Semeta™ End User Licence Agreement

THIS AGREEMENT is entered into between the Customer and Optibrium on the Effective Date and is made up of the Key Terms, main body and schedules below (the “Agreement”).

Parties

OPTIBRIUM LIMITED incorporated and registered in England and Wales with a company number 06715106 whose registered office is at F10-13 Blenheim House Cambridge Innovation Park, Denny End Road, Cambridge, Cambridgeshire, United Kingdom, CB25 9GL (“Optibrium”); and
The party named as the customer in the Key Terms (the “Customer”), each a “Party”, together the “Parties”.

Background

Optibrium has developed a software application, known as Semeta™, which predicts the metabolism of chemical compounds by phase I and phase II drug metabolising enzymes. Semeta™ is a trademark of Optibrium.
The Customer wishes to use the Semeta Software to further its internal research and development.
Optibrium has agreed to provide and the Customer has agreed to take and pay for Semeta subject to the terms and conditions of this Agreement.
The Parties acknowledge that Optibrium will provide Semeta by way of a software subscription service.

Agreed Terms

INTERPRETATION
1. The definitions and rules of interpretation in this clause 1 apply in this Agreement.
  1. “Affiliates” means any subsidiary or holding company of a Party, together with any subsidiary of any such holding company (the terms “subsidiary” and “holding company” having the meaning set out in Section 1159 of the Companies Act 2006, as amended);
  2. “Applicable Law” means any laws or regulations, regulatory policies, mandatory guidelines, which apply to the obligations of each of the Parties under this Agreement or its subject matter and are in force from time to time;
  3. “Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
  4. “Confidential Information” means the Agreement and all other documents and data in any form that may become known to a Party in connection with the preparation, negotiation, conclusion, implementation, or settlement of the Agreement including any information, however conveyed or presented, that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, compound structures and associated data, strategies, developments, algorithms, code, software, trade secrets, know-how, personnel, sub-contractors and suppliers of the disclosing party, together with all information derived by the receiving party from any such information and any other information clearly designated by a Party as being confidential to it (regardless of whether these documents or data are marked as confidential),or which ought reasonably be considered to be confidential;
  5. Controller, Processor, Data Subject, Personal Data, personal data breach, Processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation;
  6. “Customer Data” means the data inputted by the Customer or Permitted Users for the purpose of using the Semeta Software;
  7. “Customer Personal Data” means Personal Data that Customer provides to Optibrium on a Permitted User;
  8. “Data Protection Legislation” shall mean: all applicable privacy and data protection laws, including the EU General Data Protection Regulation (Regulation 2016/679) (the “GDPR”), the Data Protection Act 2018 and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426);
  9. “Data Subject Request” means a Data Subject request to access, correct, amend, transfer or delete that person’s Personal Data consistent with that person’s rights under the Data Protection Legislation;
  10. “Documentation” means any documentation made available to the Customer by Optibrium from time to time to facilitate the Customer’s access and use of the Semeta Software in accordance with the terms of this Agreement (and as updated from time to time);
  11. “Effective Date” date of acceptance of the Quotation by the Customer or issue of a corresponding purchase order;
  12. “Initial Term” means the initial term of this Agreement, as set out in the Key Terms;
  13. “Insights” means any non-personal data generated by the Semeta Software about the Customer’s use of the Semeta Software, excluding any Confidential Information of the Customer;
  14. “Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in data, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
  15. “Key Terms” means those key terms stipulated in the Quotation (and otherwise agreed between the Parties from time to time);
  16. “Licenced Site” means the designated Customer facility or facilities from which Permitted Users may access and use the Semeta Software pursuant to this Agreement as set out in the Key Terms;
  17. “Maximum Number of Permitted Users” means that number of Permitted Users, as specified in the Key Terms;
  18. “Normal Business Hours” means 0900 to 1700 local UK time, each Business Day;
  19. “Payment Terms” mean those payment terms specified in the Key Terms.
  20. “Permitted Users” means those employees and contractors of the Customer wholly or substantially based at the Licensed Site during the ordinary course of business and who are permitted to access and use the Semeta Software and Documentation from time to time and who shall, at all times, be bound by the terms of this Agreement including but not limited to, the confidentiality and non-use obligations contained herein;
  21. “Quotation” means the quotation issued to the Customer by Optibrium for the relevant Subscription Services;
  22. “Renewal Period” means the period described in clause 1;
  23. “Results” means any outputs, information or data generated by the Semeta Software as a result of the Semeta Software analysing or processing the Customer Data;
  24. “Server Specification” means that server specification provided by Optibrium under this agreement to host any of the Semeta Software, as specified in the Key Terms and as otherwise amended by agreement between the parties from time to time.
  25. “Service Levels” shall mean the service level commitments from Optibrium in respect of the Subscription Services as set out in Schedule 3.
  26. “Specification” means the document detailing the specification of the Semeta Software;
  27. “Semeta Software” means the software provided by Optibrium by way of the Subscription Services as defined in Schedule 1;
  28. “Sub-processor” means any natural or legal person, public authority, agency or other body which processes Personal Data on behalf of a data controller or a data processor;
  29. “Subscription Fees” means the non-refundable fees payable by the Customer to Optibrium for provision of the Semeta Software, as set out in the Key Terms, and as adjusted from time to time for any Renewed Period in accordance with clause 8;
  30. “Subscription Services” means The provision and hosting of the Semeta Software by Optibrium to the Customer (as further described the Documentation);
  31. “Support Fees” means the non-refundable fees payable by the Customer to Optibrium for the Support Services, as set out in the Key Terms, and as adjusted from time to time for any Renewed Period in accordance with clause 8;
  32. “Support Services” means any support services provided by Optibrium to the Customer during the Term to enable its use of the Semeta Software, as set out in clauses 2.2 and 4.2.3;
  33. “Term” has the meaning given to it in clause 1;
  34. “Training Sessions” means the training sessions (as specified in the Key Terms) to be provided by Optibrium to the Customer in respect of the Semeta Software;
  35. “Virus” means any, thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
5. References to any statute or statutory provision shall include (i) any subordinate legislation made under it, (ii) any provision which it has modified or re-enacted (whether with or without modification), and (iii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification) whether made before or after the date of this Agreement.
6. A reference to writing or written includes e-mail.
7. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
8. If there is an inconsistency between any of the provisions in the main body of this Agreement and the schedules, the provisions in the main body of this Agreement shall prevail.
TERM
1. This Agreement shall commence on the date that access to the Semeta Software is first provided to the Customer’s Permitted Users, in accordance with Clause 4.1, and continue for the period of the Initial Term and, thereafter, this Agreement shall be automatically renewed for successive periods of twelve (12) months (each a “Renewal Period”), unless either Party notifies the other Party of termination in writing at least sixty (60) days before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period. The Initial Term together with any subsequent Renewal Periods shall constitute the “Term”.
PROVISION OF THE SEMETA SOFTWARE
1. In consideration of the Fees paid by the Customer to Optibrium, Optibrium hereby grants to the Customer a revocable, non-exclusive, non-transferable right, without the right to grant sub-licences, to use the Subscription Services and the Documentation during the Term solely for the Customer’s internal research and development programmes and not for any other purpose.
2. For the purposes of clause 1, the Customer’s use of the Semeta Software shall be: (i) restricted to use by Permitted Users only and the number of Permitted Users shall not exceed the Maximum Number of Permitted Users; and (ii) limited to the agreed Server Specification (if applicable).
3. The Customer may not use the Semeta Software other than as specified in clauses 1 and 3.2 without the prior written consent of Optibrium, and the Customer acknowledges that additional fees may be payable on any change of use or increase in use approved by Optibrium.
4. During the Term, the Customer shall permit Optibrium, upon reasonable notice, to inspect (and take copies of) such of the Customer’s accounts, records and other information as Optibrium (or Optibrium’s appointed representative) may reasonably request in order to verify the Customer’s and Permitted User’s use of the Semeta Software. Such audit shall not be conducted more than once in any twelve (12) month period. If such audit reveals that the Customer’s use or access to the Semeta Software exceeds the level of use paid for by the Customer, then the Customer shall at Optibrium’s discretion either be required to pay for the excess use or, without prejudice to Optibrium’s other rights, Optibrium shall have the right to terminate this Agreement immediately on written notice.
5. The Customer shall not:
  1. except as may be permitted under Applicable Law and which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted under this Agreement:
    1. attempt to copy, modify, duplicate, adapt, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Semeta Software and/or Documentation (as applicable) in any form or media or by any means; or
    2. attempt to de-compile, reverse compile, disassemble, reverse engineer, make error corrections or otherwise reduce to human-perceivable form all or any part of the Semeta Software and shall use best efforts to prevent any unauthorised copying, distribution, reverse engineering, decompiling or disassembling of all or any part of the Semeta Software; or
    3. remove, supress or modify any proprietary or confidentiality marking or notice on or in the Semeta Software; or
  2. access all or any part of the Semeta Software and Documentation in order to build a product or service which competes directly or indirectly with the Semeta Software and/or the Documentation; or
  3. use the Semeta Software and Documentation for any time sharing, rental or service bureau use or in or pursuant to any agreement, collaboration, arrangement, understanding or concerted practice with any third party; or
  4. subject to clause 1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Semeta Software and/or Documentation available to any third party except the Permitted Users; or
  5. attempt to obtain, or assist third parties in obtaining, access to the Semeta Software and/or Documentation, other than as provided under this clause 5.
6. The Customer shall prevent and take all steps to prevent, and minimise the effect of, any unauthorised access to, or use of, the Semeta Software and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Optibrium in writing.
7. It is anticipated that, during the Term, the Semeta Software may require updating from time to time. Optibrium shall be entitled to make changes to the Semeta Software and/or Documentation and its methods of delivering the Subscription Services and any updates will be generated at the sole discretion of Optibrium. In relation to the Subscription Services, any updates will be pushed to the Customer so that it may take advantage of such updates in the Customer’s use of the Semeta Software and Documentation.
8. The rights provided under this clause 3 are granted to the Customer only and are not granted to any Affiliate of the Customer.
SUBSCRIPTION AND SUPPORT SERVICES
1. Optibrium shall host the Semeta Software in accordance with the Server Specification and provide access to the Semeta Software to the Customer’s Permitted Users within ten (10) Business Days of the Effective Date. Subject to the preceding, Optibrium shall, during the Term, provide the Subscription Services and make available the Documentation to the Customer in accordance with and subject to the terms of this Agreement.
2. Optibrium shall:
  1. provide the Subscription Services substantially in accordance with the Documentation and with reasonable skill and care;
  2. if applicable, provide the Customer with the Training Session(s) by web meetings or at the Licensed Sites at mutually agreed times. Additional Training Session(s) may be agreed between the parties at a time and at an additional cost mutually agreed between the parties; and
  3. provide the Customer with technical support and any other support services agreed between the parties in relation to the Customer’s access and use of the Semeta Software by telephone and email during Normal Business Hours,(the services described in clauses 4.2.2 and 4.2.3 above together being the Support Services).
3. Optibrium shall use commercially reasonable endeavours to make the Subscription Services available in accordance with the Service Levels, except for:
  1. planned maintenance carried out during Normal Business Hours, provided that Optibrium has used reasonable endeavours to give the Customer at least two (2) Business Days’ notice in advance;
  2. unscheduled maintenance performed outside Normal Business Hours, provided that Optibrium has used reasonable endeavours to give the Customer at least six (6) Normal Business Hours’ notice in advance; and
  3. emergency maintenance, which may be carried out at any time without notice to Customer which may reasonably be required to be performed by Optibrium to ensure the security, integrity or any other material functionality of the Semeta Software.
4. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Subscription Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or is otherwise illegal or causes damage or injury to any person or property; and Optibrium reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to the Subscription Services. The Customer shall not introduce or permit the introduction of any Virus into Optibrium’s network and information systems.
OPTIBRIUM’S OBLIGATIONS
1. Optibrium warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement and that it shall comply with Applicable Laws in relation to performing its obligations under this Agreement.
2. Optibrium is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Subscription Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3. No exclusivity of access to the Semeta Software is offered by Optibrium, and this Agreement shall not prevent Optibrium from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
CUSTOMER’S OBLIGATIONS
1. The Customer shall:
  1. provide Optibrium with all necessary co-operation, including all necessary access to such information as may be required by Optibrium, in relation to this Agreement in order for Optibrium to provide the Semeta Software, including security access information and configuration services;
  2. without affecting its other obligations under this Agreement, comply with all Applicable Laws and regulations with respect to its activities under this Agreement;
  3. provide timely and prompt co-operation and support to Optibrium in the provision of the Support Services, including:
    1. provision to Optibrium of appropriate, detailed and accurate documentation and other information which Optibrium requires and is necessary for Optibrium’s performance of the Services; and
    2. provision of appropriate facilities and access to suitably qualified and experienced personnel to assist Optibrium when and to the extent reasonably requested.
  4. carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner;
  5. be responsible for the accuracy and completeness of any Customer Data and shall ensure it has all the necessary consents and permissions in relation to the Customer Data and its use in conjunction with the Semeta Software;
  6. ensure that the Permitted Users use the Semeta Software and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Permitted User’s acts and omissions as though they are the acts and omissions of the Customer in relation to any breach of this Agreement;
  7. obtain and maintain all necessary consents and permissions (if any) for Optibrium to perform their obligations under this Agreement;
  8. ensure that its network and systems comply with the relevant specifications, including the access and security requirements, provided by Optibrium from time to time;
  9. be solely responsible for, and bear all associated costs for, the purchase, installation and running of hardware and software as required for the accessing the Subscription Services from time to time during the Term and for maintaining such minimal IT and communications infrastructure as required for the accessing of the Semeta Software; and
  10. be, to the extent permitted by Applicable Law and except as otherwise expressly provided in this Agreement, solely responsible, in relation to the Subscription Services, for procuring, maintaining and securing its network connections and telecommunications links from its systems to the data centres where the Subscription Services are hosted, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
CUSTOMER DATA
1. The Customer shall own all right, title and interest in and to all of the Customer Data that is not Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data. The Customer shall be solely responsible for backing-up Customer Data and Optibrium shall not be responsible for any loss of data or information, including the Customer Data.
2. The Customer warrants that (to the extent of its knowledge) the receipt and use of the Customer Data by Optibrium for the purposes of providing the Subscription Services shall not infringe the rights, including any Intellectual Property Rights, of any third party. The Customer shall defend and indemnify Optibrium in respect of a breach of this clause 2 from and against any and all losses, liability, damages, costs (including all reasonable legal costs) suffered by, incurred by or awarded against Optibrium howsoever caused or arising.
3. The Customer shall own all right, title and interest in and to any Results that are generated from Customer Data by the Semeta Software.
4. Each Party shall comply with its respective obligations under the Data Processing Schedule at Schedule 2 is in addition to, and does not relieve, remove or replace, each of the Parties obligations or rights under the Data Protection Legislation.
5. Customer warrants and represents that it has fully complied with its obligations under the Data Protection Legislation and has provided all notices, statements or otherwise in relation to Customer Personal Data and Customer shall ensure that it has a lawful and valid basis to process and use the Customer Personal Data in respect of Customer’s use of the Semeta Software.
CHARGES AND PAYMENT
1. In consideration for the provision of the Semeta Software, the Customer shall pay Optibrium the Subscription Fees and any Support Fees (together the “Fees”) in accordance with this clause 8.
2. Optibrium shall invoice the Customer in accordance with the payment terms set out in the Key Terms or such other terms notified to the Customer from time to time.
3. Customer shall pay each undisputed invoice within the time period specified in the Payment Terms in the Key Terms (the “Due Date”).
4. If Customer has a genuine dispute in respect of the whole or any part of any invoice (“Payment Dispute”), then it shall notify Optibrium of the nature of any such Payment Dispute in writing within fourteen (14) days of the date of the invoice and shall pay the undisputed part in accordance with this Agreement. The Parties shall co-operate in good faith to resolve the Payment Dispute as amicably and promptly as possible. On settlement of any Payment Dispute Customer shall make any payments due within five (5) days and in accordance with this Agreement.
5. If Optibrium has not received payment by the Due Date, and without prejudice to any other rights and remedies of Optibrium:
  1. Optibrium may, without liability to the Customer, disable the Customer’s account and access to all or part of the Subscription Services and Optibrium shall be under no obligation to provide any or all of the Subscription Services while any sums remain unpaid; and
  2. Optibrium shall be entitled to charge interest which accrues and compounds on a daily basis on such due amounts at an annual rate equal to four percent (4%) over the then current base lending rate of the Bank of England from time to time, commencing on the Due Date and continuing until fully paid, whether before or after judgment, which shall be payable on demand.
6. All amounts and Fees stated or referred to in this Agreement are non-cancellable and are exclusive of value added tax (“VAT”) and sales tax, which shall be added to Optibrium’s invoices at the appropriate rate.
7. All amounts due under this Agreement shall be paid by the Customer to Optibrium in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. For each Renewal Period, the Fees payable by the Customer for the licensed Semeta Software shall be equal to the then-current list price (as set by Optibrium from time to time) at the start of the Renewal Period unless otherwise agreed in writing between the Parties. If the Customer does not accept the adjusted Fees, the Customer shall be entitled to terminate this Agreement according to Clause 2.1 (such notice to take effect from the end of the Initial Term or the applicable Renewal Period, as the case may be).
PROPRIETARY RIGHTS
1. The Customer acknowledges and agrees that Optibrium and/or its licensors own all Intellectual Property Rights in the Semeta Software and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights, or any other rights or licences in respect of the Semeta Software or the Documentation.
2. Optibrium shall own all right, title and interest in and to any Insights that are generated from Customer’s use of the Semeta Software.
3. The Intellectual Property Rights in any material generated by Optibrium in the provision of, or in connection with, the Support Services shall become and remain vested in Optibrium.
4. For clarity, Optibrium shall be the sole owner in right, title and interest in any modifications, improvements or additional functionality made or created by Optibrium in relation to the Semeta Software and the Documentation, including any such modifications, improvements or additional functionality made or created by Optibrium as a result of any feedback given by Customer during the Term.
5. In the event the Software is found to infringe a third party’s intellectual rights, Optibrium may, at its option:
  1. obtain the right for the Customer to continue to use the Software;
  2. substitute with non-infringing equivalent of Software that still complies with the provisions of this Agreement;
  3. modify the Software so as to make it non-infringing but still complies with the provisions of this Agreement; or
  4. terminate this Agreement with immediate effect and provide the Customer with a pro-rated refund or credit of the Subscription Fees.
CONFIDENTIALITY
1. Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. A Party’s Confidential Information shall not be deemed to include information that:
  1. is or becomes publicly known other than through any act or omission of the receiving party;
  2. was in the other Party’s lawful possession before the disclosure;
  3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
  4. is independently developed by the receiving party, which independent development can be shown by written evidence.
2. Subject to clause 4, each Party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement and shall use at least the same level of protection as it uses to protect its own Confidential Information.
3. Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
4. A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 4, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
5. Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party which is not under the control of the relevant Party.
6. The Customer acknowledges that details of the Semeta Software and Documentation, and the results of any performance tests of the Subscription Services, constitute Optibrium’s Confidential Information.
7. Optibrium acknowledges that the Customer Data and Results are the Confidential Information of the Customer.
8. No Party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
9. The above provisions of this clause 10 shall survive for seven (7) years following termination of this Agreement, however arising.
INDEMNITY
1. The Customer shall defend and indemnify Optibrium and its Affiliates, employees, officers, servants, agents, sub-contractors and representatives, each an “Optibrium Indemnified Party”, against any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s access and use of the Semeta Software and/or Documentation in breach of this Agreement or otherwise any negligence or wilful misconduct of the Customer, except that the Customer shall make no such indemnification or defence to the extent that such claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) are the result of the negligence or wilful misconduct of an Optibrium Indemnified Party.
2. In respect of any claim brought or threatened against any Optibrium Indemnified Party which falls within the scope of the indemnity given by the Customer at clause 2 or 11.1:
  1. Optibrium will provide the Customer with prompt notice of any such claim and in any event within thirty (30) days of Optibrium becoming aware of such claim or suit; and
  2. Optibrium shall have the sole authority to defend or settle the claim referred to in this clause 2 (at the Customer’s cost) but shall endeavour to consider the Customer’s views on the claim (if any) and keep the Customer updated as to progress.
LIMITATION OF LIABILITY
1. Except as expressly and specifically provided in this Agreement:
  1. the Customer assumes sole responsibility for the use of the Semeta Software, the Documentation and the Results by the Customer, and for conclusions drawn from such use. Optibrium shall have no liability (in contract, tort, breach of statutory duty or otherwise) for any use by Customer of any Results obtained from the use of the Semeta Software, the Documentation or the Results, nor any conclusions drawn from such use. Optibrium shall have no liability (in contract, tort, breach of statutory duty or otherwise) for any damage caused by errors or omissions in any information, instructions or scripts provided to Optibrium by the Customer in connection with the Subscription Services, or any actions taken by Optibrium at the Customer’s direction;
  2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement including but not limited to merchantability, satisfactory quality or fitness for any particular purpose;
  3. Optibrium does not warrant that the use of the Semeta Software will be uninterrupted or error-free; and
  4. the Semeta Software and the content thereof and the Documentation are provided to the Customer on an “as is” basis.
2. Nothing in this Agreement excludes or limits either Party’s liability for death or personal injury caused by negligence; fraud or fraudulent misrepresentation; any liability which cannot legally be excluded or limited; or any breach of clause 9 or clause 10.
3. Subject to clause 1 and clause 12.2:
  1. Optibrium shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information (including Customer Data), or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
  2. Optibrium’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, including under any indemnity arising in connection with the performance or contemplated performance of this Agreement, shall be limited to the amount of the Subscription Fees paid to Optibrium in the twelve (12) months preceding the date of any such claim.
4. Notwithstanding anything to the contrary and in addition to any remedies available at law, it is agreed that a breach of the provisions of this Agreement by the Customer may cause irreparable damage to Optibrium for which recovery of monetary damages would be inadequate, and that Optibrium may seek, in any jurisdiction, interim injunctive or other equitable relief to protect its Confidential Information, Intellectual Property Rights and all other rights under this Agreement.
TERMINATION
1. Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
  1. the other Party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach to the reasonable satisfaction of the other Party within a period of thirty (30) days after being notified in writing to do so;
  2. the other Party has a receiver or administrative receiver appointed over it or over any part of its business or assets or passes a resolution for winding up (except for the purposes of a genuine scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect, or becomes subject to an administration order or enters into any voluntary arrangement with its creditors, or it ceases or threatens to cease to carry on a substantial part of its business or is otherwise deemed to be unable to pay its debts.
CONSEQUENCES OF TERMINATION
1. On termination of this Agreement for any reason:
  1. all rights and licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all activities authorised by this Agreement, including use of the Semeta Software and the Documentation;
  2. the Customer shall immediately pay to Optibrium any Fees due to Optibrium under this Agreement;
  3. each Party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other Party, in particular Optibrium shall destroy or otherwise dispose of any of the Customer Data or Results within five (5) Business Days of this Agreement being at an end. It is the responsibility of the Customer to download any Customer Data or Results from the Semeta Software prior to termination of the licences under this Agreement; and
  4. any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
2. Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in or come into force.
FORCE MAJEURE
1. Optibrium shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Optibrium or any other Party), failure of a utility service or transport or telecommunications network, act of God, epidemic or pandemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Optibrium’s or sub-contractors. Optibrium shall notify Customer promptly in writing of such an event and its expected duration and shall be entitled to a reasonable extension of time for performing its obligations.
PUBLICITY
1. Notwithstanding clause 10, neither Party shall make any press announcements or publicise the relationship between the Parties without the prior written consent of the other Party, which shall not be unreasonably withheld or unduly delayed.
2. In all Customer publications which include a reference to the Semeta Software and/or the Results and/or conclusions derived from the Customer’s use of the foregoing, in all cases to the extent permitted hereunder, Customer shall include an express acknowledgement of such use.
3. Subject to clause 1, Customer grants to Optibrium a non-transferable, non-exclusive, perpetual, worldwide, payment-free licence to use the Customer’s trade marks for marketing purposes, provided that such use of any trade marks is agreed between Optibrium and the Customer prior to their use.
DISPUTE RESOLUTION PROCEDURE
1. If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (“Dispute“), then the Parties shall follow the procedure set out in this clause:
  1. either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice“), together with relevant supporting documents. On service of the Dispute Notice, the senior managers of each Party shall attempt in good faith to resolve the Dispute;
  2. if the Project Managers are for any reason unable to resolve the Dispute within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to a member of each Party’s senior management team who shall attempt in good faith to resolve it; and
  3. if the representatives of each Party’s senior management team are for any reason unable to resolve the Dispute within 20 days of it being referred to them, the Parties agree to enter into mediation in good faith to settle the Dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the Parties within thirty (30) days of service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a Party must serve notice in writing (“ADR notice“) to the other Party to the Dispute, referring the dispute to mediation. Unless otherwise agreed between the Parties, the mediation will start not later than fourteen (14) days after the date of the ADR notice.
2. No Party may commence any court proceedings in relation to the whole or part of the Dispute until sixty (60) days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.
3. If the Dispute is not resolved within sixty (60) days after service of the ADR notice, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 27 in this Agreement.
VARIATION
If there is any error in a Quotation, Optibrium reserves the right to amend the Quotation by providing written notice to the Customer. Optibrium may vary any part of this Agreement by providing written notice to the Customer.
WAIVER
No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
SEVERANCE
1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
2. If any provision or part-provision of this Agreement is deemed deleted under clause 1 the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
ENTIRE AGREEMENT
1. This Agreement, together with the Quotation, constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2. Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
3. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
ASSIGNMENT
1. The Customer shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
2. Optibrium may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
THIRD PARTY RIGHTS
This Agreement does not confer any rights on any person or Party (other than the Parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
NOTICES
1. Any notice required to be given under this Agreement shall be in writing and shall sent by pre-paid first-class post, recorded delivery post or email to the other Party at its address notified by the Parties from time to time.
  1. In the case of Customer, the notice details as at the Effective Date are those specified in the Quotation.
  2. In the case of Optibrium, the notice details as at the Effective Date are as follows:
    Postal address: F10-13 Blenheim House, Cambridge Innovation Park, Denny End Road, Cambridge, United Kingdom, CB25 9GL
    Attention: CEO
    Email address: legal@optibrium.com
2. A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been delivered three (3) Business Days after deposit with any internationally recognised overnight courier, prepaid, for “next day” delivery. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the time-stamp obtained by the sender).
GOVERNING LAW AND JURISDICTION
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Subject to clause 17, each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1

SEMETA™ SPECIFICATION

Site of metabolism models for:
CYP3A4
CYP2C9
CYP2D6
CYP1A2
CYP2C19
CYP2E1
CYP2C8
UGT1A1
UGT1A4
UGT1A9
UGT2B7
AOX1
FMO1
FMO3
SULT
Regiolability model for CYP3A4
Metabolite generator
WhichP450™ model
WhichEnzyme™ model

SCHEDULE 2

SERVICE LEVELS

DEFINITIONS
In this Schedule 2, the following terms have the meanings set forth in this paragraph 1 (Definitions). Any capitalised terms used but not defined in this Schedule 2 will have the meanings ascribed thereto in the Agreement.
1. “Permanent Correction” means a resolution of an error that completely and permanently remedies such error without any degradation of performance or loss of functionality.
2. “Severity Level 1 Error” means any error that renders the Semeta Software or any material portion thereof inoperative, or materially impairs the Customer’s use of the Semeta Software in a production environment. Examples of Severity Level 1 Errors include, without limitation, situations in which the Semeta Software is inoperable and causing Permitted Users to experience a total loss of service, continuous or frequent instabilities, a frequent loss of connectivity or frequent inability to communicate as intended, an inability to process transactions, a failure of the Semeta Software to comply with Applicable Law, the creation of a hazard or emergency, or the inability to use a primary feature or function of the Semeta Software.
3. “Severity Level 2 Error” means any error that substantially impairs the Customer’s use of one or more material features or functions of the Semeta Software, which constitute less than a material portion thereof, in a production environment, or any error occurring in a testing or other non-production environment that, if occurring in a production environment, would constitute a Severity Level 1 Error. Examples of Severity Level 2 Errors include, without limitation, situations in which an error is causing intermittent impact to Permitted Users, loss of redundancy, loss of routine administrative or diagnostic capability, or inability to use a secondary feature or function of the Semeta Software.
4. “Severity Level 3 Error” means any error that has a minor impact on the performance or operation of the Semeta Software. Examples of Severity Level 3 Errors include, without limitation, an error having only a minor impact on users and errors seen in a test or other non-production environment that, if deployed in a production environment, would not constitute a Severity Level 2 Error.
5. “Work Around” means a resolution, fix, or procedural change with respect to an error that (i) remedies or circumvents such error on a temporary basis pending a Permanent Correction, (ii) causes the Semeta Software to operate without material loss of functionality or material degradation of performance and (iii) is reasonably acceptable to the Customer. Without limitation, a Work Around may consist of specific administrative steps, alternative programming or a temporary patch to the Semeta Software.
MAINTENANCE SERVICES
In consideration of the Subscription Fees, Optibrium shall provide the Customer with the following maintenance services:
1. Error Notification and Classification. When reporting an error to Optibrium, Customer shall identify the error as a Severity Level 1, 2, or 3 Error based on Customer’s initial evaluation of the error. If Optibrium becomes aware of a Severity Level 1 or 2 Error, Optibrium shall promptly notify Customer and identify the error as a Severity Level 1 or 2 Error based on Optibrium’s initial evaluation of the error, but in no event exceed the Initial Response performance levels set forth in paragraph 2.2 (Error Response and Resolution) of this Schedule 3. Optibrium and the Customer shall co-operate in good faith to jointly determine whether an error is a Severity Level 1, 2, or 3 Error; provided, however, that if Optibrium and the Customer cannot come to a joint determination despite such good faith cooperation, Optibrium’s determination shall prevail.
2. Error Response and Resolution. Promptly upon notification from the Customer of an error, Optibrium shall commence and diligently pursue correction of such error, at all times employing at least the level of effort (“Level of Effort”) designated in the chart set forth below (“Maintenance Chart”) and in all instances providing an initial response (“Initial Response”), Work Around and Permanent Correction to the Customer within the timeframes set forth in the Maintenance Chart, as measured from the earlier of the time that the Customer notifies Optibrium or Optibrium first becomes aware of an error. The Initial Response from Optibrium shall include, as applicable (i) Optibrium’s acknowledgment or notification to the Customer of such error, (ii) the classification of such error as either a Severity Level 1, 2, or 3 Error in accordance with paragraph
3. (Error Notification and Classification) of this Schedule 3, and (iii) Optibrium’s specific action plan for addressing and resolving the error, including a good faith estimate on how long it will take Optibrium to provide a Work Around and Permanent Correction. Optibrium shall provide the Customer with updates to the status of Optibrium’s efforts (“Status Updates”) by telephone, email or such other means as may be reasonably designated by Customer from time to time, no less frequently than the timeframes identified in the Maintenance Chart. The error response and resolution provisions of this Schedule 2 constitute the Customer’s sole and exclusive remedy in respect of errors reported by the Customer to Optibrium.
4. Technical Support. Optibrium shall establish, sufficiently staff and maintain the organisation and processes necessary to provide telephone and email based technical support, troubleshooting, error identification, isolation and remediation, and other assistance directly to Customer and its users to support the Customer’s use, deployment and validation of the Semeta Software during Normal Business Hours as necessary to support Optibrium’s obligations under this Schedule 3.

Severity Level	Level of Effort	Initial Response	Work Around	Permanent Correction	Status Update
1	Commercially reasonable efforts, during Normal Business Hours	1 Business Day	3 Business Days	Next release of Semeta Software	Every 1 Business Days prior to a Work Around
2	Commercially reasonable efforts, during Normal Business Hours	3 Business Days	5 Business Days	Next release of Semeta Software	Every 1 Business Days prior to a Work Around
3	Commercially reasonable efforts, during Normal Business Hours	3 Business Days	10 Business Days if a Work Around is possible	Next major release of Semeta Software if commercially reasonable	Every 3 Business Days prior to a Work Around or a determination that a Work Around is not possible

Maintenance Chart