PERSONAL USE SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT (THE “Agreement”) GOVERNS ALL
SOFTWARE AND SOFTWARE LICENSE KEYS PROVIDED TO YOU
BY ADVANCED BIOCOMPUTING, LLC (“ABC”),
ANY AND ALL ERROR CORRECTIONS,
ENHANCEMENTS, NEW FEATURES, CUSTOMIZATIONS, UPDATES, UPGRADES, AND
MODIFICATIONS THERETO (COLLECTIVELY, THE
“Software”), AND ANY RELATED STANDARD USER
DOCUMENTATION FOR THE SOFTWARE THAT ABC MAKES GENERALLY AVAILABLE TO ITS
CUSTOMERS (THE “Documentation”).
YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS
IS REQUIRED IN ORDER TO DOWNLOAD AND USE THE SOFTWARE.
BY YOUR CLICKING ON THE
YOU AGREE THAT YOU HAVE READ AND UNDERSTAND THIS LICENSE
AND, FURTHER, AGREE TO BE BOUND BY ITS TERMS.
Grant of License.
Subject to your compliance with the terms and conditions of
this Agreement, ABC grants to you a nonexclusive license to use the Software:
(a) for personal, non-commerical purposes, including your academic studies
and academic publication;
(b) in your work as an employee of a non-profit organization;
(c) to provide no-cost, publicly accessible Internet services
that utilize the Software;
(d) to copy the Software only as reasonably necessary
to exercise the license
rights granted in subsections (a), (b), and (c),
including making a reasonable number of
copies for backup and archival purposes.
Upon your acceptance of this Agreement, you will be provided a confidential URL,
from which you may download the Software,
and a license key that you may install for your use of the Software.
Your rights in the Software will be limited to those expressly granted
in this Agreement.
ABC reserves all rights and licenses in and to the Software not expressly granted
to you under this Agreement.
You may not use the Software in any manner other than
for your own personal, non-commercial use
or to provide publicly accessible services
at absolutely no cost to users.
You may not use the Software for any commercial purpose,
including but not limited to consulting, contracting, or for-profit advising.
You may not lease, lend, or rent the Software, use the Software
to provide service bureau, time sharing, rental, application services provider,
hosting, or other computing services to third parties,
or otherwise make the functionality of the Software available
to third parties in any way that involves payment,
tranfer of funds,
or an exchange of goods or other services.
You may not share the download URL or license keys with any third parties.
You may not transfer, sublicense, or otherwise distribute the Software
to any third parties,
nor may you make the Software accessible to copy by any third parties,
nor may you allow any third parties
to use the Software except as granted above.
You agree to instruct other parties interested in using the Software
to contact ABC directly,
so that they may obtain authorized, licensed copies.
You may not disassemble, decompile, or reverse engineer the Software
nor permit any third party to do so,
except to the extent such restrictions are prohibited by law.
With any copies of the Software you maintain,
you will also maintain and not delete or in any manner
alter the copyright, trademark, and other proprietary
rights notices appearing on the Software or displayed by the Software
as delivered to you.
You must irreversibly erase all copies of the Software
from any computer or storage
device you own prior to discarding or transferring ownership
of said computer or storage device.
You acknowledge and agree that the Software is designed for use solely in
non-clinical research settings,
and you will not use the Software for medical
diagnosis, genetic counseling, or for other clinical purposes.
If you provide publicly accessible services that use the Software,
you will ensure that all users of said services acknowledge and agree
to these restrictions, as well.
The Software and Documentation are “commercial computer software”
and “commercial computer software documentation,” respectively,
as such terms are used in FAR § 12.212,
DFARS § 252.227-7014 and DFARS § 227.7202.
Any use, duplication or disclosure of the Software or the Documentation
by or on behalf of the U.S. Government is subject to restrictions
as set forth in this Agreement.
MAINTENANCE AND SUPPORT
At ABC’s sole discretion and without advance notice or any
continuing obligation, ABC may provide error corrections, bug fixes,
enhancements, new features, and customizations to the Software or
Documentation at no additional cost to you.
In order to obtain these updates and the right to use them,
you may be required to agree to a new license agreement.
ABC may further require payment for the provision of bug fixes, enhancements,
upgrades, new customizations or continued support for existing customizations.
You acknowledge and agree that this Agreement does not impose any obligation
on ABC to provide any support for the Software, and except as set forth above,
ABC will have no obligation to respond to any technical issues with respect to
your use of the Software, or to create or provide any error corrections, bug
fixes, modifications, enhancements, updates or new versions or releases of the Software.
FEES AND EXPENSES
The Software and Documentation are provided to you at no cost.
However, you are responsible for any fees or expenses
that you may incur when using or downloading the Software or Documentation.
The Software and Documentation are provided “as is” with no warranties
of any kind, express or implied.
Without limiting the foregoing,
ABC does not warrant that the Software will meet your requirements,
that the Software will operate in the combinations that you may select for use,
that the operation of the Software will be error-free or uninterrupted
or that all Software and/or Documentation errors will be corrected.
ABC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT,
AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ABC
OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
You agree to indemnify, defend and hold harmless ABC, ABC’s affiliates, and,
as applicable, each of their respective present and former staff, employees,
directors, officers, agents, successors, and assigns
(each an “ABC Indemnitee”)
from and against any and all judgments, losses, expenses,
damages and/or liabilities
(including reasonable attorneys’ and expert witness fees and court costs),
that an ABC Indemnitee may incur from any and all third party claims,
suits, actions and/or proceedings to the extent that it is based upon:
(a) any act, error, or omission of yours, including without limitation any act,
error or omission of yours that results in injury or death to persons,
damage to property, products liability, and/or injury to business
(such as, but not limited to, business interruption or damage to reputation)
arising out of, relating to, or incidental to the use of or other exploitation
of the Software and/or Documentation;
(b) a breach of this Agreement by you or any allegation that,
if true, would constitute a breach of this Agreement by you;
(c) the use or other exploitation of the Software and/or Documentation
in the design, development, production, manufacture, sale or offer for sale,
use, importation, lease, marketing, performance or promotion of any product or service
by you including, without limitation, claims for infringement or misappropriation
of a third party’s intellectual property rights or product liability.
If your use of the Software and/or Documentation is,
or in ABC’s opinion is likely to be,
enjoined due to the types of claims specified in the above paragraph,
ABC may, at its sole option and expense:
(a) procure for you the right to continue using such Software and/or Documentation
under the terms of this Agreement;
(b) replace or modify such Software and/or Documentation so that it is non-infringing
and substantially equivalent in function or content
to the enjoined Software and/or Documentation;
(c) terminate your rights and ABC’s obligations hereunder
with respect to such Software and Documentation.
THE PROVISIONS OF THE PARAGRAPH ABOVE SET FORTH ABC’S SOLE AND
EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO
INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
LIMITATION OF LIABILITY
IN NO EVENT WILL ABC BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS,
BODILY INJURY OR LOSS OF LIFE) OR FOR THE COST OF PROCURING SUBSTITUTE
PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
THE USE OR PERFORMANCE OF THE SOFTWARE OR MAINTENANCE SERVICES, WHETHER SUCH
LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT ABC HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED
THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY
SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
TERM AND TERMINATION
This Agreement and the licenses granted herein will begin upon your acceptance
of this Agreement, and will remain in effect until terminated
in accordance with the terms of this Agreement.
Each party will have the right to terminate this Agreement if the other party
breaches any material term of this Agreement and fails to cure such breach
within thirty (30) days after written or e-mail notice thereof.
You may terminate this Agreement at any time for any reason or no reason
by immediately ceasing use of the Software and destroying or returning all copies
of the Software as described herein.
ABC may terminate this Agreement at any time for any reason
or no reason upon written or e-mail notice to you.
Termination of this Agreement pursuant to this Section terminates
all Software licenses granted hereunder.
Upon termination of this Agreement, you will promptly return to ABC or destroy
all copies of the Software within your possession or control, and all portions
thereof, in all forms and types of media.
You may not assign this Agreement, in whole or in part, by operation of law or
otherwise, without ABC’s express prior written consent. Any attempt to assign
this Agreement without such consent, will be null and of no effect. Subject
to the foregoing, this Agreement will bind and inure to the benefit of each
party’s successors and permitted assigns. This Agreement will be governed by
and construed in accordance with the laws of the State of Missouri excluding
that body of laws known as conflict of laws. The parties expressly agree that
the United Nations Convention on Contracts for the International Sale of Goods
will not apply. Any legal action or proceeding arising under this Agreement
will be brought exclusively in the federal or state courts located
in St. Louis, Missouri, and the parties hereby irrevocably consent to the personal
jurisdiction and venue therein. You agree to comply fully with all relevant
export laws and regulations of the United States
to ensure that neither the Software nor any direct product
thereof are: (a) exported or re-exported directly or indirectly in violation
of Export Laws; or (b) used for any purposes prohibited by the Export Laws,
including but not limited to nuclear, chemical, or biological weapons
proliferation. This Agreement constitutes the complete and exclusive
understanding and agreement between the parties regarding its subject matter
and supersedes all prior or contemporaneous agreements or understandings,
written or oral, relating to its subject matter.
Any waiver, modification or amendment of any provision of this Agreement
will be effective only if in writing and signed by duly authorized representatives
of both parties.
The rights and obligations of the parties contained in the sections headed License
Restrictions, Fees and Expenses, No Warranty, Indemnification, Limitation of
Liability, and General will survive the termination of this Agreement or of
any individual Software license granted hereunder.