GSID: Hosted Application Services Agt. (form)

Global Solutions for Infectious Diseases, a not-for-profit corporation with its principal place of business at 830 Dubuque Avenue, South San Francisco, CA 94080 ("GSID"), is willing to grant you ("You") certain rights, as specified below, only on the condition that You agree with the terms and conditions set forth below ("Access Agreement" or "This Agreement").

1. DEFINITIONS

"Authorized User" means an employee of Yours that has (i) been assigned a unique username-password combination to access and use the GSID Database, and (ii) registered online to access and use the GSID Database.

"Effective Date" means the date on which You clicked the "I ACCEPT" button and were granted access to the GSID Database.

"GSID Database" shall mean the compilation of DNA, RNA and/or protein sequences encoding HIV, and "Related Materials", which means clinical and other scientific information, as made available to You under this Agreement.

"HIV" shall mean Human Immunodeficiency Virus, as generally defined by the medical community as of the Effective Date, and as such definition may be updated from time to time thereafter.

"Intellectual Property Rights" means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.

"Term" means the term of this Agreement as defined in Section 6.1.

"Third Party" means any party other than GSID, You, and the respective affiliates.

2. RIGHTS

2.1 Access Rights. Subject to the terms of this Agreement, GSID grants You the right to access and use the GSID Database and Related Materials solely for internal research purposes. In consideration for such rights, You agree to pay to GSID an annual Access Fee equal to US$175.00 for commercial private sector organizations or US$50.00 for academic institutions or other not-for-profit research organizations. For the purposes of this Agreement, "internal research purposes" shall mean non-commercial research, including through collaborative projects with Third Party collaborators, provided either (i) the Third Party collaborators have also entered into an Access Agreement, or (ii) You do not share the information contained in the GSID Database and Related Materials or the research data derived therefrom with any Third Party collaborator that has not entered into an Access Agreement.

2.2 Restrictions. You are not allowed to conduct any commercial activities (whether by yourself or in collaboration with a Third Party) under this Agreement. Should You wish to conduct any such commercial activities, You must enter into a separate royalty-bearing license agreement with GSID. Notwithstanding anything to the contrary, You are permitted to disclose or otherwise publish the results of any internal research using the GSID Database and Related Materials, provided that (i) You must acknowledge and credit GSID in any such publication for the use of the GSID Database and Related Materials, (ii) You do not disclose any data or information included in the GSID Database and Related Materials, (iii) You do not knowingly disclose inventions or discoveries that are identified or discovered under such research and for which intellectual property protection (whether through the filing of a provisional patent application or otherwise) has not been sought within the United States or through the European Patent Office (i.e., products or potential products that would otherwise be placed into the public domain), and (iv) You do not disclose any results derived from the use of the GSID Database and Related Materials either (A) for the purpose of licensing a Third Party to conduct its own commercial activities or (B) if You know or have reason to know that such results will be used by the Third Party to conduct its own commercial activities. Furthermore, You are not allowed to change, alter, modify, adapt, compile and create derivative works from the GSID Database and Related Materials, as well as from the data or information contained therein.

2.3 Enforcement. You shall ensure that all Authorized Users comply with the terms and conditions of this Agreement, including, without limitation, with the restrictions set forth in Section 2.2. You shall promptly notify GSID of any suspected or alleged violation of the terms and conditions of this Agreement and shall cooperate with GSID with respect to: (a) investigation by GSID of any suspected or alleged violation of this Agreement and (b) any action by GSID to enforce the terms and conditions of this Agreement. GSID may suspend or terminate any Authorized User's access to the GSID Database and Related Materials upon notice to You in the event that GSID reasonably determines that such Authorized User has violated the terms and conditions of this Agreement. You shall be liable for any violation of the terms and conditions of this Agreement by any Authorized User.

3. IP OWNERSHIP

GSID and its licensors shall retain all right, title and interest, including all world-wide Intellectual Property Rights in and to the GSID Database and Related Materials, and any other proprietary information contained therein. Ownership of any discoveries made through use of the GSID Database and Related Materials shall be established through the law of inventorship. You agree that you will grant to GSID a non-exclusive, royalty free, fully paid license, with the right to sublicense, to use any Intellectual Property Rights that you may develop related to methods of developing vaccines.

4. WARRANTY DISCLAIMER

THE GSID DATABASE AND RELATED MATERIALS AREPROVIDED "AS IS" AND GSID EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, ACCURACY, CORRECTNESS, RELIABILITY, COMPREHENSIVENESS, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THE GSID DATABASE AND RELATED MATERIALS AS WELL AS OF ANY DATA OR INFORMATION CONTAINED THEREIN, AND FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, GSID DISCLAIMS ANY WARRANTY THAT THE GSID DATABASE AND RELATED MATERIALS WILL BE ERROR FREE OR UNINTERRUPTED.

5. CONFIDENTIALITY

5.1 Confidential Information. As used herein, "Confidential Information" shall mean all information that GSID discloses to You under this Agreement, including the GSID Database and Related Materials and any data or information contained therein. Except to the extent expressly authorized by this Agreement or otherwise agreed in writing by the Parties, You agree that, during the Term and for five (5) years after the expiration or termination of this Agreement, You shall keep confidential and shall not publish or otherwise disclose and shall not use for any purpose other than to exercise rights or to perform obligations under this Agreement any Confidential Information furnished to it by GSID pursuant to this Agreement.

5.2 Employees; Agents. You shall ensure that each employee, consultant or other agent of Yours who has access to Confidential Information is bound to obligations of confidentiality and non-use at least equivalent in scope to those set forth in this Article 5.

6. TERM AND TERMINATION

6.1 Term. This Agreement shall commence on the Effective Date and shall continue for the period of one (1) year thereafter (the "Initial Term"), unless terminated earlier as provided in this Agreement. This Agreement shall automatically renew for subsequent one-year periods, unless either party notifies the other in writing of its intent not to renew at least thirty (30) days prior to the end of the then-current term. The Initial Term and renewal periods are collectively the "Term".

6.2 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within fifteen (15) days following written notice specifying the breach; provided that GSID may terminate this Agreement immediately upon notice in case You violate the restrictions set forth in Section 2.2.

6.3 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Your right to access and use the GSID Database and Related Materials shall immediately terminate, and You shall immediately cease all use of the GSID Database and return and make no further use of any Confidential Information, materials, or other items belonging to GSID.

6.4 Survival. The rights and obligations contained in Sections 1, 2.2, 2.3, 3, 4, 5.1, 5.2, 6.3, 7, 8, shall survive any expiration or termination of this Agreement.

7. INDEMNIFICATION

You shall defend (or settle), indemnify and hold harmless GSID and its directors, officers and employees and the successors and assigns of any of the foregoing from and against any and all liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other expenses of litigation) (collectively "Claims") in connection with Third Party claims, suits, actions, demands or judgments, to the extent directly or indirectly relating to or based on your use of the GSID Database and Related Materials.

8. LIMITATION OF LIABILITY. IN NO EVENT SHALL GSID, ITS PERSONNEL OR GSID'S SOURCES OF INFORMATION BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES ARISING OUT OR RELATED TO THE USE OF THE GSID DATABASE AND RELATED MATERIALS, INCLUDING OF ANY DATA OR INFORMATION CONTAINED THEREIN, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS OR LOST PROFITS), WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF GSID, ITS PERSONNEL OR ITS SOURCES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, GSID SHALL IN NO EVENT HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY WITH RESPECT TO ANY DAMAGE TO DATA, EQUIPMENT OR SOFTWARE, OR ANY FORM OF PERSONAL INJURY OR PROPERTY DAMAGE.

9. GENERAL

9.1 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the Northern District of California. The Parties hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.

9.2 Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

9.3 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.

9.4 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other's behalf without such other party's prior written consent.

9.5 Assignment. You may not assign or transfer this Agreement, in whole or in part, without GSID's written consent.

9.6 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. GSID reserves the right to amend any and all provisions of this Agreement at any time. Your use of the GSID Database and Related Materials following notification by GSID of such changes will constitute Your acceptance of such amended terms and conditions.

9.7 Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

9.8 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.