Enthought Microrheology Lab License Agreement

SOURCE CODE LICENSE AGREEMENT



BY OPENING THIS PACKAGE OR USING THE SOFTWARE (AS DEFINED
BELOW), YOU ARE INDICATING THAT YOU HAVE READ, AND AGREE TO
BE BOUND BY, THE POLICIES, TERMS, AND CONDITIONS SET FORTH
BELOW (THIS "AGREEMENT") IN THEIR ENTIRETY WITHOUT
LIMITATION OR QUALIFICATION, AS WELL AS BY ALL APPLICABLE
LAWS AND REGULATIONS, AS IF YOU HAD HANDWRITTEN YOUR NAME
ON A CONTRACT.  IF YOU DO NOT AGREE TO THESE TERMS AND
CONDITIONS, DO NOT USE THE SOFTWARE.  The Software is
provided by Enthought, Inc., a Delaware corporation, with a
principal place of business at 515 Congress Avenue, Suite
2100, Austin, Texas, 78701 ("Licensor").  "Licensee" means
you and, if you are using the Software on behalf of an
educational institution, "Licensee" includes the
educational institution, its regents, officers, employees,
agents, representatives, successors and assigns.



	In consideration of the mutual covenants contained
herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:



1.	DEFINITIONS



1.1	"Documentation" shall mean all information relating
to the operation and functionality of the Software that is
in existence as of the Effective Date.



1.2	"Effective Date" shall mean the first date of your
use of the Software.



1.3	"Modification" shall mean any alteration,
modification, customization, enhancement, adaptation,
invention, translation, improvement, design, idea, report,
computer program or other information (whether or not
patentable or otherwise protectable), whether in object
code, source code or any other form, together with all
intellectual property rights associated therewith, related
to or concerning the Software developed by or on behalf of
Licensee, or by or on behalf of any consultant or agent of
Licensee, that Licensee shall design and develop with or
without any assistance from Licensor and which extends the
capabilities of the Software as delivered by Licensor. 



1.4	"Residuals" shall mean any information retained in
the unaided memories of the receiving party's employees who
have had access to the disclosing party's Proprietary
Information pursuant to the terms of this Agreement.  An
employee's memory is unaided if the employee has not
intentionally memorized the information for the purpose of
retaining and subsequently using or disclosing it to a
third party.  Subject to the terms and conditions of this
Agreement, the receiving party's employees shall not be
prevented from using Residual information as part of the
employee's skill, knowledge, talent or expertise on future
projects.



1.5	"Software" shall mean Licensor's Enthought
MicroRheology Lab computer software program and any and all
other software identified in the Existing Agreement,
together with all related HTML files, Java files, graphics
files, animation files, data files, scripts, security
devices, updates, current bug fixes or patches or any other
modifications to such program which have been made by
Licensor as of the Effective Date of this Agreement.



1.6	"Source Code" shall mean the source language code
(human-readable program instructions) for the Software as
it exists as of the Effective Date together with any
documentation (technical or otherwise) which exists as of
the Effective Date and would enable a reasonably skilled
computer programmer or analyst to maintain or change the
Source Code without the aid of Licensor.



1.7	"Term" shall have the meaning set forth in Section
4.1. 



2.	GRANT OF LICENSE



2.1	Grant.  Licensor hereby grants to Licensee an
non-exclusive license to (i) use the Source Code for
Licensee's internal instruction and research, and (ii)
copy, reproduce, enhance, modify or create derivative works
from, or otherwise make Modifications to, the Software,
subject to the terms and conditions of this Agreement.
Under no circumstances shall Licensee sell, transfer or
otherwise convey any interest in the Source Code to a third
party, in whole or in part, without Licensor's prior
written consent and any such attempted transfer is void ab
initio.



2.2	Ownership of Software.  Licensee acknowledges that,
subject to the terms and conditions of this Agreement, all
right title and interest in and to the Software, including
any intellectual property represented thereby or therein,
including without limitation patents, copyrights,
trademarks, service marks and trade secrets, are and shall
be owned exclusively by Licensor.  Other than as set forth
in this Agreement, Licensee shall acquire no rights to any
Software after the Effective Date.  The license granted
herein is not a sale of the Software.



2.3	Ownership of Modifications.  Licensee acknowledges
that all right, title and interest in and to any
Modifications, including any intellectual property
represented thereby or therein, including without
limitation patents, copyrights, trademarks, service marks
and trade secrets, are and shall be owned exclusively by
Licensor.  All modifications shall be deemed to be "works
made for hire" as defined in the United States Copyright
Act (17 U.S.C. s 100, et. seq.) and all rights therein
shall immediately vest in Licensor.  If any rights do not
automatically vest in Licensor, Licensee hereby irrevocably
assigns, conveys and sells to Licensor its right, title,
and interest in and to all Modifications, if any, including
all applicable intellectual property rights thereto. 



2.4	Residuals.  Either party may use Residuals for any
purpose, including, for example, use in the development,
manufacture, promotion, sale and maintenance of its
products and services provided, however, that this right to
use Residuals does not (i) infringe any intellectual
property right of the disclosing party including, without
limitation, any patent, copyright, trademark, service mark
or trade secret, or (ii) result in or amount to a license
under any patents, copyrights or trademarks, of the
disclosing party.  



2.5	Trademarks and Publicity.  Each party acknowledges
that it will acquire no rights in any trademarks, service
marks, trade names or logos of the other party pursuant to
this Agreement and that such marks are and shall remain the
exclusive property of such other party.  Except as
otherwise provided herein, nothing contained in this
Agreement shall be construed as conferring any right to use
in advertising, publicity or other promotional activities
any name, trade name, trademark, or other designation
(including any contraction, abbreviation, or simulation of
any of the foregoing) of the other party without the
express written approval of such other party.



3.	FEES AND PAYMENTS



3.1	License Fee.  The parties acknowledge that the
mutual covenants set forth herein constitute adequate and
sufficient consideration for the rights granted pursuant to
this Agreement.



3.2	Taxes.  Licensee agrees that it shall have sole
responsibility for the payment of any income taxes, sales
and use taxes or any value added or similar taxes payable
with respect to or associated with the license granted
herein. 



4.	TERM AND TERMINATION



4.1	Term.  The term of this Agreement shall commence on
the Effective Date and shall extend for a period of one (1)
year unless earlier terminated as provided in this Section
4 (the "Term").  Thereafter, the term shall automatically
renew for successive one (1) year periods unless one party
notifies the other in writing within 30 days of the end of
the then current term of its intention not top renew.



4.2	Remedy on Breach.   In the event of a material
breach of this Agreement, the non-breaching party shall
give written notice of the material breach to the breaching
party.  Upon receipt of such notice, the breaching party
shall have thirty (30) days from the date of actual receipt
of the written notice to cure such breach.  If the
breaching party is unable to cure such breach within thirty
(30) days, then the parties shall seek to resolve the
matter as provided in Section 9 of this Agreement.



4.3	Effect of Termination. Each party agrees to pay the
fees, costs, and expenses (including attorneys' fees and
expenses) reasonably incurred by the other party in
connection with or related to the other party's enforcement
of its rights under this Agreement or as a result of any
material breach by the other party of its obligations under
this Agreement.



4.4	Survival.  Sections 1 (Definitions), 2.2 (Ownership
of Software) 2.3 (Ownership of Modifications), 2.4
(Residuals), 4.4 (Survival), 5 (Representations and
Warranties), 6 (Indemnifications), 7 (Confidentiality), 8
(Remedies), 9 (Dispute Resolution) and 10 (General
Provisions) shall survive any expiration or termination of
this Agreement.



5.	REPRESENTATIONS AND WARRANTIES



5.1	No Infringement.  Licensor represents and warrants
to Licensee that it has the full legal right to license the
Source Code in accordance with this Agreement and that
there is no claim, litigation or proceeding pending or
threatened against Licensor with respect to the Source Code
or any component thereof alleging infringement or
misappropriation of any patent, copyright, trade secret or
any other proprietary right of any third party.



5.2	No Disabling Codes.  Licensor represents and
warrants that the Source Code and the media used to
distribute it will, at the time and form of delivery by
Licensor to Licensee, be free of (i) any computer code or
instructions that may disrupt, damage, or interfere with
Licensee's use of its computer and/or telecommunication
facilities for their commercial purposes, and (ii) devices
that are capable of automatically or remotely stopping the
Source Code from operating (e.g., passwords, fuses, and
time bombs, etc.).



5.3	Other Warranties.   Licensor represents and
warrants that: (a) it has full power and authority to
execute, deliver and perform its obligations under this
Agreement; (b) there are no actions, proceedings or
investigations, pending or, to the best of its knowledge,
threatened against Licensor which may in any manner
whatsoever materially affect the enforceability of this
Agreement or the  rights, duties and obligations hereunder;
and (c) the execution, delivery and performance of this
Agreement will not constitute a breach or default under any
agreement, law or court order under which Licensor is a
party or may be bound or affected by or which may affect
the rights, duties and obligations hereunder.



5.2	Limitation of Liability.  NEITHER PARTY SHALL HAVE
ANY LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE
DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.  IN ANY EVENT, THE LIABILITY
OF EACH PARTY TO THE OTHER FOR ANY REASON AND UPON ANY
CAUSE OF ACTION SHALL BE LIMITED TO THE FEES PAID BY
LICENSEE PURSUANT TO THE EXISTING AGREEMENT.  THIS
LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE
AGGREGATE, INCLUDING WITHOUT LIMITATION, TO BREACH OF
CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY,
MISREPRESENTATION, AND OTHER TORTS.  BOTH PARTIES
UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS
HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE
NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE
UNIFORM COMMERCIAL CODE AND OF OTHER APPLICABLE LAWS. 



6.	INDEMNIFICATIONS



6.1	Licensee Indemnification.  Licensee shall defend,
indemnify and hold harmless Licensor from and against any
claims, demands, causes of action, expenses, damages,
losses, costs, fees, royalties, or penalties (including
reasonable attorneys' fees) (collectively, "Claims") to the
extent any such Claim arises out of Licensee's breach of
any representation, warranty or obligation under this
Agreement.  Licensee may, at its sole option, conduct the
defense in any such third party action arising as described
herein and Licensee promises fully to cooperate with such
defense at Licensor's expense. This provision shall survive
any expiration or termination of this Agreement.



7.	CONFIDENTIALITY



7.1	Licensor Proprietary Information.  Licensee agrees
and acknowledges that it will be exposed to the Source Code
and that the Source Code contains valuable trade secrets of
Licensor embodying substantial creative efforts and
confidential information, ideas and expressions ("Licensor
Proprietary Information").  All Licensor Proprietary
Information and any related intellectual property therein
or represented thereby will remain the sole property of
Licensor and Licensee will have no interest in or rights to
such Licensor Proprietary Information except as expressly
granted by this Agreement.



7.2	Licensee Proprietary Information.  Licensor agrees
and acknowledges that it may be exposed to the
Modifications or information concerning Licensee's
businesses, products, proposed products, plans, strategies,
customers and related information, including without
limitation, customer data, testing procedures and pricing
policies, along with the record-bearing media containing
such information, all of which may constitute confidential
and proprietary information of Licensee ("Licensee
Proprietary Information") and that the License Proprietary
Information is a source of independent economic value,
actual or potential.  All Licensee Proprietary Information
will remain the sole property of Licensee except as
otherwise expressly set forth in this Agreement.



7.3	Non-Disclosure.  Licensor and Licensee agree to
maintain the Licensee Proprietary Information and the
Licensor Proprietary Information (collectively, the
"Proprietary Information") in strict confidence and that it
will use reasonable commercial efforts (at least the same
measure of care used to protect its own confidential and
proprietary information) to protect the other party's
Confidential Information.  Neither party shall disclose the
Source Code to any third party without (a) the prior
express written consent of the other party to this
Agreement, which consent shall not be unreasonably
withheld, and (b) the prior execution by such third party
of an agreement to maintain the confidentiality of the
Source Code.  Without limiting the generality of the
foregoing, Licensor and Licensee each agree:



(a)	Not to disclose or permit any other person or
entity access to the Proprietary Information, except that
such disclosure or access shall be permitted to an
employee, agent, representative or independent contractor
of either party requiring access to the same in the course
of his or her employment or services; provided that such
employee, agent, representative or independent contractor
has previously entered into a written confidentiality
Agreement including terms as least as restrictive as those
contained herein;



(b)	To ensure that its employees, agents,
representatives and independent contractors are advised of
the confidential nature of the Proprietary Information, and
are precluded from taking any action prohibited under this
Section; and



(c)	Not to alter or remove any identification,
copyright or proprietary rights notice which indicates the
ownership of any part of the Proprietary Information.



7.4	Exclusions.  Nothing in this Section shall restrict
either party with respect to information or data identical
or similar to that contained in the Proprietary Information
which a party can demonstrate (a) that a party rightfully
possessed before it received such information from the
other as evidenced by written documentation; (b)
subsequently becomes publicly available through no fault of
that party; (c) is subsequently furnished to that party by
a third party which party is not under restriction on use
or disclosure; (d) is required to be disclosed by law,
provided that the disclosing party will exercise reasonable
efforts to obtain a protective order or other reliable
assurance that confidential treatment will be accorded to
the Proprietary Information; or (e) was independently
developed by either party as evidenced by written
documentation.



7.5	Notification of Licensor.  If Licensee becomes
aware of any act by any of its officers, directors,
employees, agents or representatives which is in violation
of any of the terms of this Agreement, including but not
limited to, the use, disclosure, or copying of the Software
or any portion thereof, Licensee shall notify Licensor
immediately and, in cooperation with Licensor, shall take
all steps necessary to remedy any actual or threatened
noncompliance to the reasonable satisfaction of Licensor.
This provision shall not in any way limit any of the
remedies otherwise available to Licensor for breach of this
Agreement, or limit Licensee's liability for failing to
comply with the provisions of this Agreement.



8.	REMEDIES



8.1	Nonexclusive Remedy.  Except as otherwise provided
herein, no remedy made available to either party hereto by
any of the provisions of this Agreement is intended to be
exclusive of any other remedy and each and every remedy
shall be cumulative and shall be in addition to every other
remedy given hereunder or existing at law or in equity.



8.2	Breach.  The parties acknowledge that a breach of
this Agreement through disclosure or misuse of Confidential
Information will have an irreparable, material and adverse
effect upon the party owning such information and that
damages arising from any such breach may be difficult to
ascertain.  In the event of a breach of the confidentiality
obligation of Section 7 of this Agreement, the
non-breaching party shall have the right to seek an
immediate injunction enjoining the breach as determined by
a court of competent jurisdiction.



8.3	Action Prior to Commencing Suit.  If a disagreement
arises between the parties, each party agrees that, prior
to sending a formal demand letter or filing a lawsuit, each
party will act in good faith and will designate an officer
to be responsible for resolving the dispute by agreement.
Unreasonable delay on the part of an officer to respond to
the other party will indicate that agreement is not
achievable.



8.4	Bankruptcy.  All rights and licenses granted under
or pursuant to this Agreement by Licensor to Licensee are
and shall be deemed to be, for purposes of Section 365(n)
of the Bankruptcy Code, licenses of rights to "intellectual
property" as defined under Section 101(35A) of the
Bankruptcy Code.  Licensee, as a licensee of such rights
under this Agreement, shall retain and may fully exercise
all of its rights and elections under the Bankruptcy Code.



9.	DISPUTE RESOLUTION



9.1	Condition Precedent.  If a claim or controversy
between the parties is not resolved for any reason, the
authorized representatives of Licensor and Licensee shall
meet within 30 days thereafter to review and discuss such
claim or controversy and attempt, in good faith, to settle
or resolve the matter.  Compliance with the provisions of
this paragraph shall be a condition precedent to any claim
in an arbitration, judicial, or other dispute resolution
process. 



9.2	Arbitration.  Any controversies or disputes arising
out of or relating to this Agreement that cannot be
resolved by the parties' authorized representatives shall
be resolved by binding arbitration in accordance with the
then current Commercial Arbitration Rules of the American
Arbitration Association.  The parties shall endeavor to
select a mutually acceptable arbitrator knowledgeable about
issues relating to the subject matter of this Agreement.
In the event the parties are unable to agree to such a
selection, each party will select an arbitrator and the two
arbitrators shall in turn select a third arbitrator.  The
arbitration shall take place in Travis County, Texas.
During the course of any arbitration proceeding, Seller
shall continue to perform its obligations to Purchaser
under this Agreement.



9.3	Document Review.  All documents, materials, and
information in the possession of each party that are in any
way relevant to the claims or disputes shall be made
available to the other party for review, inspection and
copying no later than sixty (60) days after the notice of
arbitration is served.



9.4	Arbitrator's Authority.  The arbitrators shall not
have the authority, power, or right to alter, change,
amend, modify, add, or subtract from any provision of this
Agreement.  The arbitrators shall have the power to issue
mandatory orders, restraining orders, and injunctions in
connection with the arbitration. The award entered by the
arbitrators shall be final and binding upon the parties,
and judgment may be entered thereon in any court of
competent jurisdiction.  



10.	GENERAL PROVISIONS



10.1	Governing Law.  This Agreement has been negotiated,
executed and delivered at and shall be deemed to have been
made in Texas.  This Agreement shall be governed by and
construed in accordance with the domestic laws of the State
of Texas without giving effect to any choice or conflict of
law provision or rule (whether of the State of Texas or any
other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Texas.



10.2	Consent to Jurisdiction and Forum.  The parties
hereto hereby consent and agree that the District Court of
Travis County, Texas or, at the Licensee's option, the
United States District Court for the Western District of
Texas, shall have exclusive jurisdiction to hear and
determine any claims or disputes between the parties hereto
pertaining to this Agreement or to any matter arising out
of or related to this Agreement.  The parties hereto
expressly submit and consent in advance to such
jurisdiction in any action or suit commenced in any such
court, and hereby waive any objection which it may have
based upon lack of personal jurisdiction, improper venue or
forum non conveniens and hereby consent to the granting of
such legal or equitable relief as is deemed appropriate by
such court.  Each party hereto irrevocably consents to the
service of process by registered or certified mail, postage
prepaid, to it at its address given pursuant to this
Agreement.  Nothing in this Agreement shall be deemed or
operate to affect the right of either party to serve legal
process in any other manner permitted by law, or to
preclude the enforcement by either party of any judgment or
order obtained in such forum or the taking of any action
under this Agreement to enforce same in any other
appropriate forum or jurisdiction.



10.3	Construction.  The parties have participated
jointly in the negotiation and drafting of this Agreement.
In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as
if drafted jointly by the parties and no presumption or
burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any of the provisions
of this Agreement.  Whenever the context of this Agreement
requires, the gender of all words herein shall include the
masculine, feminine, and neuter, and the number of all
words herein shall include the singular and plural.  All
references to section numbers in this Agreement shall be
references to sections in this Agreement, unless otherwise
specifically indicated.  The captions used herein are for
convenience only and are not to be considered in the
construction of this Agreement.  



10.4	Amendments; Waiver.  This Agreement may be amended
from time to time only by written agreement of the parties.
No term or provisions of this Agreement may be waived or
modified unless such waiver or modification is in writing
and signed by the party against whom such waiver or
modification is sought to be enforced.  No failure on the
part of any party to exercise and no delay in exercising,
any right, power, or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or
partial exercise of any right under this Agreement preclude
any other or further exercise thereof or the exercise of
any other right.  The remedies provided in this Agreement
are cumulative and not exclusive of any remedies provided
by law.  



10.5	Entire Agreement.  This Agreement and the Term
Sheet are the entire agreement of the parties with respect
to the subject matter therein, and supersedes all prior
agreements between them, whether oral or written, of any
nature whatsoever with respect to the subject matter
hereof.  No amendment, alteration, or modification of this
Agreement or the Term Sheet shall be valid unless in each
instance such amendment, alteration, or modification is
expressed in a written instrument duly executed by the
parties hereto.



10.6	Severability.  If any provision of this Agreement
is held by final judgment of a court of competent
jurisdiction to be invalid, illegal or unenforceable, such
invalid, illegal or unenforceable provision shall be
severed from the remainder of this Agreement, and the
remainder of this Agreement shall be enforced.  In
addition, the invalid, illegal or unenforceable provision
shall be deemed to be automatically modified, and, as so
modified, to be included in this Agreement, such
modification being made to the minimum extent necessary to
render the provision valid, legal and enforceable.
Notwithstanding the foregoing, however, if the severed or
modified provision concerns all or a portion of the
essential consideration to be delivered under this
Agreement by one party to the other, the remaining
provisions of this Agreement shall also be modified to the
extent necessary to equitably adjust the parties'
respective rights and obligations hereunder.



10.7	Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be
deemed to have been duly given, if delivered in person or
by courier, by facsimile transmission, by first class U.S.
mail, postage prepaid, or by e-mail to the addresses shown
below.  If notice is mailed by first class U.S. mail, such
notice shall be deemed to be delivered three business days
after such notice was deposited with the U.S. Postal
Service.  If by e-mail, an e-mailed notice is deemed
received 24 hours after the notice is electronically
transmitted to the recipient's e-mail address.  If the
sending party receives notification within that period of
time that such notice was undeliverable, sending party
shall make commercially reasonable efforts to contact the
intended recipient by telephone to correct the problem and
to resend the notice by e-mail.  If the sending party is
unable to contact the intended recipient by telephone or
resend the notice by e-mail, the sending party shall send
such notice by first class U.S. mail, or by another method
provided in this Section.  Each party will give the other
at least 10 days prior written notice if such e-mail
address changes, and the sending party will not be liable
to the receiving party if the receiving party changes such
e-mail address without informing the other party.



10.8	Authority to Sign.  The parties represent and
warrant that each person signing this Agreement in a
representative capacity has the authority to sign on behalf
of all of the entities and persons for whom he is signing
and that he and the represented entities and persons are
empowered to enter into and to perform this Agreement.



10.9	No Reliance. Each party expressly warrants and
represents and does hereby state and represent that no
promise or agreement which is not herein expressed has been
made to such party in executing this Agreement, and that no
party is relying upon any statement or representation of
any other party, its agents or its representatives, of the
parties.  Each party represents and warrants that it is
relying on its own judgment and each has been represented
by legal counsel in this matter.  Each party represents and
warrants that it has had its legal counsel read and explain
to it the entire contents of this Agreement in full, as
well as the legal consequences of this Agreement.



10.10	Conflicts.  In the event of any conflict between
the terms of this Agreement and the terms of any written
agreement between the parties, the terms of this Agreement
shall govern and control for all purposes.