BACKGROUND

ETA is a software package that runs within the MATLAB® programming environment. It provides computational routines and a graphical user interface to facilitate the calculation of cell specific metabolic rates based on extracellular measurements of cell density and metabolite concentrations. Specific rates are normalized to cell number or mass and therefore enable direct comparisons to be made across experiments that are done at different cell densities. Furthermore, specific rates are required inputs for more comprehensive metabolic flux analysis (MFA) using other programs designed for that purpose. Vanderbilt seeks to advance this research and to publish and enable adoption of research codes in furtherance of its public interest mission. Distribution of research codes as a research courtesy is facilitated by licensing these codes for development and use. Development of these codes was supported, in part, by the following sponsors: the NIH National Cancer Institute (Grant R21 CA155964) and the NSF Biotechnology, Biochemical and Biomass Engineering (Grants CBET-0955251 and CBET-1067766).

DEFINITIONS

1. "Agreement" means this Non-Exclusive Software Site License Agreement.
2. "Effective Date" means the latest date upon which this Agreement is either entered into or renewed.
3. "Licensing Contact" means the individual identified on the Registration Page and who shall be responsible for administering this Agreement on behalf of the Licensee.
4. "Modifications" mean any changes or extensions introduced into the Software or otherwise based on or derived from the Software source statements by Vanderbilt. Modifications include, but are not limited to, corrections of program errors, translations and stylistic restructuring of the Software, addition or deletion of functions or enhancement of existing functions of the Software, changes or additions required to integrate the Software into other applications or to allow the Software to run under alternative operating systems or computer hardware configurations, and other adaptations of the Software.
5. "Registration Page" means the portion of the web site used by Licensees to enter information permitting the licensing of the Software.
6. "Site" means a single personal computer on which the Software will be used and maintained. Site(s) authorized to maintain the Software is (are) are those designated on the Registration Page.
7. "Software" means the current version of the ETA software package as available on the Effective Date and listed on Attachment A.
8. "Technical Contact" means the individual authorized by Licensee to receive the Software and conduct all technical correspondence with Vanderbilt as listed on the Registration Page.

GRANT

Commencing on the Effective Date, and provided that Licensee abides by the terms of this Agreement including, but not limited to, the provisions of Section 7, Vanderbilt hereby grants, and Licensee accepts, a limited, non-exclusive, non-transferable license to use the Software and any Modification provided by Vanderbilt, at the Site(s), and to make such copies of the Software in original or modified form as are necessary for such use at the Site(s). Licensee shall under no circumstances make any modifications to the Software itself, or analyze for composition, structure, reverse engineer or decompile the Software or attempt to do so. These Grants are limited to Licensee’s use at the Site and does not authorize use of the Software by third parties at the Site or by anyone not located at the Site via the Internet or any other means. Licensee shall obtain no ownership in the Software under this Agreement, and with the exception of applying Vanderbilt-provided Modifications (or "updates"), shall not modify the Software or the accompanying documentation in any way, for any reason. Licensee shall retain in the Software the proprietary notices and legends as provided by Vanderbilt, including without restriction any and all copyright, trademark, patent notices and legends pertaining to attribution, source of developments, funding sources, and disclaimer of risk and, at the request of Vanderbilt, shall promptly modify such proprietary notices and legends to conform to Vanderbilt’s reasonable requirements. Licensee shall not distribute, publish, or otherwise transfer or allow to be transferred, the Software or copies thereof, in whole or in part, without prior written permission of Vanderbilt. Licensee acknowledges and agrees that Vanderbilt Software (including Modifications) contains valuable proprietary information and trade secrets developed, licensed or acquired by Vanderbilt.

USE OF NAMES

Licensee shall not use the name "Vanderbilt University" or any abbreviation thereof, or the names of any Vanderbilt personnel or identifiers of the Software without prior written approval from Vanderbilt.

DELIVERY

Vanderbilt shall provide Licensee access to the Software by means of an internet transmission (HTTP download) following execution of this Agreement. Licensee authorizes delivery of the Software to be made to the Technical Contact.

UPDATES

Vanderbilt will provide updates to the Software, in Vanderbilt’s sole discretion, on an "as available" basis during the term of this Agreement. Upon delivery, all such updates shall thereafter be considered part of the Software.

TERM

This Agreement shall remain effective for a term of up to twelve (12) months from the Effective Date or any anniversary date upon which this Agreement has been renewed ("Termination Date", which due to system constraints shall be December 31 or otherwise the last day of any given calendar year) unless sooner terminated as provided herein. Licensee may renew the Agreement on or before any Termination Date. If Licensee does not renew this before the Termination Date, the license granted herein shall terminate in its entirety.

TERMINATION

This Agreement will terminate without further action by or notice from Vanderbilt for any future period for which Licensee has not abided by the terms of this Agreement including, but not limited to, the provisions of Section 7. Licensee may terminate this Agreement at any time upon written notice to Vanderbilt. Vanderbilt may terminate this Agreement immediately upon notice if Licensee is in material breach of this Agreement. The provisions under which this Agreement may be terminated will be in addition to any and all other legal remedies which either party may have for the enforcement of any and all terms hereof, and do not in any way limit any other legal remedy such party may have. Termination of this Agreement will terminate all rights and licenses granted to Licensee relating to the Software. Licensee shall certify in writing to Vanderbilt within ten (10) days after Termination that the Software has been destroyed.

LICENSEE STATUS AND OBLIGATIONS

1. This "Non-Exclusive Software Site License Agreement" shall be available to any institutions who use the Software solely for research purposes and provided that such Licensee abides by the terms of this Agreement including, but not limited to, the provisions of this Section 7.
2. Licensee shall:
   1. If Licensee wishes to use or make available the Software for any commercial purposes, including fee-based service projects, Licensee shall need to enter into a separate license agreement with Vanderbilt University and pay a licensing fee. In the event Licensee wishes to obtain such a commercial use license, Licensee must contact Vanderbilt’s Center for Technology Transfer and Commercialization, 1207 17th Avenue South, Suite 105, Nashville, Tennessee 37212 Attn: ETA Licensing.
   2. Not modify the Software or written materials or documentation related to the Software in any way. In particular, all Vanderbilt copyright, trademark, or other notices contained in the Software or written materials or documentation must be maintained by Licensee.
   3. Provide the developers of the Software in the Jamey Young Laboratory at Vanderbilt with comprehensive feedback on the use of the Software in Licensee’s research which information Vanderbilt shall be permitted to use in evaluating and making changes to the Software. All bug reports and technical questions shall be sent via the VU e-Innovations contact form [http://mfa.vueinnovations.com/contact].
3. Vanderbilt and Licensee will each acknowledge in their respective publications relating to their research utilizing the Software the contributions made by the other party.

AMENDMENT OF THIS AGREEMENT

Vanderbilt may amend this Agreement, in its sole and absolute discretion, at any time or from time-to-time during the Term or after a Termination Date. Such amendments may include, but not be limited to, the assessment of a license fee for use of the Software.

LIMITED SUPPORT; UPDATES

Licensee shall receive reasonable assistance by email and access to updates and new releases of the Software, which Vanderbilt may make available from time to time within its sole discretion ("Limited Support"). Limited Support is provided by queries sent via the MFA Suite / VU e-Innovations contact form [http://mfa.vueinnovations.com/contact] or other contact point as may be designated by Vanderbilt from time to time. In order for Licensee to receive the Limited Support set forth herein, Licensee must be using the latest version and all current releases and updates of the Software. If Vanderbilt generally makes available new versions of the Software, the new versions will be available to Licensee at the discretion of Vanderbilt. Limited Support does not include responding to Licensee if, in Vanderbilt’s reasonable opinion, Licensee fails to provide sufficient information, as reasonably requested by Vanderbilt, to enable Vanderbilt to identify, reproduce and analyze the reported problem; Vanderbilt reserves the right to charge additional fees for such support.

DISCLAIMERS

The Software has been developed as part of research conducted at Vanderbilt University. The Software is experimental in nature and is available "AS IS," without obligation by Vanderbilt to provide Licensee services or support except as specified in this Agreement. The entire risk as to the quality and performance of the Software is with Licensee. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, VANDERBILT DOES NOT MAKE AND EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOFTWARE AND SUPPORT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER VANDERBILT KNOWS OR HAD REASON TO KNOW OF LICENSEE’S PARTICULAR NEEDS. NO EMPLOYEE, AGENT, DEALER OR DISTRIBUTOR OF VANDERBILT IS AUTHORIZED TO MODIFY THE LIMITED WARRANTY, OR TO MAKE ANY ADDITIONAL WARRANTIES. SOME COUNTRIES AND STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS, AND LICENSEE MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY OR STATE TO STATE Vanderbilt’s entire liability and Licensee’s exclusive remedy for a breach of this Agreement shall be termination of this Agreement by returning or destroying the Software. Vanderbilt shall have no liability for consequential, exemplary, indirect, special, punitive or incidental damages whether based on contract, tort or any other legal theory, arising out of or related to this Agreement or the inability to use the Software or Limited Support, nor shall Vanderbilt be liable for any loss of data or lost profits of Licensee, even if Vanderbilt is apprised of the likelihood of such damages occurring. SOME COUNTRIES OR STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY IN THOSE JURISDICTIONS.

INDEMNIFICATION

Licensee shall indemnify, defend and hold harmless Vanderbilt and its officers, trustees, faculty, staff, employees, students, agents and their respective successors or assigns against any and all claims, suits, losses, damages, costs, fees and expenses resulting from Licensee’s possession and/or use of the Software (including any Modifications), including by not limited to any damages, losses or liabilities whatsoever with respect to death or injury to any person and damage to any property. This indemnification clause shall survive the termination of this Agreement.

COMPLIANCE WITH LAWS

Vanderbilt and Licensee will comply with all federal, state and local laws and regulations, as amended from time to time, applicable to such party’s performance of its obligations under this Agreement, including all applicable export controls and economic sanctions laws and regulations of the United States and other applicable jurisdictions. Further, because the provision of a “service” under U.S. economic sanctions is generally prohibited without a license, Vanderbilt will block the IP addresses of persons located in Iran, Syria, Republic of Sudan, Cuba, North Korea or any other country to which the provision of such services is prohibited and will take reasonable steps to exclude participation of persons identified on the U.S. Treasury Department’s List of Specially Designated Nationals, Blocked Persons and Foreign Sanction Evaders, except as licensed otherwise authorized by the U.S. Government.

NOTICES

All notices required or permitted relating to a claim or breach of this Agreement shall be in writing and sent to: (i) if to the Licensee: to the Licensing Contact; and (ii) if to Vanderbilt: Center for Technology Transfer and Commercialization, 1207 17th Avenue South, Suite 105, Nashville, Tennessee 37027, Attn: ETA Software. Either party may change their address from time to time by written notice to the other and shall be deemed validly given upon receipt of such notice given by certified mail, postage prepaid, or personal or courier delivery. All Limited Support or other notices relating to the usage of the Software will be provided by Vanderbilt either via telephone or e-mail.

GENERAL

This Agreement will be construed in accordance with, and its performance will be governed by, the laws of the State of Tennessee, excluding its conflict of laws principles. Any suit, action, or proceeding arising out of or relating to this Agreement will be decided in Davidson County, Tennessee. Licensee accepts the venue and jurisdiction of the Federal District Court of Middle Tennessee or the state courts in Davidson County, Tennessee. Headings are provided for convenience only. No omission or delay of either party hereto in requiring due and punctual fulfillment of the obligations of any other party hereto shall be deemed to constitute a waiver by such party of its rights to require such due and punctual fulfillment, or of any other of its remedies hereunder. Licensee shall not assign or transfer this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Vanderbilt. Vanderbilt may assign its rights or obligations hereunder without the consent of or notice to Licensee. This Agreement shall inure to the benefit of and bind successors and permitted assigns of Vanderbilt and Licensee. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions will not be in any way affected or impaired thereby. In the event either party hereto is prevented from or delayed in the performance of any of its obligations hereunder by reason of acts of God, war, strikes, riots, storms, fires or any other cause whatsoever beyond the reasonable control of the non-performing party, the non-performing party shall be excused from the performance of any such obligation to the extent and during the period of such prevention or delay. This Agreement embodies the entire understanding of the parties and supersedes all previous communications, representations, or understandings, either oral or written, between the parties relating to the subject matter hereof.

ATTACHMENT A — SOFTWARE CODE

The ETA software package is a collection of MATLAB® P-code files developed by the Young laboratory at Vanderbilt. The package is used to estimate specific rates (i.e., on a per-cell basis) of nutrient uptake and product excretion in cultured cells. The user provides the program with measurements of the target analyte concentrations in extracellular medium that has been exposed to cells for varying lengths of time. The user must also provide measurements of cell number or concentration over time. Based on these inputs, the program will perform regression analysis to estimate the specific growth rate of the cells and the specific uptake and excretion rates of the target analytes. The program also calculates statistical metrics of goodness-of-fit and standard errors of the estimated parameters. Further information about projects and publications related to this software can be found at www.vanderbilt.edu/younglab.