE fail to make any payment whatsoever due and payable to BAYLOR hereunder, BAYLOR may, at its sole option, terminate this Agreement as provided in Section 7. 4.4 All payments due hereunder are payable by check or wire transfer in United States dollars and shall be deemed received when the complete payment is credited to BAYLORs bank account. Until all funds are received by BAYLOR, the payment by LICENSEE is not considered to be complete. No transfer, exchange, collection or other charges, including any wire transfer fees, shall be deducted from such payments. 4.5 Late payments shall be subject to a charge of one and one-half percent (1.5%) per month, the interest being compounded annually, or two hundred fifty dollars ($250.00), whichever is greater. LICENSEE shall calculate the correct late payment charge, and shall add it to each such late payment. Said late payment charge and the payment and acceptance thereof shall not negate or waive the right of BAYLOR to seek any other remedy, legal or equitable, to which it may be entitled because of the delinquency of any payment. LICENSEE shall indemnify BAYLOR for all attorneys fees and costs BAYLOR incurs in obtaining a full payment of that which is owed to BAYLOR. 4.6 If payments are sent by check, they shall be sent to the address listed in Paragraph 11.1. If payments are sent by wire transfer, they shall be sent using the wiring instructions sent by BAYLOR. 4.7 In the event of acquisition, merger, change of corporate name, or change of make-up, organization, or identity, LICENSEE shall notify BAYLOR in writing within thirty (30) days of such event. If LICENSEE requires an invoice, use this language: 4.8 Any amounts payable to BAYLOR hereunder shall be made in full within thirty (30) days after receipt by LICENSEE of an invoice covering such payment. The Parties understand and agree that one (1) invoice will be sent to LICENSEE by BAYLOR for each fee due. The invoice shall be in the form in Appendix ___. Any additional fees, such as taxes, wire or transfer fees, will not be included in the invoice, but payment of such fees shall remain the responsibility of LICENSEE and shall not be deducted from the payment due BAYLOR. Subsequent invoices, if requested by LICENSEE, shall be subject to an administrative fee of five hundred dollars ($500), in addition to the original payment due to BAYLOR plus any interest charges incurred due to delays in payment, if applicable. The calculation and payment of such interest payments shall not be invoiced and shall be the sole responsibility of the LICENSEE. Invoices shall be sent via facsimile to the address listed in Paragraph 11.1. If LICENSEE requires an original invoice, such invoice shall be sent via overnight courier using LICENSEEs courier ________ (Name Courier) account number _____. 5. NO Upgrades/No Service/delivered as is 5.1 It is expressly understood and agreed that the Confidential Information, Materials and Licensed Code are provided to LICENSEE on as "AS IS" basis and that neither BAYLOR nor the Developers will be responsible for future support of the Licensed Code. 5.2 LICENSEE acknowledges that BAYLOR will not provide maintenance for or support of the Licensed Code. If LICENSEE finds defects, bugs, in the Licensed Code, LICENSEE may notify BAYLOR of the existence of the same. Neither BAYLOR nor the Developers shall, however, have any obligation to fix any bugs in or improve or upgrade the Licensed Code. 5.3 LICENSEE assumes full responsibility for the integration of the Licensed Code into its systems and the maintenance and support thereof. 6. TERM AND EXPIRATION Unless earlier terminated as hereinafter provided, if LICENSEE shall make timely fee payments hereunder for a period of ten (10) years from the Agreement Date, LICENSEE shall be granted a fully paid non-exclusive license to the Licensed Code. 7. TERMINATION 7.1 In the event of default or failure by LICENSEE to perform any of the terms, covenants or provisions of this Agreement, LICENSEE shall have thirty (30) days after the giving of written notice of such default by BAYLOR to correct such default. If such default is not corrected within the said thirty (30) day period, BAYLOR shall have the right, at its option, to cancel and terminate this Agreement. The failure of BAYLOR to exercise such right of termination, for non-payment of fees or otherwise, shall not be deemed to be a waiver of any right BAYLOR might have, nor shall such failure preclude BAYLOR from exercising or enforcing said right upon any subsequent failure by LICENSEE. 7.2 BAYLOR shall have the right, at its option, to cancel and terminate this Agreement in the event that LICENSEE shall (i) become involved in insolvency, dissolution, bankruptcy or receivership proceedings affecting the operation of its business or (ii) make an assignment of all or substantially all of its assets for the benefit of creditors, or in the event that (iii) a receiver or trustee is appointed for LICENSEE and LICENSEE shall, after the expiration of thirty (30) days following any of the events enumerated above, have been unable to secure a dismissal, stay or other suspension of such proceedings. 7.3 LICENSEE shall have the right to terminate this Agreement by giving written notice thereof to BAYLOR no later than sixty (60) days prior to any anniversary of the Agreement Date, such notice to be effective as of the impending anniversary date. Following the effective date of such termination notice, LICENSEE shall have no further obligation for payment of licensing fees hereunder. For clarification, if LICENSEE provides written notice of termination to BAYLOR fifty-nine (59) or fewer days prior to the anniversary of the Agreement Date, LICENSEE shall be obligated to pay the annual maintenance fee for such anniversary date per Paragraph 4.2, even though such payment would occur after the notice of termination. 7.4 In the event of any termination of this Agreement, all rights to the Confidential Information and Licensed Code shall revert to BAYLOR. At the date of any termination of this Agreement, LICENSEE shall immediately return the Confidential Information and Licensed Code and all copies thereof or copies of parts thereof to BAYLOR and LICENSEE shall immediately remove the Confidential Information and Licensed Code, or any parts thereof, from the memory of all of its computers and send to BAYLOR a written affirmation of such removal signed by an officer of LICENSEE. 7.5 In the event this Agreement is terminated pursuant to this Section 7, or expires as provided for in Section 6, BAYLOR is under no obligation to refund any payments made by LICENSEE to BAYLOR prior to the effective date of such termination or expiration. 7.6 No termination of this Agreement shall constitute a termination or a waiver of any rights of either Party against the other Party accruing at or prior to the time of such termination. The obligations of Sections 4, 7, 10, 11, 12, 13 and 14 shall survive termination of this Agreement. 8. ASSIGNABILITY This Agreement may not be assigned. 9. GOVERNMENTAL COMPLIANCE 9.1 LICENSEE shall at all times during the term of this Agreement and for so long as it shall use the Licensed Code comply with all laws that may control the import, export, manufacture, use, sale, marketing, distribution and other commercial exploitation of the Licensed Code or any other activity undertaken pursuant to this Agreement. 9.2 Export Control Regulations. The Licensed Code is subject to, and LICENSEE agrees to comply in all respects with, U.S. law including but not limited to U.S. export controls under the Export Administration Regulations (15 C.F.R. Part 734 et seq.) and U.S. economic sanctions and embargoes codified in 31 C.F.R. Chapter V. LICENSEE agrees that LICENSEE bears sole responsibility for understanding and complying with current U.S. trade controls laws and regulations as applicable to its activities subject to this Agreement. Without limitation on the general agreement to comply set forth in the first sentence of this Paragraph 9.2, LICENSEE agrees not to sell any goods, services, or technologies subject to this Agreement, or to release or disclose or re-export the same: (i) to any destination prohibited by U.S. law, including any destination subject to U.S. economic embargo; (ii) to any end-user prohibited by U.S. law, including any person or entity listed on the U.S. government's Specially Designated Nationals list, Denied Parties List, Debarred Persons List, Unverified List, or Entities List; (iii) to any foreign national in the U.S. or abroad without prior license if required; or (iv) to any user, for any use, or to any destination without prior license if required. Furthermore, LICENSEE agrees that any transfer of Patent Rights from BAYLOR to LICENSEE under this Agreement is subject to U.S. export license authorization as may be required under U.S. law. [ADD HIGHLIGHTED PHRASE IF APPLICABLE] 10. ARBITRATION 10.1 Amicable Resolution. The Parties shall attempt to settle any controversy between them amicably. To this end, a senior executive from each Party shall consult and negotiate to reach a solution. The Parties agree that the period of amicable resolution shall toll any otherwise applicable statute of limitations. However, nothing in this clause shall preclude any Party from commencing mediation if said negotiations do not result in a signed written settlement agreement within thirty (30) days after written notice that these amicable resolution negotiations have commenced. 10.2. Mediation. If a controversy arises out of or relates to this Agreement, or the breach thereof, and if the controversy cannot be settled through amicable resolution, the Parties agree to try in good faith to settle the controversy by mediation before resorting to final and binding arbitration. The Party seeking mediation shall propose five mediators, each of whom shall be a lawyer licensed to practice by the state of Texas, having practiced actively in the field of commercial law for at least fifteen (15) years, to the other Party who shall select the mediator from the list. The Parties shall split the cost of the mediator equally. The Parties agree that the period of mediation shall toll any otherwise applicable statute of limitations. However, nothing in this clause shall preclude any Party from commencing arbitration if said negotiations do not result in a signed written settlement agreement within sixty (60) days after written notice that amicable resolution negotiations have commenced. 10.3 Arbitration. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, including claims for tortious interference or other tortious or statutory claims arising before, during or after termination, providing only that such claim touches upon matters covered by this Agreement shall be finally settled by arbitration administered by the American Arbitration Association pursuant to the Commercial Arbitration Rules in force at the time of the commencement of the arbitration, except as modified by the specific provisions of this Agreement. It is the specific intent of the Parties that this arbitration provision is intended to be the broadest form allowed by law. 10.4 Parties to Arbitration. This agreement to arbitrate is intended to be binding upon the signatories hereto, their principals, successors, assigns, subsidiaries and affiliates. This agreement to arbitrate is also intended to include any disputes, controversy or claims against any Party's employees, agents, representatives, or outside legal counsel arising out of or relating to matters covered by this Agreement or any agreement in which this Agreement is incorporated. 10.5 Consolidation Permitted. The Parties expressly agree that any court with jurisdiction may order the consolidation of any arbitrable controversy under this Agreement with any related arbitrable controversy not arising under this Agreement, as the court may deem necessary in the interests of justice or efficiency or on such other grounds as the court may deem appropriate. 10.6 Entry of Judgment. The Parties agree that a final judgment on the arbitration award may be entered by any court having jurisdiction thereof. 10.7 Appointing Arbitrators. The American Arbitration Association shall appoint the arbitrator(s) from its Large, Complex Claims Panel. If such appointment cannot be made from the Large, Complex Claims Panel, then from its Commercial Panel. The Parties hereby agree to and acquiesce in any appointment of an arbitrator or arbitrators that may be made by such appointing authority. 10.8 Qualifications of the Arbitrator(s). The arbitrator(s) must be a lawyer, having practiced actively in the field of commercial law for at least fifteen (15) years. 10.9 Governing Substantive Law. The arbitrator(s) shall determine the rights and obligations of the Parties according to the substantive laws of the State of Texas (excluding conflicts of law principles) as though acting as a court of the State of Texas. 10.10 Governing Arbitration Law. The law applicable to the validity of the arbitration clause, the conduct of the arbitration, including any resort to a court for provisional remedies, the enforcement of any award and any other question of arbitration law or procedure shall be the Federal Arbitration Act. 10.11 Governing Convention. The Parties elect to have the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958 (instead of the Inter-American New York Convention on International Commercial Arbitration of August 15, 1990) govern any and all disputes that may be the subject of arbitration pursuant to this Agreement. 10.12 Preliminary Issues of Law. The arbitrator(s) shall hear and determine any preliminary issue of law asserted by a Party to be dispositive of any claim, in whole or part, in the manner of a court hearing a motion to dismiss for failure to state a claim or for summary judgment, pursuant to such terms and procedures as the arbitrator(s) deems appropriate. 10.13 Confidentiality. The Parties and the arbitrator(s) shall treat all aspects of the arbitration proceedings, including without limitation discovery, testimony and other evidence, briefs and the award, as strictly confidential. Further, except as may be required by law, neither Party nor the arbitrator(s) may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties. 10.14 Place of Arbitration. The seat of arbitration shall be Houston, Texas, USA. 10.15 Language. The arbitration shall be conducted in the English language. All submissions shall be made in English or with an English translation. Witnesses may provide testimony in a language other than English, provided that a simultaneous English translation is provided. Each Party shall bear its own translation costs. 10.16 Punitive Damages Prohibited. The Parties hereby waive any claim to any damages in the nature of punitive, exemplary, or statutory damages in excess of compensatory damages, or any form of damages in excess of compensatory damages, and the arbitrator(s) is/are specially divested of any power to award any damages in the nature of punitive, exemplary, or statutory damages in excess of compensatory damages, or any form of damages in excess of compensatory damages. 10.17 Costs. The Party prevailing on substantially all of its claims shall be entitled to recover its costs, including attorneys' fees, for the arbitration proceedings, as well as for any ancillary proceeding, including a proceeding to compel or enjoin arbitration, to request interim measures or to confirm or set aside an award. 10.18 Survival. The provisions of this Section 10 shall survive expiration or termination of this Agreement. 11. ADDRESSES 11.1 All payments shall be made payable to Baylor College of Medicine and shall be sent to the lockbox address below, and shall reference the applicable BLG numbers listed on the front page of the Agreement BAYLOR Tax ID #: 74-1613878 Baylor College of Medicine Licensing Group P.O. Box 203710 Houston, TX 77216-3710 Telephone No. 713-798-6821 Facsimile No. 713-798-1252 E-Mail  HYPERLINK "mailto:ota@bcm.tmc.edu" blg@bcm.tmc.edu 11.2 For questions about payments, BAYLOR can contact LICENSEE at the address below: Title Name Address Telephone No. _______ Facsimile No. _______ E-Mail _______ 11.3 All notices, reports or other communication pursuant to this Agreement shall be sent to such Party via (i) United States Postal Service postage prepaid, (ii) overnight courier, or (iii) facsimile transmission, addressed to it at its address set forth below or as it shall designate by written notice given to the other Party. Notice shall be sufficiently made, or given and received (a) on the date of mailing or (b) when a facsimile printer reflects transmission. In the case of BAYLOR: Patrick Turley Associate General Counsel Baylor College of Medicine One Baylor Plaza, BCM210-600D Houston, TX 77030 Telephone No. 713-798-6821 Facsimile No. 713-798-1252 E-Mail  HYPERLINK "mailto:ota@bcm.tmc.edu" blg@bcm.tmc.edu In the case of LICENSEE: Title Name Address Telephone No. _______ Facsimile No. _______ E-Mail _______ 11.4 Each such report, notice or other communication shall include the applicable OTA numbers listed on the front page of the Agreement. 12. INDEMNITY & WARRANTIES 12.1 Indemnity. (i) Each Party shall notify the other of any claim, lawsuit or other proceeding related to the Confidential Information, MATERIALS OR Licensed Code. LICENSEE agrees that it will defend, indemnify and hold harmless BAYLOR, its faculty members, scientists, researchers, employees, sTUDENTS, officers, trustees and agents and each of them (the Indemnified Parties), from and against any and all claims, causes of action, lawsuits or other proceedings (the bAYLOR Claims) filed or otherwise instituted against any of the Indemnified Parties related directly or indirectly to or arising out of the design, process, manufacture or use by any person or party of the Confidential Information, MATERIALS OR Licensed Code or any other embodiment of the Confidential Information, MATERIALS OR Licensed Code even though such bAYLOR Claims and the costs (including, but not limited to, the payment of all reasonable attorneys' fees and costs of litigation or other defense) related thereto result in whole or in part from the negligence of any of the Indemnified Parties or are based upon doctrines of strict liability or product liability; provided, however, that such indemnity shall not apply to any bAYLOR Claims arising from the gross negligence or intentional misconduct of any Indemnified Party. LICENSEE will also assume responsibility for all costs and expenses related to such bAYLOR Claims for which it is obligated to indemnify the Indemnified Parties pursuant to this Paragraph 12.1, including, but not limited to, the payment of all reasonable attorneys' fees and costs of litigation or other defense. (ii) licensee further agrees not to settle any Claim against an IndemniFIED Party without the IndemniFIED Partys written consent which consent shall not be unreasonably withheld. licensee further agrees to keep THE IndemniFIED Parties fully apprised of the baylor claims. 12.2 Disclaimer of Warranty. BAYLOR makes no warranties or representations, express or implied, including, but not limited to, warranties of fitness or merchantability, regarding OR WITH RESPECT TO the Confidential Information, MATERIALS OR Licensed Code. BAYLOR makes no warranties or representations, express or implied, of the patentability or copyrightability of any of the Confidential Information, MATERIALS OR Licensed Code or of the enforceability of any patents or copyrights issuing thereupon, if any, or that the Confidential Information, MATERIALS OR Licensed Code ARE OR SHALL BE free from infringement of any patent, copyright or other rights OF THIRD PARTIES. BAYLOR makes no warranties or representations, express or implied, THAT THE Confidential Information, MATERIALS OR Licensed Code SATISFY REGULATORY REQUIREMENTS. LICENSEE acknowledges that the Confidential Information, MATERIALS AND Licensed Code are being licensed AS IS. BAYLOR has not tested the Licensed Code for viruses or other defects nor has BAYLOR completed testing the Licensed Code. Nothing in this Agreement shall be construed as conferring by implication, estoppel or otherwise any license or rights under any patents of BAYLOR. 13. CONFIDENTIALITY 13.1 Scope. LICENSEE shall not, directly or indirectly, divulge or reveal to any person or entity the Confidential Information of BAYLOR without BAYLORs prior written consent or use such Confidential Information except as permitted hereunder. LICENSEE shall maintain the Confidential Information, Materials and Licensed Code in strictest confidence and use the same only in accordance with this Agreement. Employees, agents or subcontractors of LICENSEE shall be given access to the Confidential Information only on a legitimate need to know basis and after agreeing to be bound in writing to not divulge or reveal the Confidential Information. The public disclosure with the permission of BAYLOR of any one component of that which was identified as or constituted the Confidential Information of BAYLOR shall not prevent the other components from retaining their status as Confidential Information and the property of BAYLOR. Confidential Information shall include any and all information that is produced or results from the disclosure of Confidential Information by BAYLOR to LICENSEE during the course of the relationship that is the subject of this Agreement. 13.2 Exclusion. Such obligation of confidentiality shall not apply to information which LICENSEE can demonstrate: (i) was at the time of disclosure in the public domain; (ii) has come into the public domain after disclosure through no fault of LICENSEE; (iii) was known to LICENSEE prior to disclosure thereof by BAYLOR; (iv) was lawfully disclosed to LICENSEE by a third party which was not under an obligation of confidence to BAYLOR with respect thereto; (v) LICENSEE was compelled to disclose by law or legal process; or (vi) was approved for public release by prior written permission of BAYLOR. 13.3 Court Order. LICENSEE may make disclosures of Confidential Information required by a Court Order, provided LICENSEE first gives a timely opportunity to BAYLOR to participate in the proceeding to the extent that the proceeding permits such participation. 14. ADDITIONAL PROVISIONS 14.1 Use of BAYLOR Name. LICENSEE agrees that it shall not use in any way the name of "Baylor College of Medicine" or any logotypes or symbols associated with BAYLOR or the names of any of the scientists or other researchers at BAYLOR without the prior written consent of BAYLOR. 14.2 BAYLOR's Disclaimers. Neither BAYLOR, nor any of its faculty members, scientists, researchers, employees, students, officers, trustees or agents assume any responsibility for the use of the Confidential Information, Materials or Licensed Code by LICENSEE. 14.3 Independent Contractors. The Parties hereby acknowledge and agree that each is an independent contractor and that neither Party shall be considered to be the agent, representative, master or servant of the other Party for any purpose whatsoever, and that neither Party has any authority to enter into a contract, to assume any obligation or to give warranties or representations on behalf of the other Party. Nothing in this relationship shall be construed to create a relationship of joint venture, partnership, fiduciary or other similar relationship between the Parties. 14.4 Limitation of Damages. BAYLOR shall not be liable for any monetary damages whatsoever with respect to LICENSEEs use of the Confidential Information, Materials or Licensed Code nor shall BAYLOR be liable for any special, indirect, incidental or consequential damages arising out of or related to this Agreement, even if BAYLOR is advised of such damages. 14.5 Defense of Infringement Action. BAYLOR shall not be liable for any losses incurred as the result of an action for infringement brought against LICENSEE as the result of LICENSEEs exercise of any right granted under this Agreement. The decision to defend or not defend shall be in LICENSEEs sole discretion. 14.6 Non-Waiver. The parties covenant and agree that if a Party fails or neglects for any reason to take advantage of any of the terms provided for the termination of this Agreement or if a Party, having the right to declare this Agreement terminated, shall fail to do so, any such failure or neglect by such Party shall not be a waiver or be deemed or be construed to be a waiver of any cause for the termination of this Agreement subsequently arising, or as a waiver of any of the terms, covenants or conditions of this Agreement or of the performance thereof. None of the terms, covenants and conditions of this Agreement may be waived by a Party except by its written consent. 14.7 Reformation. The Parties hereby agree that neither Party intends to violate any public policy, statutory or common law, rule, regulation, treaty or decision of any government agency or executive body thereof of any country or community or association of countries, and that if any word, sentence, paragraph or clause or combination thereof of this Agreement is found, by a court or executive body with judicial powers having jurisdiction over this Agreement or any of the Parties hereto, in a final, unappealable order to be in violation of any such provision in any country or community or association of countries, such words, sentences, paragraphs or clauses or combination shall be inoperative in such country or community or association of countries, and the remainder of this Agreement shall remain binding upon the Parties hereto. In lieu of such inoperative words, sentences, paragraphs or clauses, or combination of clauses, there will be added automatically as part of this Agreement, a valid, enforceable and operative provision as close to the original language as may be possible which preserves the economic benefits to the Parties. 14.8 Force Majeure. No liability hereunder shall result to a Party by reason of delay in performance caused by force majeure, that is circumstances beyond the reasonable control of the Party, including, without limitation, acts of God, fire, flood, war, terrorism, civil unrest, labor unrest, or shortage of or inability to obtain material or equipment. 14.9 Entire Agreement. The terms and conditions herein constitute the entire agreement between the Parties and shall supersede all previous agreements, either oral or written, between the Parties hereto with respect to the subject matter hereof. No agreement of understanding bearing on this Agreement shall be binding upon either Party hereto unless it shall be in writing and signed by the duly authorized officer or representative of each of the Parties and shall expressly refer to this Agreement. IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement in multiple originals by their duly authorized officers and representatives on the respective dates shown below, but effective as of the Agreement Date. LICENSEE BAYLOR COLLEGE OF MEDICINE Name: ____________________ Name: ______________________ Cyndi M. Baily Title: _____________________ Title: Senior Vice President & General Counsel Date: _____________________ Date: _______________________ 1/3/08 LICENSEE BLG # Appendix 1 Description of Licensed Code Appendix 2 Description of Third Party Code     Draft. For Discussion Purposes Only. 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