“CellMek Panel Designer” SOFTWARE END-USER LICENSE AGREEMENT
IMPORTANT: READ THIS END-USER LICENSE AGREEMENT:
THIS END-USER LICENSE AGREEMENT (“Agreement”) GOVERNS THE USE OF CERTAIN COMPUTER PROGRAMS ASSOCIATED WITH “CELLMEK PANEL DESIGNER” (“Product”) PROVIDED BY BECKMAN COULTER, INC. (“BCI”). YOUR USE OF SUCH PROGRAMS, YOUR PURCHASE OF THE PRODUCT, AND/OR YOUR USE OF THE PRODUCT CONSTITUTES ASSENT AND ACCEPTANCE OF THIS AGREEMENT BY YOU (collectively "You” or "Your”) AND SIGNIFIES YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU DO NOT HAVE THE RIGHT TO AND MAY NOT USE THE COMPUTER PROGRAMS PROVIDED.
- GRANT OF LICENSE. Subject to all of the terms and conditions of this Agreement, BCI grants to You a non-exclusive, non-sub licensable license to use the computer programs provided by BCI (“Programs”) in connection with and/or installed on the Product, and the associated user documentation (“Documentation”) (together with the Programs referred to herein, collectively, as the (“Software”)), only in accordance with the Documentation (“License”). You have no right to receive, use or examine any source code or design documentation relating to the Programs. The Software is licensed and not sold. As between the parties, BCI and its licensors retains all right, title and interest in and to the Software and any and all derivative works, except as expressly and unambiguously licensed herein, and BCI reserves all rights in the Software not granted to You. Except as otherwise expressly provided under the Agreement, You shall only use the Software as part of the CellMek SPS system.
- USE RESTRICTIONS. You shall not (and shall not allow others to), directly or indirectly: (a) use (including make any copies of) the Programs beyond the scope of the license granted under Section 1; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Programs or any part thereof; (c) combine the Programs or any part thereof with, or incorporate the Programs or any part thereof in, any other programs; (d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Programs or any part thereof; (e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the object code of the Programs or any part thereof; (f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software, including any copy thereof; (g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Programs, or any features or functionality of the Programs, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service; (h) use the Software in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems; (i) use the Software in violation of any law, regulation, or rule; or (j) use the Software for purposes of competitive analysis of the Programs, the development of a competing software product or service, or any other purpose that is to BCI’s commercial disadvantage.
- TERMINATION. The License is effective until terminated. You may terminate the Agreement and the License at any time by destroying all copies of the Program. The License will terminate automatically without notice if You fail to comply with any provision of this Agreement. Within fourteen (14) days following termination, You shall cease all use of, and, destroy all copies of the Software in Your possession or control and so certify to BCI in writing. Except for the License, the terms of this Agreement shall survive termination. Termination is not an exclusive remedy and all other remedies will be available to BCI whether or not the License is terminated.
- SOFTWARE SUPPORT. Please refer to the BCI support number provided in the Documentation for the Product for information regarding support of the Product.
- DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, BCI, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, BCI PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
- LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: a) IN NO EVENT WILL BCI OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR YOU WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; b) IN NO EVENT WILL BCI’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED TWO HUNDRED AND FIFTH DOLLARS (US$250); AND (c) THE LIMITATIONS SET FORTH IN THIS SECTION 6 SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- U.S. GOVERNMENT RIGHTS. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if You are the US Government or any contractor therefor, You shall receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- EXPORT REGULATION. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
- INTELLECTUAL PROPERTY RIGHTS. You acknowledge and agree that the Software is provided under license, and not sold, to You. You do not acquire any ownership interest in the Software under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. BCI shall retain its entire right, title, and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, except as expressly granted to You in this Agreement. You shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.
- THIRD PARTY COMPONENTS; ADDITIONAL TERMS. The Software may contain or be delivered with one or more components, which may include third-party components, identified by BCI in the Documentation, readme.txt file, third-party click-accept or elsewhere (e.g., on a href="">www.beckman.com or attached to this Agreement as an appendix) (the “Identified Component(s)”) as being subject to different license agreement terms, disclaimers of warranties, limited warranties or other terms and conditions (collectively, “Additional Terms”) than those set forth herein. You agree to the applicable Additional Terms for any such Identified Component(s).
- MISCELLANEOUS. You may not assign this Agreement or any of Your rights hereunder without BCI's prior written consent and any attempt to do so without such consent shall cause this Agreement and any of Your associated rights hereunder to be null and void. No failure to exercise any right hereunder will operate as a waiver thereof. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be construed in accordance with the laws of the State of California and the United States without regard to conflicts of laws, provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The sole and exclusive jurisdiction and venue for any actions related to the subject matter hereof shall be the state and U.S. federal courts located in the County of Orange, California. You irrevocably submit to the jurisdiction of such courts and consent to venue in such forum with respect to any action or proceeding that relates to this Agreement. The prevailing party in any action to enforce this Agreement shall be entitled to recover its reasonable costs and expenses including reasonable attorneys' fees. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized officer of BCI. This Agreement is in the English language only, which language shall be controlling and any revision of this Agreement in any other language shall not be binding. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties relating to the subject matter of this Agreement.