This is a binding license agreement (“Agreement”) between you and Alamar Biosciences, Inc. (“Licensor” or “Alamar”), under which you receive a limited license to Alamar’s software, solely in object code format, that generates a quantification matrix based on Customer Data (“Licensed Software”) and user and technical manuals and other materials that accompany the Licensed Software (“Documentation”).
This Agreement describes your rights and the conditions upon which you may use the Licensed Software. You should review the entire Agreement, including any supplemental license terms that accompany the Licensed Software and any linked terms. All the terms are important and together create this Agreement that applies to you.
By downloading and/or using the Licensed software you accept and agree to the terms of this agreement. If you do not accept and comply with these terms, you may not download or use the Licensed software or its features.
(i) Customer Data means the data you input into or provide us through the Licensed Software.
(ii) De-Identified Data means data in de-identified form, in which all personally identifiable information, including direct and indirect identifiers, have been removed or obscured so the remaining information cannot reasonably identify an individual.
(iii) Feedback means any ideas or suggestions you voluntarily provide to Alamar (in any manner, whether in writing or orally or otherwise) regarding the Licensed Software, Documentation, or Updates, including possible enhancements or improvements.
(iv) Intellectual Property Rights means all patent rights, copyrights, trade secret rights, mask works, and trademark rights (including service marks and trade names), and any applications for these rights, in all countries.
b. Applicability and Acknowledgement. This Agreement applies to the Licensed Software, the Documentation, and any updates, upgrades, supplements (“Updates”) or services (“Services”) provided by Alamar for the Licensed Software.
c. Compliance with BSD and MIT Licenses. You acknowledge and agree that permission to use the Licensed Software, Documentation, Updates and Services is conditioned upon, among other terms, your compliance with the requirements and restrictions of all versions of the BSD and MIT open source software licenses.
a. License. In consideration of your agreement to be bound by the terms of this Agreement, Alamar hereby grants to you a limited, non-exclusive, royalty-free, non-transferable, non-sublicensable license to download, install, use, reproduce, display, and perform the Licensed Software, Updates and Documentation, solely for use in connection with Customer Data to generate a quantification matrix, and in accordance with the terms and conditions of this Agreement. All rights not expressly granted herein shall be retained by Alamar and its licensors, as the case may be.
(i) copy or use the Licensed Software, Updates or Documentation in any manner that is not expressly allowed by the license rights stated above;
(ii) decompile, reverse engineer, or otherwise attempt to derive the source code for the Licensed Software or Updates, or any underlying algorithms, user interface techniques, or other ideas embodied in the Licensed Software or Updates;
(iii) distribute any copy of the Licensed Software, Updates or Documentation, except as expressly allowed by the license rights stated above, or allow anyone to have access to or use (such as in a timesharing, service bureau, or application service provider model) the Licensed Software, Updates or Documentation;
(iv) use the Licensed Software or Updates or their output to develop or enhance any product that competes with an Alamar product;
(v) modify or create a derivative work of any part of the Licensed Software, Updates or Documentation;
(vi) disclose the results of any benchmarking of the Licensed Software and/or Updates (whether or not the results were obtained with assistance from Alamar) to any third party; or
(vii) use the Licensed Software and/or any Updates in the development of any product if the failure or malfunction of that product could reasonably be expected to result in personal injury, death, or catastrophic loss.
c. No Other Rights. Except for the limited rights and licenses expressly granted to you under Section 2 of this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to you or any third party any right, title, or interest in or to any of the Licensed Software, Updates, Services or Documentation.
3. DATA. As between Alamar and you, you are solely responsible for Customer Data and own all right, title and interest in and to any and all Customer Data. You hereby grant to Alamar, and our affiliates a limited, non-exclusive, royalty-free, worldwide, sublicensable license to use and access Customer Data as follows: (i) as necessary for Alamar to provide you any Services, solely for your benefit and subject to the terms of this Agreement, including our confidentiality obligations under Section 4; (ii) to create De-Identified Data derived from Customer Data; (iii) to enforce our rights under this Agreement; and (iv) as required by law. You agree that Alamar and our affiliates shall have the right to analyze and use the De-Identified Data for any internal business purpose, including without limitation for: (a) generating analyses and metrics whether with the De-Identified Data, whether alone or in combination with data or information from other sources (the “Analytical Results”); (b) providing Analytical Results, reports and monitoring assessments to you or any third party, solely at Alamar’s discretion; (c) developing, enhancing, and improving any Alamar products and services; (d) conducting research; and (e) marketing purposes. You agree that we shall have the right, both during the term of this Agreement and thereafter, to use, store, transmit, distribute, modify, copy, display, sublicense, create derivative works of and otherwise exploit De-Identified Data derived from Customer Data for any Alamar internal business purpose. You agree and accept that any usage data created through your use of the Services, including the Licensed Software, may be collected by Alamar and utilized for any purpose permitted by law.
a. Confidential Information. In connection with this Agreement, a party (“Disclosing Party“) may disclose or make available Confidential Information to the other party (“Receiving Party“). Receiving Party shall: (a) not disclose or make available the Confidential Information to any third party; (b) limit its use of the Confidential Information to perform such party’s obligations under this Agreement; and (c) protect and safeguard the Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. Confidential Information means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including without limitation information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, and Intellectual Property Rights, whether or not marked or otherwise identified as “confidential.” Without limiting the foregoing, the Licensed Software, Updates and Documentation are the Confidential Information of Alamar and the Customer Data shall remain your Confidential Information.
b. Exclusions. Confidential Information, however, does not include the following information that the Receiving Party can demonstrate by documentary records: (a) was or becomes generally known or publicly available without breach of this Agreement; (b) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain confidentiality of such information; or (c) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
c. Permitted Disclosure. If the Receiving Party is compelled by applicable law to disclose the Confidential Information, including pursuant to a court order, it shall provide Disclosing Party with written notice prior to any such disclosure so that the Disclosing Party can seek a protective order or other remedy.
5. Ownership. Alamar and its licensors own all Intellectual Property Rights in the Licensed Software, Documentation, and Updates. Your only rights in the Licensed Software, Documentation and Updates are the limited rights expressly granted in Section 2 of this Agreement; all other rights are reserved by Alamar. Alamar’s licensors are third-party beneficiaries of, and thus may enforce against you, the license restrictions and confidentiality obligations in this Agreement with respect to their intellectual property and proprietary information. Alamar may freely use and disseminate any Feedback you provide. You agree not to claim that Alamar owes you any compensation for its use or dissemination of such Feedback. You agree and accept that any usage data created through your use of the Services will be owned by Alamar.
6. TERMINATION. The license granted to you under Section 2 is effective until terminated by either party. The license granted to you under Section 2 will terminate immediately without notice if you fail to comply with any provision of this Agreement. Upon termination, you will destroy or return to Alamar all copies of the Licensed Software, Updates and Documentation, or any portions thereof. Upon termination or expiration of this Agreement for any reason your right to possess and/or use the Licensed Software, Updates and Documentation terminates and no further use of such Licensed Software, Updates or Documentation is permitted. Without limiting the preceding sentence, Sections 3, 4, 5, 6, 7 and 8 shall survive termination of this Agreement.
7. DISCLAIMER. the licensed software, updates, services, Documentation, and any third-party software are provided “AS IS,” without any other warranties of any kind. alamar further disclaims all other warranties (express, implied, or statutory), including any warranties of merchantability, fitness for a particular purpose, title, or non-infringement and any warranties arising from a course of dealing or usage of trade.
a. Limitation of Liability. Alamar’s total, cumulative liability to you under this Agreement is limited to one hundred U.S. dollars ($100), regardless of the nature of the liability or the nature or number of claims giving rise to the liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Alamar will not, under any circumstances or any theory of liability, be liable to you for any lost profits, loss of data, or consequential, incidental, or special damages arising from this Agreement or THE USE OR PERFORMANCE OF the products or services provided to you under this Agreement. The limitations of liability in this section are a fundamental part of this Agreement and enable Alamar to provide products and services to you at lower prices. These limitations of liability are intended to apply even if an exclusive remedy is found to have failed of its essential purpose.
b. Export Controls. You shall remain familiar and fully comply with your obligations under any and all laws, statutes, regulations, ordinances of any local, states, federal, national, or other jurisdictional locality, as applicable to the export, import, and/or end-use of Alamar products, technology, and services. Products and/or technology provided under this Agreement may be subject to various Export Control Laws and Regulations, including but not limited to, U.S. Export Administration Regulations (EAR), the U.S. Office of Foreign Asset Control (OFAC), the European Union (EU) Export Control Regime Regulation (EC) No. 428/2009, and/or the EU Consolidated Sanctions List. Where a product and/or technology is identified as export controlled from the country(ies) of export to (1) the destination country(ies), (2) a restricted/proscribed end use, and/or (3) a restricted end user, a government-issued export license must be obtained prior to fulfillment under this Agreement and in accordance with all applicable laws. You agree that Alamar shall not be required to complete delivery of export controlled products or technology unless and until all required export licenses have been obtained.
c. Governing Law; Jurisdiction. This Agreement is governed by the laws of the United States and the State of California, without regard to conflicts of laws principles. The federal and state courts located in Santa Clara County, California have exclusive jurisdiction over any disputes arising from or relating to this Agreement, and each party consents to such exclusive jurisdiction and venue.
d. Waivers. Either party’s failure to enforce any provision of this Agreement will not be deemed a waiver of the future enforcement of that provision or enforcement of any other provision. In order to be binding, a waiver must be in writing and signed by the party giving the waiver.
e. Independent Contractors. The parties to this Agreement are independent contractors. Neither party is the agent or partner of the other party, or has any power or authority to act on behalf of the other party.
f. Severability. If any provision in this Agreement is found to be invalid or unenforceable as written, the remaining provisions will remain in full force and effect and the invalid or unenforceable provision is to be construed (and, if necessary, modified) so that it is valid and enforceable to the greatest extent possible.
g. Remedies. Except where this Agreement expressly provides exclusive remedies, all rights and remedies of either party (including termination rights) are cumulative. You agree that monetary damages alone would not be an adequate remedy, and therefore Alamar will be entitled to injunctive relief if you materially breach the license restrictions under Section 2.b or confidentiality provisions under Section 4 in this Agreement.
h. Force Majeure. Each party will be excused from performance of its obligations under this Agreement, except payment obligations, to the extent that performance is rendered impossible by earthquake, fire, flood, pandemic, epidemic, governmental action, labor disruptions, supplier failures, or any other event or circumstance beyond that party’s reasonable control.
i. Government Users. If you are a branch or agency of the United States Government, or are acquiring the Licensed Software on behalf of any branch or agency of the United States Government, then the following provision applies. The Licensed Software, Updates and Documentation are comprised of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. 12.212, and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.
j. Entire Agreement. This Agreement are the entire agreement between you and Alamar concerning its subject matter, and supersede any prior or contemporaneous agreements, communications, or understandings (whether written or oral).