THIS LICENSE AGREEMENT (“Agreement”) is entered into by the Swedish company BorgPerception AB, Hantverksvägen 81, SE-184 32 Åkersberga, Sweden (“BorgPerception AB”) and company as specified in corresponding purchase order (“Licensee”). The Agreement is entered into when a purchase order is submitted to BorgPerception AB to license a Borg scale (“Agreement Date”).
WHEREAS, pursuant to a license BorgPerception AB has the exclusive right to market, license, and sell the products and services of Dr. Gunnar Borg, including the Scale (as defined below), to end users all over the world.
WHEREAS, Licensee seeks to obtain a license to use the product as specified in this purchase order with instructions certified by Dr. Gunnar Borg and Dr. Elisabet Borg (together, the “Scale”) in the languages as specified in this purchase order (besides English and Swedish that are always included).
WHEREAS, BorgPerception AB desires to provide such license subject to and in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual promises and covenants herein contained, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. License. BorgPerception AB hereby grants to Licensee a limited, fully paid-up, non-exclusive, non-transferable right and license to use the Scale in the language(s) listed above in its research work or business. Other than the license set forth herein, Licensee obtains no ownership or other interest in the Scale or other rights, technology, or products of Dr. Borg.
2. Copies of the Scale. In connection with such license, BorgPerception AB agrees to provide Licensee with pdf-files of the Scale in the above language(s) as necessary for use in its research and/or clinical work or business. Printed copies shall be used solely for the work and pdf-files shall thereafter be destroyed. Only a printed archive copy may be kept for future reference. The same applies for electronic versions. Licensee shall not, nor shall it permit its affiliates to, resell any printed or electronic copies or derivations thereof.
2b. Publications. If the Borg CR10 Scale® is to be included in any publication of free academic research, a proper reference is required. Also, reprinting the Scale instruction is not permitted. Upon publication Licensee shall add the following text in the Figure text or in close connection to the Scale: “The Borg CR10 scale® (© Gunnar Borg, 1982, 1998, 2004). Scale printed with permission. The scale and full instruction can be obtained through BorgPerception AB: http://borgperception.se/ “
3. Compensation. In consideration for the license granted hereunder, and as a condition thereof, Licensee shall pay BorgPerception AB the fee as stated in the corresponding purchase order. The products shall be delivered to Licensee within 10 days after the fee has been received by BorgPerception AB. If at any time the scope of the research work is materially enlarged work beyond the currently anticipated parameters, Licensee shall provide notice to BorgPerception AB and negotiate with it for an increase in the licensing fee.
4. Ownership and Restrictions. The Scale and associated products and technology are protected by copyright and other intellectual property laws and international conventions. Licensee shall not, and shall not engage or knowingly permit others to: (a) use the Scale other than in its research work or business as described herein; (b) modify or otherwise amend the Scale; (c) prepare any derivative works based upon the Scale; (d) contest or challenge Dr. Gunnar Borg’s intellectual property rights in the Scale; (e) sell, assign, sublicense, transfer, or distribute the Scale or any rights of Licensee hereunder; or (f) modify, obscure, or remove any proprietary notices on the files described herein or any printed copies thereof.
5. Warranties and Disclaimers. BorgPerception AB represents and warrants to Licensee that BorgPerception AB (i) is under no obligation to any third party that would interfere with or limit the grant of the license or provision of the Scale described herein or require the consent of any third party for such grant of the license or provision of the Scale, and (ii) has right to grant the license to use the Scale to Licensee as set forth in this Agreement. BorgPerception AB represents and warrants that the copyright and other intellectual property rights to the Scale are owned by Dr. Gunnar Borg and that BorgPerception AB has the right to enter into and perform its obligations hereunder. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, BORGPERCEPTION AB MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SCALE, ITS USE, OR ANY RESULTS OBTAINED THEREBY, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
6. Indemnification. BorgPerception AB agrees to indemnify and defend Licensee against any claims, allegations, judgments, costs, liabilities, penalties, expenses (including, without limitation, reasonable attorneys’ fees), or other losses resulting from a claim or allegation by a third party that Licensee’s use of the Scale in a manner consistent with the terms of this Agreement violates the copyright or other intellectual property rights of such third party. Licensee agrees to indemnify and defend BorgPerception AB against any claims, allegations, judgments, costs, liabilities, penalties, expenses (including, without limitation, reasonable attorneys’ fees), or other losses resulting from a claim or allegation by a third party that Licensee’s use of the Scale in any manner, inconsistent with the terms of this Agreement (other than in connection with an intellectual property issue described in the preceding sentence) violates the rights of such third party.
7. Relationship of the Parties. In fulfilling its obligations pursuant to this Agreement, each party will be acting as an independent contractor. Nothing contained in this Agreement will be construed to place the parties in a relationship of employee and employer, partners, joint ventures, or principal and agent. The parties further agree that this Agreement shall not constitute a franchise agreement under Swedish or any other law. If the parties’ relationship is deemed to be a franchise by a court or other judicial body, the parties hereto expressly agree to waive all rights and remedies which either of them may have due to any status as a franchisor or franchisee or pursuant to the application of any franchise laws, rules, or regulations.
8. Other Transactions. Nothing contained herein shall preclude BorgPerception AB from developing, using, licensing, or selling products or services to third parties that are similar in function, design, or otherwise to those provided hereunder.
9. Termination of subscription. Subscription may be terminated by either party at the latest 1 moth before the beginning of a new subscription period. Upon termination of this Agreement, Licensee shall destroy all copies of the scale. See also section 2. Copies of the Scale.
10. Limitation of Liability. In no event shall BorgPerception AB be liable for any damages arising out of this agreement, other than damages arising out of any breach by BorgPerception AB of its warranties under Section 5 of this Agreement.
11. Miscellaneous. In performing this Agreement, each party covenants that it will comply with all applicable federal, state or local laws, regulations, rules, orders, and other governmental decrees. Any failure by a party to require strict compliance with any term of this Agreement will not constitute a future waiver of such term. No waiver will be enforceable unless embodied in a writing signed by the waiving party. This Agreement may not be modified except by a written instrument signed by the parties. The invalidity of any term of this Agreement shall not affect the validity of any other term and such invalid term shall be subject to partial enforcement to the extent permitted under applicable law. No party shall have the right to assign this Agreement without the prior written consent of the other parties. This Agreement shall inure to the benefit of and be binding upon the parties and their permitted successors and assigns. In the event of any suit or proceeding regarding this Agreement, the prevailing party shall be entitled to an award of its attorneys’ fees in connection with same. No suit, action, or other proceeding, regardless of form, arising out of this Agreement, may be brought by either party more than three (3) years from the Agreement Date. BorgPerception AB shall not disclose to any third party the details of this Agreement or the reason for which the Licensee has entered into this Agreement.