SOFTWARE EVALUATION AGREEMENT

This Software Evaluation Agreement (the “Agreement”) is entered into as of today (the “Effective Date”) by and between NewLink Genetics Corporation, an Iowa corporation, with offices at 2901 South Loop Drive, Suite 3900, Ames, Iowa  50010 (“NewLink Genetics ”), and the party identified below (“Licensee”).

  1. Software.  The terms and conditions of this Agreement apply to the following NewLink Genetics software products and related documentation (the “Software”) that NewLink Genetics will provide to Licensee solely for evaluation purposes:  GeneSeqerNL .
  2. Evaluation License Grant. During the  Evaluation Period (as defined in Section 7 below) and subject to Licensee’s compliance with the terms and conditions of this Agreement, NewLink Genetics grants to Licensee a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to install and use the Software, in object code form only, and related documentation for the sole purpose of evaluating the Software in order to assist in Licensee’s decision to purchase a license.
  3. Restrictions.  Licensee may not use or copy the Software, or any copy thereof, in whole or in part, except for internal evaluation purposes as expressly provided for in this Agreement.  Licensee may not install, copy, reproduce or use the Software on more than one (1) CPU.  Licensee shall not, nor shall it permit, assist or encourage any third party to:  (a) modify, adapt, alter, translate or create derivative works from the Software; (b) merge the Software with other software; (c) sublicense, lease, rent, or loan the Software, or otherwise transfer the Software to any third party; (d) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (e) remove, obscure or alter NewLink Genetics’s copyright notices, trademarks or other proprietary rights notices affixed to or contained within the Software; or (f) otherwise exercise rights to the Software except as expressly allowed under Section 2.
  4. Ownership.  As between the parties, the Software and the documentation, and all worldwide intellectual property rights and proprietary rights to the foregoing, are the exclusive property of NewLink Genetics and its suppliers. NewLink Genetics and its suppliers reserve all rights in and to the Software not expressly granted to Licensee in this Agreement, and no other licenses or rights are granted by implication, estoppel or otherwise.
  5. No Support.  NewLink Genetics shall have no obligation under this Agreement to correct any bugs, defects or errors in the Software or to otherwise support or maintain the Software.
  6. Expenses.  Each party shall bear all expenses that it may incur in connection with this Agreement.
  7. Term; Termination.  This Agreement is effective on the Effective Date and shall continue for 15 days (the “Evaluation Period”) unless sooner terminated by either party.  Either party may terminate this Agreement, with or without cause, immediately upon written notice to the other party.  Upon the expiration or any termination of this Agreement, the license granted to Licensee will terminate and Licensee, at its expense, will promptly delete all installed Software, return all copies of the Software and all Confidential Information in its possession to NewLink Genetics.  The provisions of Sections 3, 4, 7, 8, 9, 10 and 13 shall survive termination or expiration of this Agreement for any reason.
  8. Confidentiality. “Confidential Information” means the Software, all information provided by NewLink Genetics about the Software, and all information provided by NewLink Genetics that is clearly marked or identified as confidential or disclosed under circumstances that would lead a reasonable person to believe such information is confidential. Licensee shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than as expressly permitted in this Agreement. Licensee agrees that it shall treat all Confidential Information with the same degree of care as it accords to its own confidential information which, in no event, shall be less than reasonable care. Licensee shall not disclose the existence of this Agreement, its terms and conditions, or any of the activities pursued hereunder without NewLink Genetics’s prior written consent.
  9. Disclaimer.   The Software provided by NewLink Genetics to Licensee is provided “AS IS” without any warranty of any kind whatsoever. NewLink Genetics hereby expressly disclaims all warranties with regard to the Software, whether express, implied, statutory or otherwise, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and any warranties arising out of course of dealing or course of performance. NewLink Genetics does not warrant that the Software will operate without interruption or error.  Licensee acknowledges that no warranties are made by any of NewLink Genetics’ licensors or suppliers.
  10. Limitation of Liability. In no event will NewLink Genetics be liable for any consequential, indirect, exemplary, special or incidental damages, including any lost data and lost profits, arising from or relating to the Software or this Agreement, even if NewLink Genetics has been advised of the possibility of such damages. The total cumulative liability of NewLink Genetics arising out of or relating to this Agreement and the Software, whether in contract or tort or otherwise, will not exceed the amount paid to NewLink Genetics by Licensee pursuant to this Agreement.  NewLink Genetics also disclaims all liability of any kind of NewLink Genetics’s suppliers and licensors.
  11. U.S. Government End Users. The Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein.
  12. Compliance With Laws.  Licensee shall comply with all laws, regulations, rules, ordinances and orders applicable to its use of the Software.  Without limiting the foregoing, Licensee shall comply with the relevant export administration and control laws and regulations, as may be amended from time to time, including, without limitation, the United States Export Administration Act, to ensure that the Software is not shipped, transferred or exported (directly or indirectly) in violation of U.S. law.
  13. Miscellaneous. This Agreement will be interpreted in accordance with the laws of the State of Iowa, without regard to its conflicts of laws principles. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party. Any attempted assignment or transfer in violation of the foregoing will be void. Notwithstanding the foregoing, NewLink Genetics shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any notice required or permitted by this Agreement will be in writing and will be deemed effective upon receipt, when sent by confirmed email or when delivered in person or mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as such party may specify in writing. In case any provision of the Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. This Agreement may be amended or modified only upon the mutual written consent of NewLink Genetics and Licensee. No failure of either party to enforce any of its rights under this Agreement will act as a waiver of those rights. This Agreement constitutes the entire understanding and agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements and understandings, whether written or oral.