This agreement is made between Emerald BioSystems, Inc., having a place of business at 7869 N.E. Day Road West, Bainbridge Island, Washington 98110 ("EMERALD") and Licensee as identified above WHEREAS, LICENSEE wishes to utilize the Software in accordance with this Agreement.
Now therefore, in consideration of the mutual covenants and obligations set forth below, the parties hereby agree as follows:
1. Definitions.
"End-User Materials" means any written user manuals or documents provided to LICENSEE under this Agreement for use in conjunction with the Software.
"Activation Code" means a code that is required to complete the installation of the Software on an individual computer system. The Software may be fitted with an electronic mechanism that disables the Software until provided with the Activation Code.
"License Period" means the license period, which shall begin upon the date of issuance of the Activation Code to the LICENSEE and shall continue for twelve (12) months.
"Software" means the Gene ComposerTM software described in the Getting Started Guide ("Software"), which EMERALD wishes to provide to LICENSEE.
2. Delivery of the Software
EMERALD will deliver the Software to LICENSEE. LICENSEE acknowledges that certain hardware applications set forth in the Getting Started Guide hereto are required to utilize the Software. LICENSEE shall not use the Software beyond the License Period.
3. Duties of LICENSEE
LICENSEE shall have the right to use the Software during the License Period in accordance with this Agreement. EMERALD shall have the free right to use information provided to it by Licensee and incorporate such information in future versions of Software without any obligation to LICENSEE, except as set forth in Paragraph 5 below.
LICENSEE shall use Software to design protein amino acid sequences and synthetic gene sequences that encode the protein sequences. In the event that the Recipient publishes any research findings using materials designed with the Software, Recipient shall acknowledge EMERALD and the use of the Software. Any such publication shall not include end user materials, code or other materials provided by EMERALD unless agreed to in writing by EMERALD.
4. LICENSEE Acknowledgement
LICENSEE acknowledges that except as provided in Paragraph 5 below, EMERALD has no obligation to provide LICENSEE with Software or any modified versions of Software during or following the License Period.
5. Future Versions of Software
EMERALD may offer to LICENSEE an upgraded version of the Software licensed in accordance with Paragraph 6 below. However, LICENSEE acknowledges that EMERALD shall have no obligation to develop additional versions of Software.
6. Software License
6.1 Grant of License. EMERALD hereby grants to LICENSEE a non-transferable license to the Software, and the right to use End-User Materials during the License Period subject to the limitations within this Agreement. LICENSEE will install one copy of the Software. This license is granted to permit LICENSEE to (a) use and execute the Software through one (1) client seat; and (b) make one (1) copy of the Software in machine-readable, object code form, for nonproductive backup purposes only.
6.2. Activating Software. As part of the installation of the Software, EMERALD will provide LICENSEE with the Demo License File which is provided at the time of installation. The Demo License File will expire at the end of the License Period and the software will no longer execute.
6.3. Object Code. The Software is provided in and may be used in machine-readable object code form only.
6.4. End-User Materials. End-User Materials that accompany the Software are provided solely to support LICENSEE's authorized use of the Software. LICENSEE may not copy, modify, or resell, or distribute the End-User Materials, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by EMERALD.
6.5. EMERALD Disclaimers. EMERALD is not responsible for: (a) determining whether the Software will achieve the results LICENSEE desires; (b) providing or assisting with the proper environment and proper utilities for the computers on which the Software operates, including an uninterrupted power supply; (c) training LICENSEE's personnel; (d) establishing adequate operational back-up provisions in the event of a defect or malfunction that renders the Software or computer system non-operational; and (e) obsolescence of the Software that may result from changes in LICENSEE's requirements.
6.6. Proprietary Protection. This Agreement does not provide LICENSEE with title or ownership of the Software, but only a right of limited use. EMERALD shall maintain sole and exclusive ownership of all right, title, and interest in and to the Software and End-User Materials, all copies thereof, and all modifications and enhancements (if any) thereto subject only to the right and license expressly granted to LICENSEE by this Agreement.
6.7. Limitations on Use, Etc. LICENSEE may not use, copy, modify, resell, distribute, or transfer to third parties in any manner the Software (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by this Agreement, or as subsequently agreed to by the parties in writing. LICENSEE may not reverse assemble, reverse compile, or otherwise translate the Software. LICENSEE may not install the Software anywhere without EMERALD's prior written consent.
6.8. Loss of Data. LICENSEE acknowledges that electronic data storage is subject to the possibility of human or machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media that may give rise to loss or damage. EMERALD shall not be liable for any such errors, omissions, delays, or losses, provided that the Software does not intentionally create such errors, omissions, delays, or losses. LICENSEE is responsible for adopting reasonable measures to limit the impact of such problems, including backing up data, and adopting procedures to ensure the accuracy of input data; examining and confirming results prior to use; and adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data. LICENSEE is also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any data.
6.9. Computer Configuration. EMERALD recommends certain configurations of computer hardware, software, and peripherals for use with its software. These recommendations are set forth in the Getting Started Guide.
7. Disclaimer of Warranty; Indemnification
LICENSEE acknowledges that and agrees that the Software is supplied "AS IS." EMERALD does not warrant the Software or its performance in any way, express or implied. EMERALD SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, WHETHER ARISING FROM A STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
LICENSEE agrees to defend, indemnify and hold harmless EMERALD and its affiliates, directors, agents, officers and employees from against any claim, liability, injury, loss, damage, cost or expense resulting from the Software or LICENSEE's use thereof, except to the extent set forth below. If a third party claims that the Software infringes any U.S. patent, copyright, or trade secret, EMERALD will indemnify, defend, and hold LICENSEE, including without limitation its officers, directors and employees, harmless against such claim at EMERALD's expense and pay all damages that a court finally awards, provided that LICENSEE promptly notifies EMERALD in writing of the claim, and allows EMERALD to control, upon EMERALD's request, and cooperate in the defense or any related settlement negotiations. If such a claim is made or appears possible, EMERALD may, at its option, secure for LICENSEE the right to continue to use the Software, modify or replace the Software so they are non-infringing, or, if neither of the foregoing options is available in EMERALD's judgment, require LICENSEE to return the Software. However, EMERALD has no obligation for any claim based on a modified version of the Software or the combination, operation, or use with any product, data, or apparatus not provided by EMERALD. THIS PARAGRAPH STATES EMERALD's ENTIRE OBLIGATION TO LICENSEE WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
8. Term/Termination.
This agreement shall become effective on the date set forth above and shall terminate at the end of the License Period. Upon termination of this Agreement, LICENSEE's license will terminate, and LICENSEE will be required to, as requested by EMERALD, erase, deactivate, delete or destroy, all copies of the Software in LICENSEE's possession.
9. Warranty Limitations. The remedies provided in Paragraph 7 are LICENSEE's sole and exclusive remedies. Without limiting the generality of the foregoing, in no event shall EMERALD be liable, whether in contract, tort, warranty, or under any statute (including without limitation any trade practice, unfair competition, or other statute of similar import) or on any other basis, for indirect, punitive, incidental, multiple, consequential, or special damages sustained by LICENSEE or any other person or entity, whether or not foreseeable, including without limitation, damages arising from or related to loss of use, loss of data, failure or interruption in the operation of any equipment or software, delay in repair or replacement in so far as the delay is reasonable and in accordance with industry standards, or for loss of revenue or profits, loss of good will, loss of business, or other financial loss or personal injury or property damage.
10. Export Control Regulations. LICENSEE will comply fully with all US Export Control laws and regulations as well as similar laws of other countries as applicable. LICENSEE will also comply fully with all customs requirements of the U.S. and all other countries.
11. No Modifications and No Waivers. This Agreement may not be modified except in writing, signed by authorized representatives of both parties. A waiver by either party of its rights hereunder shall not be binding unless contained in a writing signed by an authorized representative of the party waiving its rights.
12. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, United States.
13. Assignment. Neither party shall have the right to assign this Agreement or any of the rights or obligations hereunder without the prior written consent of the other party, except that EMERALD may assign this Agreement to an affiliate or a subsidiary or a successor to that area of its business to which this Agreement is related.
