beilstein information systems license agreement- … · $2,500 one-time fee (usd) based on the...

BEILSTEIN INFORMATION SYSTEMS LICENSE AGREEMENT-SUBSCRIPTION SERVICE

“Addendum A“ to Minerva Master License AgreementDivision-I Institution

1. Agreement

This Addendum to the Minerva Master License Agreement (“Addendum”) by and betweenBeilstein Information Systems, Inc. and the University of Wisconsin at Madison, datedSeptember 19, 1996, is entered into this 24 day of ‘February , 1998, between

, a University Library, located in Cambridge, ~MIT T4~4..

U.S.A. (“Licensee/Minerva Licensee”), and Beilstein Information Systems, Inc., aDelaware corporation, having its place of business at 14600 Catalina Street, San Leandro,California, 94577 (“Beilstein”).

2. Overview

CrossFire Minerva has been productized as the offering available jointly from BeilsteinInformation Systems, Inc. and the University of Wisconsin at Madison to satisfj aconsortium level access mechanism to the CrossFire System and the related Beilstein organicand Gmelin inorganic databases. The consortium will consist of a minimum of 50 memberuniversities within the U.S., exclusive of the existing consortium of the Committee OnInstitutional Cooperation (CIC) participants.

3. Membership

3.1 Membership is divided into two separate groups, designated as follows:

Tier 1: Those universities offering a Ph.D. in Chemistry

Tier 2: Those universities offering only a Master and Bachelors degree inChemistry.

3.2 Membership is available to all universities and colleges within in NorthAmerica. Should the minimum of 50 non-CIC participants not be attained byDecember 31, 1997, Beilstein reserves the right to discontinue CrossFire-Minerva, or renegotiate membership fees.

4. Access

By virtue of signing this Addendum, Licensee/Minerva Licensee is granted full access to theCrossFire System Database(s) as described in Sections 1.2 and 1.3 of the Master LicenseAgreement. Said access can be via any agreed upon communication channel includingInterNet access, modem access or direct dial up. The details of the connection will beworked out directly between Minerva Licensee and University of Wisconsin at Madison(herein referred to as “Sponsor”).

5. Responsibilities of Licensee

5.1 By signing this Addendum, Licensee acknowledges that they have read theMinerva Master License Agreement and Exhibit A to that Agreement andunderstand all provisions of that agreement as they relate to Licensee andMinerva Licensee.

5.2 Minerva Licensee acknowledges that the specific provisions of theMinerva License Agreement as listed below apply to this AddendumAgreement and are binding upon the Licensee. These provisions are asfollows:

- ARTICLE 3: OBLIGATIONS OF LICENSEE (except Article 3.5)- ARTICLE 5:- ARTICLE 7:- ARTICLE 8:

- ARTICLE 9:- ARTICLE 10:

- ARTICLE 11:- ARTICLE 12:

-’ARTICLE 13:- ARTICLE 14:- ARTICLE 15:- ARTICLE 17:- ARTICLE 18:

FEESLIMITATION OF LIABILITYPATENT. TRADEMARK AND COPYRIGHTINDEMNIFICATIONASSIGNMENTTERM AND TERMINATION / RETURN OFLICENSED MATERIALTAXESFORCE MAJEUREGOVERNING LAWSEVERABILITYRESERVATION OF RIGHTSENTIRE AGREEMENTAMENDMENT

6. Responsibilities of Beilstein

For purposes of this Addendum Agreement, Beilstein agrees to adhere to all responsibilitiesas outlined in the Master License Agreement.

7. Product Option

The product offerings for each Division-I member academic institution are as follows.Please designate your requirements by checking the appropriate box next to the productoffered. All pricing options reflect an annual license payment:

1) ~ CrossFireplusReactions/Abstracts Database --$23,000 (USD)

2) ❑ CrossFireplusReactions Database --$20,000 (USD)

3) ❑ Gmelin Database --$13,350 (USD)

4) ❑ CrossFire Plus Reactions/Abstracts and Gmelin Database --$36,350 (USD)

5) ❑ CrossFireplusReactions and Gmelin Database --$33,350 (USD)

2

6) ❑ Optional: Autonom Site License for Minerva in addition to one of the above --$2,500 one-time fee (USD)

Based on the above selections, it is my understanding that I as Licensee/Minerva Licenseewill be billed in the amount of $+~ (USD) (please calculate amount toverifi understanding) on an annual basis and that payment will be due 30 days subsequent tothe receipt of the Beilstein invoice. In addition, Minerva Licensee acknowledges that, due tonon payment of above fees, the Sponsor has the right to discontinue access to the CrossFireDatabase(s) 30 days after Minerva Licensee has

8. Notices and Invoices

Notic=: ~MIT Libraries, Room 14E-21OA77 Massachusetts AvenueCambridge, MA 02139-4307

been notified of nonpayment of fees.

Invoices: MIT Libraries

Serials & Journals, Room 14E-21O77 Massachusetts AvenueCambridge, MA 02139-4307

9. Technical & Administrative ContactsEric Celeste or

Te~h~l~~lcOn~aCtEllen DuranceauAdministrative CmactEllen Duranceau

efc@mit .edu

Phonebll 253 7562 Email efinnie@mit. eduPhone same Email same

10. TCP / 1P Domain Range

Specify the 1P Domain Range(s) for desktop clients which will be accessing CrossFire-Minerva: 18.*.*.*

128.52. *.*129.55. *.*

Any physical site(s) of Minerva Licensee may be granted access

192.52 .65.*192.52 .61.*

to the Licensed Material asprovided herein. Written notification by Minerva Licensee to Beilstein is required to makeany changes to 1P domain ranges for such site(s).

11. Other Agreements or Amendments to Master Minerva License Agreement:

11.1 Article 3.3 of the Master License Agreement is amended as follows:

9.-.. .~1

e

Sentence number 6: “Licensee shall use reasonable efforts todeny access to the LicenseMaterial or any part thereof by persons whom are not Authorized Users, are not located onthe designated Site(s) without the prior written content of Beilstein.”

.

11.2 Article 3.9 of the Master License Agreement is amended as follows:

“The Licensee agrees to make reasonable efforts to delete all Licensed Materialincorporated onto data storage media prior to any transfer of same.”

11.3 Articles 3.6, 3.8, Exhibit A, Section 10 of the Master License Agreement is amendedas follows:

“All Use of the Licensed Material is governed by the requirements and provisions set forth inSection 1.7 of the Master License Agreement. In addition, Licensee will make reasonableefforts to ensure that the following Notice of Copyright, incorporated by Beilstein into theirproduct, is not removed or obscured during use: [Licensee shall preserve and retain all Noticesof Copyright incorporated in the Licensed Material. “Copyright 1995, 1996, 1997 by BeiMeinInformationssysteme GmbH and CD&S GmbH all rights reserved. No part of thisdatabase may be reproduced in any form or by any electronic or mechanical means,

including the use of information storage and retrieval systems, without permission, inwriting, j$-om the copyrighl owner. “]. Beilstein recognizes that regardless of their owncopyright statement, use of their product is governed by US copyright law and the fair useprinciples specified there in Section 107 of Public Law 94-553 .“

12. Copyright Statement:

Licenseeshall preserve and retain all Notices of Copyright incorporated in the LicensedMaterial. Copyright 1995, 1996, 1997 by Beil.stein Informationssysteme GmbH andCD&S GmbH ail righti reserved. No part of this database may be reproduced in any

form or by any electronic or mechanical means, including the use of information storageand retrieval ~stems, without permission, in writing, from the copyright owner. ”

IN WITNESS WHEREOF, the parties hereto have caused this Addendum License to beexecuted by their duly authorized representatives as of the date set forth in the openingparagraph of this License. M

‘E’’s’?$+fiy-BYNAME : Ann J. Wdlpert ‘y:~-N/jMJ2: k ~~ fit.: ‘t’: ~. .~

TITLE: Director of Libraries TITLE:

DATE: Februarv 24, 1998 DATE: ;c~.[; {.7

4

BEILSTE~ INFORMATION SYSTEMS LICENSE AGREEMENT-SUBSCRIPTION SERVICE

lkL4STER LICENSE AGREEMENT - MINER VA

This Beilstein Information Systems License Agreement-Subscription Service (“License”)is entered into this Iqthday of Sept. ,1996,between the University of Wisconsin atMadison, having its place of business at 728 State Street, Madison, Wisconsin, 53706-1494 U.S.A. (“Licensee”), and Beilstein Information Systems, Inc., a Delawarecorporation, having its place of business at 15 Inverness Way East, Englewood, Colorado80112 (“Beilstein”).

WHEREAS, Beilstein is in the business of developing, producing and licensing chemicaldatabases and related software products, referred to and defined more particularly in&ticle 1.1 as the “Licensed Material;” and

WHEREAS, Licensee wishes to obtain from Beilstein the right to license and use theLicensed Material, and Beilstein wishes to grant the within License to Licensee on theterms set forth herein.

NOW THEREFORE, in consideration of the mutual promises, covenants, agreements,representations and warranties contained herein, the parties agree as follows:

ARTICLE 1: DEFINITIONS

1.0 For the purposes of this License, the following definitions shall apply:

1.1 “Licensed Material” shall mean some or all of the following: the electronicinformation and any related Electronic Data Processing ( EDP ) components, servicesand scheduled parts thereof, as well as the Database; the Software; theDocumentation; the UI_Jall as herein defined; and all other information and.ryatenal. movl~ed by Beilstein to Licensee, as described m the Additional LicenseProvisions attached hereto as “Exhibit A.” Licensed Material shall also include allmaterials related to the foregoing which are necessary to process the Database withinthe fhrnework of the database systems, and any independently licensed software

programs supplied by Beilstein, in object code form only, and all documentation andmaterials necessarily incidental thereto. The Licensed Material shall not, however,include any source code or New Products as defined herein.

1.2 “Crossfire System Database(s)” shall mean Beilstein’s proprietary machine-readabledatabases of the chemical structures of compounds, including such fh.rther daa factsor information as may be procured by Beilstein, and licensed to Licensee, which inwhole or in part may be procured from generally accessible sources (includingwithout limitation literature, patents, and similar sources), and which are hereafter

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compiled and processed by Beilstein, accordhg to its own techniques and proceduresas the Crossfire System Database(s).

1.3 “Gmelin Database(s) shall mean Gmelin’s proprietary machine readable databases of

N“,wM

the chemical structures of compounds offered under the “Crossfire” software,including such tier da~ facts or information as may be procured by Gmelin andlicensed to Licensee, which in whole or in part maybe procured from generallyaccessible sources and offered to Licensee by Beilstein as an authorized providerthrough Gmelin. For the purposes herein, the Gmelin Database shall be considered aportion of the Crossfire Systems Database(s) and will not subsequent y be referred todirectly.

1.4 “Client-Semer System” ( CSS ) shall mean the Licensee’s hardware and operatingsoftware set forth in the Additional License Provisions for a computer network in anelectronically linked configuration in which one or more users have common accessto the Software or the Crossf~e System Database(s) (or both) located on the CSS or acompatible hardware environment of Licensee consisting of the respective LAN orserver units, related software, network and any related components located atLicensee’s facility as specifically set forth in the Additional License Provisions. TheCSS shall provide ~dxr of separateworkstations or concurrently used comDuters connected in any manner to the CSS(&llectively, the “Seats”), and for the location or locations (“Sites”) consisting ot aCSS and one or more Seats, all_Is set forth in the Additional License Provisions. Seealso @icle 3.5 which fi.uther defines Licensees n ghts With regard to CSS.

1.5 “Additional License Provisions” shall refer to the Additional License Provisionsattached hereto and incorporated herein, as “Exlu“bit A, “ which shall include certain

provisions applicable to this specific License granted to Licensee. The AdditionalLicense Provisions may include, among other things, a description of theSpecifications of the Licensed Material, a description of the Crossfire SystemDatabase(s), a description of the Licensee’s CSS, the number of Licensee’s Seats, theLicensee’s Site(s), a description of all fees payable by Licensee, the BeilsteinCopp-ight Statement, any specific term for the written License, any Beilstein training,the delivery date of the Licensed Material (“Delivery Date”) and such other termsadopted by the parties as may be set forth in or attached to such Additional LicenseProvisions, all of the provisions of which are hereby incorporated herein and made apart hereof. In the event of a conflict between the terms of this License and theAdditional License Provisions, the provisions of this License shall prevail.

1.6 “Documentation” shall mean all operating instructions, user manuals, additionalinformation and related materials in whatever form provided by Beilstein to supportthe Use of the Licensed Material. Documentation may also include the printed versionof the Beilstein Handbook of Organic Chemistry if it is included as part of theLicensed Material pursuant to the Additional License Provisions. The right to copy

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Handbook remains subject to applicable copyright laws and the use thereof subject tothe terms hereof.

1.7 “Use” as used herein shall mean the operation and/or utilization of the LicensedMaterial by the Licensee, and Authorized Users, pursuant to the terms and conditionsof this License on the CSS for the number of Seats at the Site(s), as specificallyidentified in the Additional License Provisions, which will enable the Licensee andAuthorized Users to search, display, print, read and utilize or process the CrossfireSystem Database(s) or Licensed Material for Licensee’s internal use only, orAuthorized Users personal use. Use shall also include and is limited to: (i) the rightto produce copies for backup purposes only, (ii) the temporary operation adorutilization of the Licensed Material on substitute or backup system equipment in theevent the Licensee’s CSS or com ut tern becomes inoperable for a portion of the

. e~and(iv)thelimited

term hereof, (iii) an reasonable copying of e Licensed Material for systemmaintenance, backup, s

ti~\ “,

right to copy hrruted portions of the Licensed Material solely for ‘the purposes ofcriticism, com.rnen~ news reporting, teac&g (includin~ multiple copies for—

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classroom use), scholarslup or research. Except as contemplated by (iv) above,

4changes to or enhancements of any Licensed Material by Licensee, or any component

/?

thereof, are expressly prohibited. Access and/~us trial or commercialapplication of the information obtained from any of the Licensed Material is strictlyprohib -lted, unless agreed to otherwise in writing by both parties.

1.8 “Updates” shall mean all modifications to the Licensed Material or any componentthereof that shall be provided by Beilstein or by Gmelin through Beilstein, in its solediscretion, as maybe necessary to correct any errors or “bugs” in the Software or addor modi~ the Crossfire System Database(s). Updates shall be provided by Beilsteinto Licensee from time to time, at the sole discretion of Beilstein, free of anyadditional charge.

1.9 “New Product” shall mean any new version of the Licensed Material or any portionthereof which is defined by Beilstein as a separate product or is developed byBeilstein as a separate product and/or provides supplemented or improvedperformance of the Software or the Crossfire System Database(s) or performsfunctions that are not perfon-ned by the Licensed Material as of the date of the writtenLicense. Beilstein may, at its sole discretion, determine to develop and release a NewProduct. So long as Licensee pays all Fees provided for in Article 5, and is othenvisenot in default hereunder, New Products shall be made available to the Licensee byBeilstein for such fee as Beilstein may set from time to time. Such New Products,when and if developed and released by Beilstein, and if purchased by Licensee, shallthereafter be included as a part of the Licensed Material and be subject to the terms ofthis License, unless the parties otherwise agree in writing. Any New Products offeredby Gmelin will only be offered by Beilstein according to this agreement if Beilstein isgranted distribution rights to these products.

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1.10 “Software” shall mean all computer programs, in object code form only, and relatedEDP components and Documentation provided by Beilstein as part of the LicensedMaterial and such other programs, in object code form only, and other sofhvare asmay be described in the Additional License Provisions.

1.11 “Beilstein Customer Support” shall mean all reasonable hotline support bytelephone, telecopy, or troubleshooting, and shall include the delivery of Updates, butnot New Products unless provided for in the Additional License Provisions, a separatewritten agreement or an addendum hereto. Beilstein Customer Support will berestricted to support for chemical/data and chemicalldata content issues, softwaremalfi.mctions issues, and installation issues directly related to product problems.Support will not be provided for installation unrelated to specific product problems, theLicensee’s computer system or the Licensee’s netwrok system. Each Minerva sitewill be restricted to two designated contacts which may comespond witi BeilsteinCustomer Support semice personnel. Customer Support shall be provided for duringthe License Period defined in Exhibit A, Paragraph 4, and so long as the LicenseeFees are filly paid-up.

1.12 “Authorized Users” shall mean faculty, students, employees of, contractors to, theLicensee, and unsolicited, non-University community members which may utilize amember institution’s information resources as a public service.

1.13 “Minerva Licensee” shall mean a Minerva site participating in this Agreement, asmore clearly identified and defined in that site-specific Addendum A.

ARTICLE 2: GRANT OF LICENSE

2.1

2.2

This License shall become effective on October 1, 1996.

Subiect to the terms and conditions of this License, Beilstein grants Licensee a non-transferable, non-exclusive, terminable license for the use of the Licensed Materialonly at the designated CSS and for the Seat(s) and Site(s) all as designated in ExhibitA. In the event that the CSS shall no longer be used to operate the Software or accessthe Crossfire System Database(s), the Licensee shall be entitled to change or modi&the location of the CSS, the Seat(s), or Site(s), provided that such substitute CSS,Seat(s) or Site(s) and the location thereof shall be approved by Beilstein in writing nolater than 30 business days before such change.

2.3 The Licensee shall also be entitled to Use the Documentation and other supplieddocuments and materials pertaining to the Licensed Material subject to the conditionsherein.

2.4 All rights with respect to any or all of the Licensed Material including all copies of allthe Crossfire System Database(s) and Software as permitted herein, and anyderivative products utilizing any or all of the Licensed Material shall remain at all


times the property of Beilstein unless otherwise provided for in Exhibit A or unlessthe parties agree otherwise in writing.

2.5 Licensee shall have the right to independently develop, or have developed and use,software which interfaces with or connects to the Sofiware and/or the CrossfireSystem Database(s), provided there is no modification to the Licensed Materialwithout Beilstein’s prior written approval. Such independently developed softwareshall remain the proprietary property of the Licensee. Licensee shall be solelyresponsible for the proper fimctioning of any interface with the Licensed Material.

2.6 In the event that Beilstein provides Updates or New Products to Licensee which arenot the subject of a separate agreement such Updates or New Products shall bedeemed part of the Licensed Material and will be provided to Licensee subject to theterms arid conditions of this License Agreement.

$ ARTICLE 3: OBLIGATIONS OF LICENSEE

( 3.1 Licensee acknowledges and agrees that the Licensed Material and each and everycomponent thereof are valuable assets of Beilstein and are considered the exclusiveproprietary information and property of Beilstein.

3.2 Licensee acknowledges and agrees that some or all of the Licensed Material maybeprotected by United States copyright laws, foreign copyright laws or internationalcopyright treaty provisions; that the Licensed Material has been made available toLicensee exclusively through Beilstein; and that notwithstanding any protection of theLicensed Material afforded pursuant to such copyright laws or copyright treaties, therestrictions, limitations and obligations contained herein shall be binding on Licensee.

3.3 Licensee agrees that it shall treat the Licensed Material with thes

$-

with which it would treat its own proprietary information. W“ o t li iting tforegoing, Licensee specifically hereby acknowledges that th k- /

contains cotildential information, including Crossfue System atabase(s) and theobject code and other trade secrets of Beilstein. Licensee shall make reasonable.efforts to prevent disclosure, modification or improper use of such information.=e shall make reasonable efforts to inform all Authorized Users whom Licensee /allows to Use the Licensed Materials of these requirements, primarily by display ofthe Beilstein copyright statement upon access to any CrossFire database. Licenseewill Dase access controls on mtemet address of Minerva users until individual

o

password access controls are available and inter● andeach Minerva site. Licensee shall use

. -~=~sls,areLicensed Material or any part thereof by penot. located on the designated Site(s) mthout the prior wmtten consent or Bt%Meht.The Licensee agrees that it shall not give any third party other than Authorized Usersaccess to any of the Licensed Material or any part thereof, or any copies of anycomponent thereof, except where such third parties are contractually entitled to such

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access under written agreement with Beilstein, and such transfer is made with theprior written consent of Beilstein.

3.4 Except as specifically outlined in Section 3.5 below and in the Addendums to theLicense Agreement, the Licensee shall not have the right to directly or indirectlymarket, sell, sublease, assi~ pledge, sublicense or otherwise Use the LicensedMaterial or any component thereof to receive, or directly or indirectly to derive, anyeconomic benefit from the Licensed Material or any component thereof, exceptpursuant to prior w-itten consent signed by Beilstein. Licensee, either alone or inconjunction with others, shall not transfer, convey or grant to any other person orentity of any kind any right relating to the Licensed Material or any componentthereof or this License, including the right to use or ownership of the LicensedMaterial or any component thereof with or without consideration without the priorwritten consent of Beilstein. Specifically, and without limiting the foregoing,Licensee shall not make any transfer, conveyance or grant of any interest in or Use ofthe Licensed Material or any component thereof either alone or in combination withany other software or daq whether or not such software or data is developed or usedin whole or in part by Licensee.

3.5 For purposes of this License Agreement, Licensee is granted the right by Beilstein tomarket the Minerva License to any institution which meet the criteria as defined in theAddendurn Contract Section 2.1. In addition, Licensee has the right to make its CSS

u+-environment available to member institutions via any agreed upon means ofcommunication for use of the Crossfire Database(s) to any Minerva member.

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3.6 Except as expressly ~d specifically provided in Article 1.7, Licensee shall have no Mright to use or copy any Licensed Maten aI or any other material, whether written,electronic or otherwise, which is provided to Licensee by Beilstein. Beilstein must beinformed in writing, however, if the original or a copy of the Licensed Material or anycomponent thereof is to be kept in a location other than the agreed upon Site(s). The

~rinl wpplied in printed form may not be copied, unless specificall~permitted by Beilstein in writing in a separate agreement, or unless otherwisespecified in Exhibit A except for backup purposes.

3.7 Use of the Licensed Material is limited to the Use of the Licensed Material as set sforth herein. Except as expressly and specifically provided for in Article 1.7, Licenseeshall not, in any way, attempt to modify. alter, adapt. merize, decomDile, di~ e

reverse engineer, modifi, reproduce in magnetic or graphic form, or otherwise Usethe Licensed M atenal, m any manner inconsistent with applicable laws or with the

terms of this License or Beilstein’s ownership thereof, without the written consent ofBeilstein.

G3.8 Licensee sh 1vlslbly incorporate Beilstein Copyright Statement” as set fotih in

the Additiona lC wslons into all media using the Licensed Material and Y’

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n and protect all existing Beilstein copyright statements and other Beilsteinproprietary mtormation.

3.9 The Licensee agrees to delete all Licensed Material incorporated onto data storage P++media prior to any transfer of same.

4

3.10 The limitations on disclosure of the Licensed Material or a component thereof, ascontained in Article 3.3, but not the Use of the Licensed Material or a componentthereof of this Aticle shall not extend to any item which:

(i) is already known to the receiving party or independently developed by it;

(ii) is publicly available or becomes publicly available without a breach ofagreement or duty by the disclosing or receiving party; or

(iii) is rightfully received by the receiving party from third parties.

3.11 The parties hereto agree that, in addition to all other remedies that maybe providedto other party by virtue of the laws of the United States and any jurisdiction thereof, inthe event of a breach or a threatened breach of this License or any of the provisionshereof by either party, the non-breaching party shall be entitled to apply to a court ofcompetent jurisdiction for equitable relief including a temporary restrammg order,injunction or other equitable remedy as may be appropriate to enforce the provisions ofthis License and to protect the confidential or proprietary information, trade secrets,copyrights and/or patents that Beilstein may have.

3.12 The provisions of this Article 3 and the enforceability thereof shall survive thetermination or expiration of this License.

ARTICLE 4: OBLIGATIONS OF BEILSTEIN

4.1 Beilstein represents and warrants that it has all propriet~ riehts to the Licensed

Material, that the Licensed Material is not subject to any liens, claims, conflictingagreements, or other encumbrances which may impact the rights granted to Licenseepursuant to this License and that, in all other respects, Beilstein has the right to grantthe License set forth herein. Beilstein fim-therwarrants that the License granted to theLicensee herein will not violate or conflict with any relevant intellectual prope@rights of any third persons.

4.2 Beilstein represents and warrants that it has a fully executed distributorship agreementwith Gmelin and has fill rights to extend the offer of Grnelin under Crossfire toLicensee and to enter into this License Agreement.

4.3 Subject to the provisions of Aticle 7, Beilstein wamnts to the Licensee that, as ofthe receipt of the Licensed Material by the Licensee or as of the date of the Beilstein


Installation if Beilstein installs the Software and the Crossfire System Database(s) andfor the period of the License, the Software and the Crossfire System Database(s)@eluded in the Licensed Material will fimc~ly in ~

. .

Be~ in the then prevailing user manual. If suchSoftware and/or the Crossfire System Database(s) evidently and ~ ails tosubstantially fimction in such manner, and the Licensee provides Beilstein withwrl~ reasonable evidence of such ftilu.res during the Contractperiod, then ~ellstem will attempt to correct such defec$ or provide the Licensee withan alternative solution which enables the Licensee to use the Licensed Materialpursuant to this License. If Beilstein cannot accomplish such correction or providesuch alternative solution within a reasonable period, then both parties shall have theright, within thirty (30) days of the Licensee’s discovery of the failure of Beilstein’sattempts to correct such defect or provide alternative solutions, to terminate thisLicensee Agreement, and Beilstein will refund to the Licensee a pro rata portion ofthe Fees as set forth in reticle 10.4.

/KRTICLE 5: FEES

5.1

[

The license fee, as set forth in the Additional License Provisions (Exhibit A), shallinclude, as applicable, the ~ s (“h,itial License Fee”); the i__tion

f~if my, the initial annu al maintenance fees (“Annual Maintenance Fee”), if any;the initial annual Customer Support fees (“Customer SuPpo rt Fees”), if any; and thecurrent annual fees for Updates, if any, as may be modified from time to time(“Update Fee”), each as more fully set forth in the Additional License Provisions.Beilstein’s current periodic fees, including the hnual Fee, Annual Maintenance Fees,Updates Fee, Customer SUDDO rt Fee, (generally, “Periodic Fees”) , shall be as set foflhin the Additional License Provisions and together with the Initial License Fee shall becollectively referred to as the (“Fee or Fees”). With respect to any such Fee whichmay be due, any right of offset by Licensee is excluded. Beilstein may, at least thirtydays before the end of any anniversary of this License, revise the amount and natureof its Periodic Fees, provided Beilstein provides Licensee with ninety (90) dayswritten notice of any increase in any existing Periodic Fee or any additional PeriodicFees. Existing Periodic Fee increases (beginning January 1, 1998), on a “per-Minervasite basis” shall not exceed the ann d average increase in the Consumer Price Index

maintained by the U.S. Department of Labor.

5.2 Delivery of the Licensed Material shall be as set forth in the Additional LicenseProvisions.

5.3 Licensee will pay the Initial License Fee to Beilstein within thirty (30) days ofdelivery of the Licensed Material or thirty (30) days of receipt of an invoice fromBeilstein for the Licensed Material, whichever is later. Periodic Fees shall be payablewithin thirty (30) days of being invoiced by Beilstein. All fees shall be paid toBeilstein by Licensee in United States Dollars.

L-’’”-

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5.4 In consideration of the payment by the Licensee of the Initial License Fee as definedin Article 5.1 above, Beilstein shall provide the following to Licensee if not otherwiseagreed:

(a) One (1) complete set of all components of the Licensed MateriaJ as defined inthe Additional License Provisions;

(b) Warranty services in accordance with Article 4.2 above; and

Beilstein Customer Support as set forth in Article 1.11, free of charge, as requested byLicensee.

5.5 Subsequent to the period during which Beilstein shall perform Customer Support asprovided for in Article 5.4 above, and upon payment of Periodic Fees as provided forin the Additional License Provisions, Beilstein shall perform Customer Support bytelephone, telecopy or e-mail as Licensee shall reasonably require. On-site CustomerService or troubleshooting is offered by Beilstein at its then applicable semice ratesif not agreed in writing otherwise.

ARTICLE 6: DELIVERY AND INSTALLATION

6.1 In the event that Licensee gives written notice to Beilstein that it elects to haveBeilstein install the Software and the Crossfire System Database(s) on the CSS(“Beilstein Installation”), Beilstein or its agent or representative shall perform theinstallation within 45 days of receiving such notice, at Licensee’s Site as set forth inthe Additional License Provisions. All actual costs and expenses incurred byBeilstein for installing the Software and the Crossfire System Database(s) shall bepaid by Licensee, including all reasonable travel expenses actually inc~ed. Licenseeshall provide Beilstein such assistance as Beilstein may reasonably require to installthe Software and the Crossfire System Database(s) on the CSS.

6.2 In the event that Licensee does not elect to have Beilstein install the Sofisvare and theCrossfire System Database(s), on or before the Delivery Date set forth in theAdditional License Provisions, Beilstein shall deliver the Licensed Material by acommon carrier designated by Beilstein at the reasonable expense of Licenseeactually incurred by Beilstein. The shipped Licensed Product shall be insured andshall be payable to Beilstein at least in the amount of the Fees paid as of the DeliveryDate by Licensee. Beilstein assumes all risk of loss and damage to the LicensedMaterial until Beilstein or the common carrier it selects has delivered the LicensedMaterial to the Licensee to the common carrier as evidenced by a receipt signed by aduly authorized employee, agent or representative of the Licensee at which time riskof loss shall pass to Licensee.

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ARTICLE 7: LIMITATION OF LIABILITY

7.1 The parties acknowledge that because of the possibility of human and mechanicalerror as well as other factors, Beilstein Crossfire System database(s) and softwaremay contain errors. Beilstein does not warrant the accuracy of the informationcontained within the Beilstein Crossfire System Database(s), or that the Licensee’suse of the Licensed Material will be uninterrupted or error free, or that the resultsobtained will satisfj the Licensee’s requirements.

7.2 Beilstein makes no representations or warranties of any kind, except as set forth inarticles 4.1., 4.2. and 4.3 above. The representations and warranties of Beilstein as setforth in articles 4.1,4.2 and 4.3 above &e made and given by Beilstein in lieu of anyand all other warranties, express or implied, including without limitation warranties ofmerchantability or fitness for particul~ purpose. The sole remedy of the licensee andthe sole liability of Beilstein for breach of warranty under this license or any otherclaimed damage or loss by licensee based on any theory whether for breach ofwarranty or otherwise shall be limited to correction of substantial deviations of the—.software indude.d in the licensed material from the titten ~cations

~iven by Beilstein for same, or, if Beilstein cannot correct or fhils to correct suchdeviations, then refund of license fees, as set forth in article 4.3. (1-al or writteninformation or advice given by Beilstein, its representatives, dealers, distributors oragents, shall not create any warranty beyond that which is expressly contained herein,and the licensee may not rely on any such information or advice.

7.3 Without limiting the provisions of article 7.1 and 7.2 above, under no circumstancesshall Beilstein or its suppliers, representatives, dealers, distributors or agents be liablefor lost profits, unrealized savings, liability for third party claims, (unless such claimsare subject to indemnity under article 8.1), or any other direct, indirect special,incidental, consequential or punitive damage for any breach by Beilstein hereunder orotherwise, even if Beilstein has been advised of the possibility of such damages.Furthermore, Beilstein shall not be liable for darnages due to alleged loss of data,whether licensee’s data or otherwise.

7.4 The Board of Regents of the University of Wisconsin System agree to provideliability protection for its officers, employees and agents while acting within thescope of their employment. The Board of Regents Mer agrees to hold harmlessBeilstein, its ofilcers, agents and emplo ~*-claims, demands, losses, costs, damages and expenses ot every kmd and descnplion—(including death~, or darnages to persons or property ansmg out of or m connection

with or occurring during the course oi h s agreement where such liablhty M to~ded— —Ie acts ot orrusslons of any of the officers, employees or

agents of the University of Wisconsin System while acting within the scope of their. .

em 1s afforded by SS.893.82 and 895.4 ~hts.

-Cotildential- 09/1 6/96

ARTICLE 8: PATENT, TIWDEMARK AND COPYRIGHT INDEMNIFICATION

8.1 Licensee will noti& Beilstein, in writing, of any third party claim asserted againstLicensee for paten~ trademark or copyright infh‘n~ement arising out of the Use of anypart of the Licensed Material by Licensee in accordan ce wtn the terms of thisLicense. Upon receipt of such notice, Beilstein shall indemnifi, defend and holdharmless Licensee to the extent such claim is based on the fault of Bellstem mth 1 /

8.2

.

respect to such claims, including the negotiation of a settlement and for settlem~nt or -compromise of the action. Licensee shall cooperate with Beilstein in such defense, ifrequested by Beilstein.

pon receipt of such notice, Licensee

resuonsibilitv of Licensee with respect to such claims.

ARTICLE 9: ASSIGNMENT

9.1 Licensee shall not have any right to assign its rights or obligations set forth in thisLicense.

ARTICLE 10: TERM AND TERMINATION / RETURN OF LICENSEDMATERIAL

10.1 Unless terminated as provided herein, or upon the expiration of a specific term if aterm is specified in the Additional License Provisions, the License created hereinshall be perpetually and automatically renewed.

10.2 Beilstein may, at its sole discretion, elect to terminate this Master LicenseAgreement by thirty (30) days prior written notice for nonpayment by Licensee of anyof the Fees set forth herein and in the Additional License Provisions, including butnot limited to the nonpayment of the Initial License Fee, the Periodic Fees and anyother fees, maintenance fees, license fees or other fees set forth in the AdditionalLicense Provisions, unless such nonpayment is cured within such 30-day period andLicensee shall not be entitled to any refund of any Fees paid.

10.3 Either party may terminate this Master License Agreement without cause upon two(2- _~ttc to the other party; provided, however, that in the eventthat L~ e without cause prior to the expiration ofthe then current annual License period set forth in the Additional License Provisions,Licensee shall not be entitled to anY refund of anY Fees paid. If Beilstein elects totermmate these License without cause prior to the end of any current annual LicensePeriod, Licensee shall be entitled to a refund of a pro rata portion,of the fees it haspaid for the year in which Beilstein so terminates as set forth in article 10.4.


10.4 In the event that any of the material terms of thisMaster License Agreement, and such bre~~hall not be cured within thirty (30)

~receiving~e other party of such breach, the non- k

e aultmg party shall have the right to immediately terminate this License after saidthirty-day cure period. IQ the event Beilstein shall terminate this License as providedfor in this Article 10.4, Licensee shall not be entitled to a refhnd of any Fees paid. In

‘the event Licensee shall terminate this License as provided for in this Article 10.4,

amount of money which shall be equal to thepro rata portion of the Fees paid for the year in which such Beilstein default occurswhich shall be determined by dividing the number of days in such year prior to theLicensees notice of default divided by 365 days. Such result shall be subtracted from100% and the difference shall be multiplied times the total Fees paid by Licensee for

dk’_

the year in which the default occurs. Such amount shall be refunded to Licensee.Such termination shall not, however, exclude any other legal or equitable rights orremedies set forth herein.

10.5 To the maximum extent permitted by law, either party may immediately terminate

10.

the Master License Agreement granted hereunder, if either party petitions forreorganization under applicable bankruptcy laws, is adjudged a bankrupt, has areceiver appointed for its business, or makes an assignment for the benefit ofcreditors.

6 Termination of this Master License Agreement shall not relieve Licensee of its ./?obligations under Article 1, 2, 3, 5 and 8.2 and shall not relieve Beilstein of its ,J\>/

obligations pursuant to Aticle 4, 5 and 8.1.

10.7 Upon termination of this Master License Agreement, for any reaso4:%$cease its Use of the Licensed Material and shall return to Beilstein, at

expense, all components of the Licensed Material other than software used ~ V””e clu - ely on icense ‘s premises, and all copi

LK

a dition, Icensee shall remove the dia for which the License is terminated fromthe computer(s) or other hardware on which it is installed and shall certifv to Beilstgin

C’

in writing that all components of the Licensed Material other than sothvare us<dexclusively on the Licensee’s premises are de-=led and all copies thereof=have

\ Jwbeen returned to Beilstein. All Licensed Material provided to Licensee by B~lstein inconnection with all components of the Licensed Material other than software usedexclusively on the Licensee’s premises shall be returned at the same time.

10.8 Beilstein may, at its sole discretion, elect to terminate the License Agreement withany Minerva Licensee upon thirty (30) days prior written notice for nonpayment bythe Minerva Licensee of any of the Fees set forth herein, in the Additional LicenseProvisions or in the Minerva Licensee-specific Addendum A, including but notlimited to the nonpayment of the Initial License Fee, the Periodic Fees and any otherfees, maintenance fees, license fees or other fees set forth in the Additional License


Provisions, unless such nonpayment is cured within such 30-day period and theMinerva Licensee shall not be entitled to any refund of any Fees paid.

10.9 Either party (Beilstein or the Minema Licensee) may terminate the LicenseAgreement without cause upon two (2) months prior written notice to the other party;provided, however, that in the event that the Minerva Licensee elects to terminate thisLicense without cause prior to the expiration of the then current annual Licenseperiod set forth in the Additional License Provisions, Minerva Licensee shall not beentitled to any refund of any Fees paid. If Beilstein elects to terminate this Licensewithout cause prior to the end of any current annual License Period, MinervaLicensee shall be entitled to a refund of a pro rata portion of the fees it h “

24the year in which Beilstein so terminates as set forth in article 10.4~ ~ti

10.10 In the event that either party (Beilstein or the Minerva Licenswith any of the material terms of this License Agreement, and such breach shall notbe cured within thirty (30) calendar days afler receiving notice from the other party ofsuch breach, the non-defaulting party shall have the right to immediately terminatethis License after said thi.rtyday cure period. In the event Beilstein shall terminate

@

&

this License as provided for in this Micle 10.4, ~ shall not beentitled to a refund of any Fees paid. In the event Minerva Licensee shall terminate J,J$

t~s License as provided for in this Article 10.4, Beilstein will refired to the Minerva ,Licensee an amount of money which shall be equal to the pro rata portion of the Fees (0’( ‘

paid for the year in which such Beilstein default occurs which shall be detenn.ined bydividing the number of days in such year pnito the Minerva Licensees notice of w.default divided by 365 days. Such result shall be subtracted from 100’% and the [difference shall be multiplied times the total Fees paid by Minerva Licensee for the v’year in which the default occurs. Such amount shall be refinded to MinervaL@see. Such termination shall not, however, exclude any other legal or equitablerights or remedies set forth herein.

10.11 To the maximum extent permitted by law, either party (Beilstein or the MinewaLicensee) may immediately terminate the License Agreement granted hereunder, ifeither party petitions for reorganization under applicable bankruptcy laws, is adjudgeda bankrupt, has a receiver appointed for its business, or makes an assignment for thebenefit of creditors.

10.12 Termination of this License Agreement shall not relieve Minerva Licensee of itsobligations under Article 1, 2, 3, 5 and 8.2 and shall not relieve Beilstein of its /’”\\

obligations pursuant to Article 4, 5 and 8.1. F

10.13 Upon termination of this License Agreemeshall cease its Use of the Licensed MaterialLicensee’s expense, all components of the License aterial (as applicable) other

than softwwe used exclusively on the Minerva Licensee’s premises, and all copiesthereof or any component. In addition, Minerva Licensee shall remove the media for


which the License is terminated horn the computer(s) or other hardware on which it isinstalled and shall certi~ to Beilstein in writing that all components of the LicensedMaterial other than software used exclusively on the Minerva Licensee’s premises arede-installed and all copies thereof have been returned to Beilstein. All LicensedMaterial provided to Minerva Licensee by Beilstein in connection with allcomponents of the Licensed Material other than software used exclusively on theMinerva Licensee’s premises shall be returned at the same time.

ARTICLE 11: TAXES

11.1 Licensee wanants and represents that it and member institutions are tax exemptorganizdions under Section 501 (c)3 of the Internal Revenue Code. Licensee’s TaxExempt ID# is 39-73-1021 K. To the extent that the Licensed Material to be providedhereunder is subject to any sales, use, rental, personal property and any other taxes,payment of said taxes is Licensee’s responsibility. Beilstein shall be liable for any andall taxes on any and all income it receives from Licensee under this License.

ARTICLE 12: FORCE MAJEURE

12.1 Neither party hereto shall be considered in default in the performance of itsobligations hereunder, except the obligation to make payments hereunder, to theextent that the performance of any such obligation is prevented or delayed by anycause, existing or fiture~hich has neither been caused nor contributed to by suchparty, and which is beyond the reasonable control of such party.

ARTICLE 13: GOVERNING LAW

[

13.1 This License shall be governed by and construed in accordance with the laws of theState of Wisconsin, including the laws of conflicts and jurisdiction.

ARTICLE 14: SEVERABILITY

14.1 If any provision of this License is found by a court of competent jurisdiction to beunenforceable or invalid, or deemed to be incomplete, then the remaining provisionsset forth in this License shall continue in full force and effect.

ARTICLE 15: RESERVATION OF RIGHTS

15.1 Neither party’s delay or failure in enforcing any of the rights or obligations set fofiin this License shall prejudice or waive the right to enforce such rights andorobligations.

-Cofildential- 09/16/96

ARTICLE 16: NOTICES:

16.1 hy notices to be given by either party to the other pursuant to this License or othercommunication shall be in writing, hand delivered or mailed to the address of therespective party by registered mail, postage prepaid at the following address:

If to Beilstein: Beilstein Information Systems, Inc.Attn: Michael Price2296 Pontiac CircleNaperville, IL 60565-3296

With a Copy to: Beilstein Informationssysteme GmbHAttn: Matthew CarterVarrentrappstrasse 40-4260486 FrankfiWMain Germany

If to Licensee: Tom SailorDirector, University PurchasingUniversity of Wisconsin-Madison202 A. W. Peterson BuildingMadison, WI 53706

With a copy to: Ken FrazierDirector, General Library System372 Memorial LibraryUniversity of Wisconsin-Madison728 State StreetMadison, WI 53706

ARTICLE 17: ENTIRE AGREEMENT

17.1 This License, including any and all exhibits, attachments and amendments thereto,contains the entire agreement between the parties relating to the subject matter hereofand supersedes all prior negotiations, correspondence and understandings between theparties, whether written or oral, relating to the subject matter hereof.

ARTICLE 18: AMENDMENT

18.1 No modifications or amendments of this License shall be binding upon either partyto this License, unless the same are in writing and signed by both parties.


IN WITNESS WHEREOF, the parties hereto have caused this License to be executed bytheir duly authorized representatives as of the date set forth in the opening paragraph ofthis License.

LICENSEE: BEILSTEIN:

BY A&/’f. l% Qz—_———

NAME: Louis A. Pitschmann NAME: Michael PriceTITLE: ~ TITLE: Senior Account ExecutiveDATE: September 19, 1996 DATE: 7-23-96


“EXHIBIT A“ TO THE BEILSTEIN LICENSE AGREEMENTSUBSCRIPTION SERVICE

ADDITIONAL LICENSE PROVISIONS TO THE MINERVA CONTRACT

1. Specifications of Licensed Material:

1.1. This License is only valid for the Beilstein Information Package, which mayconsists of the following integrated components (as specified in each MinervaLicensee’s Addendum A Agreement):

(a)

(b)

(c)

(d)

(e)

(f)

Beilstein In-house Database System (University of Wisconsin at Madisononly) consisting of:

-Beilstein Structure File with ca. 7 Mill. structures of registered chemicalcompounds;

-Beilstein Reaction File with ca. 5 Mill. structures of registeredchemical reactions; and

-Beilstein Factual CrossFire System Database(s) File under FULGOR-retrieval software.

Gmelin In-house Database System (University of Wisconsin at Madisononly) consisting ofi

-Gmelin Structure File with ca. 1 Mill. Structures of registered chemicalcompounds, and

-Beilstein Factual CrossFire System Database(s) File under FULGOR-retrieval software.

Beilstein Commander Software for structure and data retrieval;

Updates to Commander Software whenever Beilstein offers such Updates;

Related User Manuals and other Documentation (if any), which Beilsteinmay offer; and,

Updates for structure, reaction and factual files (regularly at least one or IWOtimes per year at Beilstei.n’s sole discretion) with the cument information whichBeilstein currently will obtain from its usual sources.


Further details of the description of the Licensed Material can be found in the UserManuals related to single components of the above mentioned Licensed Material.

1.2. Subject of shipment:

(a) One copy of each component 1.1.a.,1. 1.b. and 1.1f. to the University ofWisconsin at Madison.

(b) One master copy of component 1.1.Cto 1.1e., with permission to duplicate foruse within licensees organization and Site(s) (Article 2.1- LicenseAgreement).

2. Description of Systems Server and Clients:

IBM RS/6000 Serve~ IBM or compatible PC/Windows andor Macintosh clients.

3. License for the components l.1.a. to I.1.e. is granted as follows:

3.1

3.2,

Locatioflnstallation Site: University of Wisconsin at Madison728 State StreetMadison, Wisconsin 53706-1494

Numbers of Seats: Unlimited to University of Wisconsin and to all currentlyparticipating CIC Member Universities. Unlimited within respective Minervaparticipant’s defined site (see Paragraph 5.2).

4. License Period:

4.1 Initial License Period: October 1, 1996 to December 31, 1997.

4.2 Annual License Period: January 1 to December31 (or as otherwise specifiedin Paragraph 2.1 of the Minerva License Agreement).

5. Current Fees:

5.1 Initial License Fee: As agreed per Addendum A

5.2 Current hnual License Fees (in U.S.): As agreed per Addendu A

Annual License Fees are based on the number of Minema Members as establishedby the signed Addendum Agreements. The current fee schedule is as follows:

CrossFire Plus

hstltutlon TVPe. .

Reactions Gm lin Combined

+ Tier 1 $20,000 $13,;50 $33,350

-Confldential- 09/16/96

Tier 2 $10,000 $6,675 $16,675

Tier 1 institutions are defined as universities with a Ph.D. in Chemistry programand Tier 2 institutions as universities with a Masters and Bachelor degree inChemistry. Universities with mul~le sites will be considered as separa te entities,

d ‘]”s ‘Ofcmentc’ccO~a”’c-

. .iv

t K This fee schedule is in effect for a minimum of 50 Universities in addition to the

~dfl

current CIC membership. Any agreement to continue the Minerva Project with a

\ smaller number of Universities may be with the use of a revised fee schedule as

d agreed upon between Beilstein and Licensee.

For those institutions with current Beilstein Handbook subscriptions, any changewill need to be handled directly with the Licensee’s current Beilstein HandBooksupplier. For those same institutions, continuation of the Beilstein HandBooksubscription will be handled directly with the Beilstein Institut. For thoseinstitutions with Gmelin Handbook subscriptions, any continuance or change willneed to be handled directly with the Licensee’s current Gmelin supplier or withthe Gmelin Institute directly.

For Minerva members added during the term of the license agreement, all signedAddendurn A’s will be made coterminous (all will have a start and end date ofJanuary 1 and December31 for the Annual License Period). After the InitialLicense Period, Annual license fee payment will be prorated from the date theAddendum agreement is made effective and December31 based on the number ofcalendar days.

6. Current Annual Maintenance Fees:

If not otherwise agreed in this contract such fees are included in 5.2.

6.1 Current Customer Support Fee: None

6.2 Current Update Fees: included in 5.2.

6.3 Current New Product: Subject to new agreement based on Beilstein’s

then prevailing rates.

7. Training Program: Available at additional cost.

8. Use Of the CrossFire System Database(s):


8.1. Licensee reserves and shall exercise the right to disable the ability forMinerva Licensees to store remote files or user profiles on the system sewerhoused and maintained by Licensee.

9. Delivery Date: Within 30 days of execution of Agreement.

—..—.. ,

10. Copyright Statement: ----’=- Zz—-’

/ ,/10. 1.Licensee shall following Notice of Copyright.

rmationssysteme GmbH, all rightsreserved.”

-Cotildential- 09/1 6/96

beilstein information systems license agreement- … · $2,500 one-time fee (usd) based on the...

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