LIMITED USE LICENSE AGREEMENT
This Limited Use License Agreement, “the Agreement”, together with any executed ordering document, and any documents expressly incorporated into these terms by reference, constitutes a legal agreement effective as of the date of installation (the “Effective Date”) between you (“you”) and Spiral Genetics, Inc., a Delaware corporation (“Spiral” or “us”)(each a “Party” and collectively “The Parties”). This agreement governs all access to and use of all software provided to you by Spiral.
PLEASE READ THIS LICENSE CAREFULLY BEFORE INSTALLING THE SOFTWARE.
This Agreement may be accepted by either indicating your acceptance by clicking the box presented to you or by accessing or using any part of the software. If you do not agree with the terms and conditions of this Agreement, please do not install the software and contact your Spiral Genetics representative for alternate arrangements. If you are accepting on behalf of another person or entity, then you represent and warrant that you have the authority to bind that person or entity, you have read and understood this Agreement, and you agree to the terms and conditions herein on behalf of that person or entity.
General: Spiral owns or otherwise has rights in certain algorithms and Software programs related to genome sequence assembly called “Anchored Assembly” and “Onco Assembly”.
Purpose: You would like to evaluate the use of the Spiral Genetics Software that includes Anchored Assembly and Onco Assembly.
Use: As provided herein, Spiral is willing to provide a limited use license for you to use the Anchored Assembly and Onco Assembly.
For the purposes of this Agreement, the following capitalized terms will have these meanings:
“Algorithms” means the genome assembly and structural variant finding algorithms that are part of Spiral’s marketed Anchored Assembly software.
“Enhancements” means all improvements, bug fixes, error corrections, updates and other modifications that may be provided by Spiral that relate to the Algorithms.
“Information” means the genomic Information.
“Purchase Order” means the written agreement between you and Spiral which establishes, the conditions upon which the Software will be tendered to you whether for payment or other consideration.
“Software” means all tools and items provided by Spiral including but not limited to (1) Anchored Assembly; (2) Onco Assembly; and (3) any related software or services.
3. License Grant
Field of Use. THE SOFTWARE IS LICENSED FOR RESEARCH PURPOSES ONLY. Any use of the Software in medical diagnosis or purposes other than research are strictly prohibited under both federal law and this Agreement. Such use shall constitute a breach of this Agreement and shall relieve Spiral of all duties and obligations under this Agreement.
License Grant. Subject to the terms and conditions set forth herein, Spiral hereby grants to you, a limited, non exclusive, non-transferable, license during the Term hereof to use the Software, Algorithms and any Enhancements for your own, internal research. Any third-party accessing or utilizing the Software provided to you will be subject to this Agreement and any unauthorized use or breach of this Agreement will be imputed to you as the Licensee. No right to grant sublicenses or to transfer the Software, Algorithms or Enhancements to any third party is granted hereunder.
Maintenance and Support. Spiral shall not be obligated to maintain or support the Software, Algorithms and Enhancements.
Ownership. Spiral retains all right, title and interest in the Software including the Algorithms, the Enhancements, and related documentation. You shall have no rights with respect to the Algorithms, the Enhancements except as specifically set forth in this Agreement. Accordingly, the following restrictions apply:
The Software contains copyrighted material, trade secrets and other proprietary material. In order to protect them, and except as permitted by applicable legislation, you may not:
decompile, reverse engineer, disassemble or otherwise reduce the Software to a human-perceivable form;
modify, network, rent, lend, loan, distribute or create derivative works based upon the Software in whole or in part.
Payment. Your use of the Software is expressly conditioned on satisfaction of any terms of payment established in the Purchase Order or any alternative arrangements you have made with Spiral for the use of the Software. Additional fees may be imposed for either unauthorized use or use in access of any use limitations imposed in the Purchase Order.
Additional Use Restrictions. Use of the licensed Software may be further limited by the terms of any Purchase Order or agreement between you and Spiral.
4. Warranty Disclaimer
You expressly acknowledge and agree that use of the Software is at your sole risk. The Software and related documentation are provided “AS IS” and without warranty of any kind. SPIRAL EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SPIRAL DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. FURTHERMORE, SPIRAL DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SPIRAL OR SPIRAL’S AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT SPIRAL OR SPIRAL’S AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
5. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SPIRAL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS) ARISING OUT OF ANY USE, MISUSE OR INABILITY TO USE THE SOFTWARE, PERFORMANCE OF THIS AGREEMENT, OR IN FURTHERANCE OF THE PROVISIONS AND OBJECTIVES OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON TORT, CONTRACT, OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL SPIRAL’S LIABILITY FOR DIRECT DAMAGES EXCEED THE AMOUNTS PAID TO SPIRAL UNDER THIS AGREEMENT.
You agree to indemnify and hold harmless Spiral from any claims by third parties related to or arising under any use of the Software under this Agreement or damages that may result from your use of the Software to include but not limited to, use of any data that may be provided through use of the Software.
Term. This Agreement will commence as of the Effective Date and will continue until terminated under this Section.
Termination by Either Party. You may terminate this License at any time by destroying the Software, related documentation and all copies thereof. This License will terminate immediately without notice from Spiral for any material breach or failure to comply with the provisions of this License. Such termination does not relieve you of any outstanding payment obligations unless expressly agreed by the Parties. Spiral further reserves the right to terminate this agreement at its sole discretion in the event a material deficiency or error is identified in the Software.
Obligations upon Termination. Upon termination you must destroy the Software, related documentation and all copies thereof. Spiral may also terminate
Effect of Termination. The following Sections will survive any termination of this Agreement: Section 4 (Warranty Disclaimer); Section 5 (Limitation of Liability) Section 6 (Indemnity) and Section 7 (Miscellaneous Provisions).
8. Miscellaneous Provisions
Non-assignment. Neither party may, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer this Agreement or delegate any of its rights or obligations without the other party’s written consent. Any merger, reorganization, transfer of substantially all assets of a party, or other change in control or ownership will be considered an assignment for the purposes of this Agreement. Except as provided in this Section, any attempted assignment, transfer or delegation without such prior written consent will be void.
Waiver. A party’s failure to exercise any of its rights under this Agreement will not constitute a waiver or forfeiture of any such rights nor of any other rights.
Severability. If any provision in this Agreement is held invalid or unenforceable by a body of competent jurisdiction, such provision will be construed, limited or if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability. The parties shall negotiate in good faith a valid, enforceable substitute provision that most nearly effects the parties’ original intent in entering into this Agreement. The other provisions of this Agreement will remain in full force and effect.
Entire Agreement. This Agreement represents the entire agreement between the parties as to the matters set forth and integrates all prior discussions and understanding between them. This Agreement may only be amended or modified by a written instrument signed by an authorized representative of both parties.
Governing Law. This Agreement is made under and will be construed in accordance with the laws of the State of Washington, USA, without reference to conflict of the laws principles. All Parties hereby consent to both personal jurisdiction and venue in the courts of the state of Washington. Venue for disputes under this Agreement shall be proper in courts of competent jurisdiction in the state of Washington.
Prevailing Party. In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party shall be awarded its reasonable attorney fees, and costs and expenses incurred.
Third-Party Beneficiary. Except as specifically set forth herein, this Agreement is solely for the benefit of the Parties and their respective successors and permitted assigns, and no other person or entity has any right, benefit, priority or interest under or because of the existence of this Agreement.
Force Majeure. Neither Party shall be held liable or responsible to the other Party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any provision of this Agreement when such failure or delay is caused by or results from causes, beyond the reasonable control of the affected Party, including but not limited to fire, floods, embargoes, war, acts of war (whether war is declared or not), insurrections, riots, terrorist acts, civil commotions, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any court or governmental authority.
Reference Program. You will consult with Spiral and work in good faith to agree on quotes and statements about your experience with the Software. Spiral may, at its option, use such quotes, logos and statements in connection with its sales and marketing activities. Upon request, may participate in and act as a reference in connection with Spiral sales and marketing activities that may include one or all of the following: press releases, reference calls, and event presentations with case studies.