SOFTWARE LICENSE AGREEMENT
Important Notice—Please read this software license agreement (the “Agreement”) carefully before downloading, installing, or using the Software. By selecting Submit after checking the box next to the text “I have read the Software License Agreement and agree with its conditions,” you are agreeing to be bound by and are becoming a party to this Agreement. If you do not agree to all of the terms of this Agreement, do not download, install, or use the Software. By downloading, installing, or using the software, you are agreeing to be bound by and are becoming a party to this Agreement.
This Agreement is between you, or the company or other legal entity that you represent and warrant you have the legal authority to bind, (each, “Licensee”) and Beckman Coulter, Inc. (“Beckman Coulter”), with principal offices at 5350 Lakeview Parkway South Drive Indianapolis, IN 46268.
1. DEFINITIONS. “Licensed Software” means the Cytobank Console Scripts to enable node ID display and snapping nodes to a line arrangement for SPADE results on the Cytobank platform, provided by Beckman Coulter for the Cytobank platform, including source code and object code.
2. GRANT OF LICENSE. Subject to all of the terms and conditions of this Agreement, Beckman Coulter grants to Licensee a non-exclusive, non-sublicensable and non-transferable license (the “License”) to use the Licensed Software. The Licensed Software is licensed and not sold. As between the parties, Beckman Coulter and its licensors retains all right, title, and interest in and to the Licensed Software, except as expressly and unambiguously licensed herein.
3. FEEDBACK. If Licensee gives feedback about the Licensed Software to Beckman Coulter, Licensee gives to Beckman Coulter, without charge, the right to use, share, and commercialize the feedback in any way and for any purpose.
4. RESTRICTIONS. Licensee shall not (and shall not allow others to): (i) provide, rent, loan, or lease the Licensed Software to any other party or provide any information services to any other party through the use of the Licensed Software, whether in the form of a timesharing service, service bureau, or other information processing service, (ii) remove, modify, or obscure any product identification, copyright notice, trademark, and/or any other proprietary legend contained in the Licensed Software, (iii) disseminate performance information or analysis relating to the Licensed Software, or (iv) use the Licensed Software in hazardous environments requiring fail-safe performance in which the failure of the Licensed Software could lead to death, personal injury, or environmental damage. Licensee has been informed of and understands that the Licensed Software is not a commercial Beckman Coulter product. Beckman Coulter is not obligated to provide any support for the development or use of Licensed Software.
5. CONFIDENTIALITY. Licensee shall hold the Licensed Software in confidence and not disclose the Licensed Software to any third party by any electronic, verbal, or mechanical means, without Beckman Coulter’s express written consent. Licensee shall use the same level of care to prohibit disclosure of the Licensed Software as Licensee uses to protect its own source code, but in no event less than reasonable care.
6. TERM AND TERMINATION. This Agreement shall have an initial term of one (1) year. Thereafter, the Agreement shall automatically be renewed for successive one-year terms, unless either party provides one (1) month’s prior written notice to the other party to terminate the Agreement. Beckman Coulter may terminate the License upon ten (10) days written notice to Licensee for any reason. Within fourteen (14) days following termination of the License, Licensee shall cease use of, and destroy, all copies of Licensed Software in its possession or control and certify as such to Beckman Coulter 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 Beckman Coulter whether or not the License is terminated.
7. DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LICENSED SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND BECKMAN COULTER DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. BECKMAN COULTER DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL BE ERROR FREE, THAT USE OF THE PROGRAMS WILL BE FREE FROM INTERRUPTION OR OTHER FAILURES, THAT ANY ERRORS OR DEFECTS IN THE LICENSED SOFTWARE WILL BE CORRECTED, OR THAT THE LICENSED SOFTWARE WILL SATISFY LICENSEE’S SPECIFIC REQUIREMENTS. LICENSEE ACKNOWLEDGES AND AGREES THAT BECKMAN COULTER DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE PERFORMANCE, USE OR RESULTS OF THE USE OF THE LICENSED SOFTWARE OR ITS CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. LICENSEE ASSUMES THE ENTIRE RISK ASSOCIATED WITH ITS USE OF THE LICENSED SOFTWARE. THIS DISCLAIMER OF WARRANTY IS AN ESSENTIAL PART OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO LICENSEE. IN THE EVENT THE DISCLAIMER OF IMPLIED WARRANTIES IS NOT ENFORCEABLE UNDER APPLICABLE LAW, ANY IMPLIED WARRANTIES SHALL BE LIMITED TO NINETY (90) DAYS FOLLOWING DELIVERY OF THE LICENSED SOFTWARE.
8. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, BECKMAN COULTER SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR LOSS OF OR INTERRUPTION TO BUSINESS; LOSS OF PROFITS OR GOOD WILL; LOSS OF USE; LOSS OR DAMAGE TO OR CORRUPTION OF DATA; DAMAGE TO ANY OTHER LICENSED SOFTWARE, HARDWARE OR OTHER EQUIPMENT; UNAUTHORIZED ACCESS TO OR ALTERATIONS OF DATA; UNAUTHORIZED DISCLOSURE OF SENSITIVE, CONFIDENTIAL OR PROPRIETARY INFORMATION; ANY COSTS OF PROCURING SUBSTITUTE GOODS, SERVICES, TECHNOLOGY OR RIGHTS; ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES; OR ANY AMOUNT IN EXCESS OF TWO HUNDRED FIFTY DOLLARS (US$250.00). THE LIMITATIONS IN THIS SECTION 8 SHALL NOT LIMIT BECKMAN COULTER’S LIABILITY FOR DEATH OR BODILY INJURY SOLEY RESULTING FROM BECKMAN COULTER’S NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUDULENT MISREPRESENTATION.
9. EXPORT. Licensee shall comply with all export and re-export restrictions and regulations of the U.S. Commerce Department and other U.S. agencies and authorities. Without limiting the foregoing, Licensee agrees not to transfer (or authorize anyone to transfer) the Licensed Software (i) into (or to a national or resident of) Crimea – Region of Ukraine, Cuba, Iran, North Korea, Sudan, Syria, or any other country to which the United States has embargoed goods or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Persons List.
10. MISCELLANEOUS. Licensee may not assign this Agreement or any of its rights hereunder without Beckman Coulter’s prior written consent and any attempt to do so without such consent shall 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 Indiana 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 Santa Clara, California. Licensee irrevocably submits to the jurisdiction of such courts and consents 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 Beckman Coulter. 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.