Behavioral Choice Task

This Behavioral Choice Task Software License Agreement, (this “Agreement”), is a binding contract between The Research Foundation for The State University of New York, on behalf of University at Buffalo a non-profit corporation organized and existing under the laws of the State of New York (“Foundation”) and the individual or type of Person intending to download, install or otherwise use the Software, hereinafter referred to as “Licensee.”

FOUNDATION PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON BELOW, AND/OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, LICENSEE (A) ACCEPTS THIS AGREEMENT AND AGREES THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) IF AN INDIVIDUAL, LICENSEE IS 18 YEARS OF AGE OR OLDER; AND (II) LICENSEE HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, FOUNDATION WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND LICENSEE MUST NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE OR DOCUMENTATION.

For purposes of this Agreement, the following terms have the following meanings

“Documentation” means all documentation and other materials related to the Software and provided by Foundation, including user manuals, help files and any other instructions, specifications, documents, and materials that describe the functionality, installation, testing, operation, use, maintenance, support, technical features, or requirements of the Software.

“Intellectual Property Rights” means any and all intellectual property or proprietary rights throughout the world, including all: (i) patent rights (including patent applications and disclosures); (ii) registered and unregistered copyrights (including rights in software, including in source code and object code); (iii) registered and unregistered trademark rights; (iv) trade secret rights; and (v) know-how rights.

“License” has the meaning set forth in Section 2.

“Licensee” has the meaning set forth in the preamble.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

“Software” means the software program used by or in development by Foundation referred to as the “Behavioral Choice Task” (or the “Application”) as developed by or for Foundation, and any updates, upgrades, enhancements, releases, improvements, and any other adaptations or modifications made to such Application (which may contain, among other things, error corrections or other changes to the functionality, compatibility, capabilities, performance, efficiency, or quality of such Application), whether or not owned by Foundation. Foundation is not obligated to update, upgrade, enhance or improve the Software.

“Term” has the meaning set forth in Section 9.

“Third Party” means any Person other than Licensee or Foundation.

“Third Party Licenses” has the meaning set forth in Section 3.

Subject to and conditioned upon Licensee's strict compliance with all of the terms and conditions set forth in this Agreement, Foundation hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable limited license (hereinafter, the “License”) during the Term to use the Software and Documentation, solely as set forth in this Section 2 and subject to all of the conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This License grants Licensee the right to:

• use the Software for reinforcement and habituation paradigms in humans. Eligible end users are all Persons who pay a fee to access the Application (the "Permitted Use"). The reproduction, copying, or redistribution of content for commercial purposes is prohibited without the express written permission of Foundation; and
• use and run the Software as properly installed in accordance with this Agreement and the Documentation, and solely for Licensee's internal purposes.
  

The Software may include software, content, data or other materials, including related documentation, that are owned by Persons other than Foundation and that are provided to Licensee on terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). This License and Licensee’s use of the Software is subject to such Third-Party Licenses. Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee of any Third-Party License is also a breach of this Agreement.

Licensee shall not, directly or indirectly:

• use (including make any copies of) the Software or Documentation beyond the scope of this License;
• permit any other Person to use the Software or Documentation;
  
• modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
• reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
• remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other Intellectual Property Rights notices from the Software or Documentation, including any copy thereof;
• except as contemplated by this License, copy the Software or Documentation, in whole or in part;
• use the Software or Documentation in the operation of a service bureau;
• use the Software or Documentation in violation of any foreign, federal, state or local law, regulation or rule, including without limitation applicable privacy rules or regulations concerning personal data; or
• use the Software or Documentation for purposes of the development of a competing software product or service or any other purpose that is to the Foundation’s disadvantage.

Licensee is responsible and liable for all uses of the Software through access thereto provided by Foundation, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software by itself, its own users or by any other Person to whom Licensee may provide access to or use of the Software, whether such access or use is permitted by or in violation of this Agreement. In particular, Licensee is solely responsible and liable for complying with any laws, rules, regulations, foreign or domestic, related to personal data.

This License does not entitle Licensee to any maintenance or support services with respect to the Software. 

Licensee acknowledges that Foundation may, directly or indirectly through the services of Third Parties, collect, use and store information regarding Licensee’s contact information, payment, and affiliation.

Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto other than to use the same in accordance with the License, and subject to all of the terms, conditions and restrictions under this Agreement. Foundation (and its licensors and service providers) reserve and shall retain their entire right, title and interest in and to the Software and Documentation and all Intellectual Property Rights arising out of or relating to the Software and Documentation, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Licensee shall promptly notify Foundation if Licensee becomes aware of any infringement of Foundation's Intellectual Property Rights in the Software or Documentation and fully cooperate with Foundation in any legal action taken by Foundation to enforce its Intellectual Property Rights.

• This Agreement and the License will remain in effect unless terminated as set forth herein (the “Term”).
• Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation.
• Foundation may, at its sole discretion, terminate this Agreement after providing thirty (30) days’ notice to Licensee.
• Foundation may, upon written notice to Licensee, terminate this Agreement for material breach, provided that such material breach is not cured within thirty (30) days following receipt of such notice.
• Upon expiration or earlier termination of this Agreement, the License will also terminate, and Licensee will cease using and destroy all copies of the Software and Documentation.
• Notwithstanding any expiration or termination of this Agreement, any provisions of this Agreement which by their terms are intended to survive expiration or termination of this Agreement will so survive and continue in full force and effect.

THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, FOUNDATION, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. FOUNDATION PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

• IN NO EVENT WILL FOUNDATION OR THE STATE UNIVERSITY OF NEW YORK AND THEIR RESPECTIVE TRUSTEES, OFFICERS, STAFF, EMPLOYEES, STUDENTS, AND AGENTS AND THEIR RESPECTIVE SUCCESSORS, HEIRS, AND ASSIGNS , BE LIABLE TO THE LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT FOUNDATION WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
• THE LIMITATIONS SET FORTH IN THIS SECTION 11 WILL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL THEIR ESSENTIAL PURPOSE.

Licensee agrees to use reasonable efforts to maintain the confidentiality of any confidential information of Foundation that it obtains pursuant to this Agreement consistent with the efforts Licensee uses to protect its own confidential and trade secret information of like importance, and shall take all reasonable steps to ensure that such confidential information is not disclosed or distributed by it, its employees or agents to third parties not subject in writing to an agreement to protect such confidential information. Licensee agrees that the Software and Documentation shall be deemed confidential information of Foundation. If Licensee becomes aware of the disclosure of any confidential information of Foundation obtained pursuant to this Agreement to anyone other than Licensee, it must immediately provide notice of such disclosure to Foundation. Licensee must use all reasonable efforts to retrieve the confidential information and prevent further disclosure. Licensee’s disclosure of confidential information of Foundation will be considered a material breach of the Agreement.

• Licensee shall indemnify, defend, and hold harmless Foundation and the State University of New York and their respective trustees, officers, staff, employees, students, and agents and their respective successors, heirs, and assigns (the “Indemnified Parties”), against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the Indemnified Parties or any one of them in connection with any third party claims, suits, actions, demands, or judgments: (i) arising out of use of the Software by Licensee other than as expressly permitted pursuant to this Agreement herein; (ii) any breach by Licensee of any rules, laws, orders, or regulations including but not limited to those governing personal data; or (ii) arising out of any other activities to be carried out by or on behalf of Licensee pursuant to this Agreement provided that the liability, damage or loss is not attributable to the negligent activities of such Indemnified Party.
• Licensee agrees, at its own expense, to provide attorneys reasonably acceptable to Foundation to defend against any actions brought or filed against any Indemnified Parties with respect to the subject of indemnity to which such Indemnified Parties are entitled hereunder, whether or not such actions are rightfully brought. Foundation will cooperate in the defense thereof, provided, however, that Foundation will have the right, but not the obligation, to control the defense, at its expense, of any such actions. Foundation and the Indemnified Parties may, at their option and expense, have their own counsel participate in any proceeding which is under direction of Licensee and will cooperate with Licensee and its insurer in the disposition of any such matter; provided, however, that if Licensee shall not defend such actions, Foundation and the Indemnified Parties shall have the right to defend such actions themselves and recover from Licensee all reasonable attorneys' fees and expenses incurred by it during the course of such defense.
• Neither Foundation, the Indemnified Parties, nor Licensee shall enter into, or permit, any settlement of any such actions under this Section without the express written consent of the other parties.

• This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the courts within the State of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens.
• The relationship between Licensee and Foundation established by this Agreement is that of independent contractors. No joint venture or partnership is established by this Agreement. Neither party is the agent, broker, partner, employee, or legal representative of the other for any purpose.
• All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses as may be designated by a party from time to time. Notices to Foundation should be made to:
  
  Technology Transfer
  University at Buffalo
  UB Commons
  520 Lee Entrance, Suite 109
  Amherst, NY 14228
  Attn: Director
• This Agreement, together with all schedules attached hereto constitutes the sole and entire agreement between Licensee and Foundation with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
  
• Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Foundation's prior written consent, which consent Foundation may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Foundation's prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section is void. Foundation may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
• This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
• This Agreement may only be amended or modified by Foundation. Foundation may, but is not required to, send Licensee a notice regarding any modifications or updates to this Agreement. Licensee will not make any waiver to any of the provisions hereof. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
• If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
• For purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. All schedules referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
• The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.