This agreement (“Agreement” relates to the license, installation and/or use by you (“You”) the licensee of the software product(s) of Scale Biosciences, Inc. (“ScaleBio”), identified herein and/or accompanies these license terms, including any and all associated modules, documentation, and updates or revisions thereto. By purchasing product(s) and downloading the software product(s) of ScaleBio, You accept all of the terms of this Agreement. If You do not agree to these terms and conditions, You may not use or download any of the software product(s) of ScaleBio.
“Licensed Software” means the software (including the ScaleBio Seq Suite: Methylation Workflow) provided by ScaleBio to You and/or made available by ScaleBio in conjunction with Your purchase of a ScaleBio Product. You agree that such Licensed Software will solely be used in conjunction with ScaleBio product(s).
“ScaleBio Product” means products purchased by You (including, but not limited to, ScaleBio Single Cell Methylation Sequencing Kit). Such products include all components, reagents and consumables.
“Documentation” means the user documentation accompanying or provided by ScaleBio, whether physically, electronically, as available as a download, or by any other means, in connection with a ScaleBio Product or related service.
“Other Software” means any ScaleBio software or firmware other than Licensed Software that ScaleBio makes available for use solely with ScaleBio Products and any third party software or firmware. Other Software may include open source software.
“Other License Terms” means, with respect to Other Software, all of the terms and conditions and use restrictions set forth in the end user license agreement(s) and/or documentation accompanying and/or applicable to such Other Software.
2.1 Limited License Grant. Subject to the terms and conditions and restrictions set forth herein, and with respect to Other Software, to the applicable Other License Terms, ScaleBio hereby grants to You a limited, non-exclusive, non-transferable, non-sublicensable license to use the Licensed Software and Documentation solely in connection with the use of ScaleBio Product(s) in accordance with the then current Documentation. No other license or authorization is granted hereunder whether by implication, estoppel or otherwise, and ScaleBio expressly reserves all rights not expressly granted hereunder. For example and without limiting any of the foregoing, no right or license is granted or implied, and You are not authorized to use Licensed Software or Product in combination with any product or method not provided, licensed or specifically recommended in writing by ScaleBio for such use.
2.2 Title. You acknowledge and agree that the Licensed Software and Documentation is licensed and distributed by ScaleBio, and that ScaleBio retains all title to the Licensed Software and Documentation and each copy thereof provided to or generated by You, which copies are licensed to You hereunder for use in accordance with this Agreement.
2.3 Copies. You may make a reasonable number of copies of the Licensed Software and Documentation solely for use in support of its use with ScaleBio Product(s) pursuant to this Agreement. You are not authorized to distribute the Licensed Software or Documentation to a third party without the express written consent of ScaleBio.
3.1 General Restrictions. You shall not, and shall not authorize or permit any third party to: (a) sell, lease, license, sublicense or otherwise transfer the Licensed Software or the Documentation; (b) provide, disclose or make the Licensed Software or Documentation available to any third party, or permit access to or use of the Licensed Software or Documentation by any person other than You or Your employees, agents or contractors who are, by agreement, bound by the terms of this Agreement to the same extent as Yourself; (c) merge or combine the Licensed Software with other software, or modify the Licensed Software, or create any derivative software or any other software based upon, or any derivative work of, the Licensed Software or Documentation; or (d) modify or efface any titles, trademark symbols, copyright symbols, notices or legends, or any other proprietary markings on or in the Licensed Software or Documentation. You further agree that You shall use the Licensed Software solely with data generated using ScaleBio Products. All license restrictions specified in Sections 3.1 and 3.2 and elsewhere in the Agreement shall apply to the maximum extent permissible under applicable law. If You believe that You have additional rights or the right to act contrary to the express license restrictions specified in this Agreement under mandatory laws (including, without limitation, national laws implementing Directive 91/250/EEC and similar laws), You agree to provide ScaleBio with at least 30 days prior written notice and any reasonably requested information before exercising such rights, to allow ScaleBio to offer alternatives at ScaleBio's sole discretion, for example interface information to achieve interoperability with independently created software.
3.2 Regulatory Compliance. You acknowledge that the Licensed Software does not have United States Food and Drug Administration ("FDA") or equivalent non-U.S. regulatory agency approval ("Approval"). Accordingly, You acknowledge that the Licensed Software is intended FOR RESEARCH USE ONLY and NOT FOR USE IN DIAGNOSTIC PROCEDURES. Unless otherwise expressly stated by ScaleBio in writing, no claim or representation is made or intended by ScaleBio (i) as to any diagnostic or other clinical use of the Licensed Software; (ii) that any Licensed Software has any Approval for use in any diagnostic or other clinical procedure, or for any other use requiring compliance with any law, regulation or governmental policy concerning medical devices, laboratory tests or the like (collectively, "Regulatory Laws"); (iii) that any Licensed Software will satisfy the requirements of the FDA or any other regulatory agency; or (iv) that any Licensed Software or its performance is suitable or has been validated for clinical or diagnostic use, for safety and effectiveness, for any specific use or application, or for importation into Your jurisdiction. You agree that if You elect to use the Licensed Software for a purpose that would subject You, its customers or any ScaleBio Product to the application of Regulatory Laws or any other law, regulation or governmental policy, You shall be solely responsible for obtaining any required Approvals and otherwise ensuring that the importation of the Products into Your jurisdiction and Your use of ScaleBio Product complies with all such laws, regulations and policies. The Licensed Software should be used by qualified professionals in strict accordance with applicable instructions, warnings and other information in user manuals and other Documentation. The burden of proof for safe use and handling of the Licensed Software is entirely Your responsibility.
3.3 U.S. Government End Users. The Licensed Software and Documentation provided by ScaleBio pursuant to this Agreement are "commercial items," as the term is defined at 48 C.F.R. §2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the commercial computer software and commercial computer software documentation are licensed to United States Government end users (i) only as commercial items and (ii) with only those rights as are granted pursuant to the terms of this Agreement.
3.4 Other Software and Other License Terms. The Licensed Software may contain, be accompanied by and/or be intended by ScaleBio to interact with, Other Software, which is provided under separate Other License Terms. Such Other Software and/or the applicable Other License Terms may be listed or identified in the Licensed Software or Documentation or contained in a file or directory provided with the delivery of the Licensed Software. Your use of such Other Software in conjunction with the Licensed Software in a manner consistent with the terms of this Agreement is permitted. However, You may have broader rights with respect to the Other Software under the applicable Other License Terms and nothing in this Agreement is intended to impose further restrictions on Your use of such Other Software. For more information on Other Software contained within the Licensed Software, please contact support@scale.bio and include with your request the name and version of the applicable Licensed Software.
4.1 ScaleBio may collect and use Usage Data and similar information or metadata for various business purposes, including to understand usage patterns of the Licensed Software for marketing purposes, to improve, develop, and price ScaleBio products and services and for other development, diagnostic, and corrective purposes. To the extent that You make any improvements to the Licensed Software (“User Improvements”), You hereby grants to ScaleBio a fully paid up, royalty free, worldwide, perpetual, transferable, non-exclusive right and license under any and all intellectual property rights associated with such User Improvements, to reproduce, perform, display, distribute, modify and prepare derivative works of, make, use, sell, offer to sell, import and export products, including software products, based upon such User Improvements.
5.1 No Standalone Warranty for Licensed Software. ScaleBio makes no standalone warranty with regard to Licensed Software. THE LICENSED SOFTWARE (AND ANY OTHER SOFTWARE) IS PROVIDED BY SCALEBIO “AS IS” WITHOUT AND SCALEBIO HEREBY DISCLAIMES ANY WARRANTY, STATUTORY, EXPRESS OR IMPLIED.
5.2 Disclaimer; No Other Warranties. ANY WARRANTY PROVIDED IN CONNECTION WITH SCALEBIO PRODUCT USED BY YOU IN CONNECTION WITH THE LICENSED SOFTWARE AND/OR OTHER SOFTWARE (AND ANY REMEDY THEREIN PROVIDED) ARE IN LIEU OF, AND SCALEBIO HEREBY DISCLAIMS, ALL REMEDIES AND WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF THE LICENSED SOFTWARE AND/OR OTHER SOFTWARE (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), IN EACH CASE HOWEVER ARISING, INCLUDING WITHOUT LIMITATION FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE, OR OTHERWISE. IN NO EVENT SHALL SCALEBIO BE LIABLE FOR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES FOR BREACH OF WARRANTY.
5.3 Limitation of Liability. EXCEPT AS OTHERWISE EXPRESSLY AGREED BY SCALEBIO IN WRITING, SCALEBIO’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE LICENSED SOFTWARE AND/OR OTHER SOFTWARE SHALL BE LIMITED TO THE AMOUNT PAID (IF ANY) BY YOU FOR THE LICENSED SOFTWARE AND/OR OTHER SOFTWARE GIVING RISE TO THE LIABILITY, OR ONE HUNDRED UNITED STATES DOLLARS (US$100.00), WHICHEVER IS GREATER, AND IN NO EVENT SHALL SCALEBIO’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE LICENSED SOFTWARE AND/OR OTHER SOFTWARE EXCEED THE TOTAL AMOUNTS RECEIVED BY SCALEBIO UNDER THE APPLICABLE AGREEMENT(S) WITH SCALEBIO GOVERNING YOUR PURCHASE OF SCALEBIO PRODUCT(S) WITH WHICH THE LICENSED SOFTWARE IS USED BY YOU. In no event will ScaleBio or its suppliers be liable to You or to any third party UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, WARRANTY, PURSUANT TO ANY STATUTE, OR ON ANY OTHER BASIS, for costs of substitute goods or services, any lost profits, lost data, interruption of business, or other special, indirect, incidental or consequential damages of any kind arising out of the use or inability to use the Licensed Software or any components or other Scale Products supplied therewith, even if ScaleBio has been advised of the possibility of such loss or damages and whether or not such loss or damages are foreseeable, including, WITHOUT LIMITATION, DAMAGES ARISING FROM OR RELATED TO LOSS OF USE, LOSS OF DATA, OR DOWNTIME, OR FOR LOSS OF REVENUE OR PROFITS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
5.4 Third Party Disclaimers. Unless otherwise expressly indicated in the Quotation, Documentation or any Other License Terms, none of ScaleBio’s suppliers or licensors of any Product or other item provided by ScaleBio or portion thereof (under this Agreement or otherwise) (each, a "Supplier") provides ANY WARRANTY WHATSOEVER, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, TO YOU, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE DISCLAIMED. IN NO EVENT SHALL ANY SUPPLIER BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, DIRECT, INDIRECT OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS.
5.5 Indemnification of ScaleBio. You agree to defend ScaleBio against any third party claim, proceeding or action ("Claim") that arises in connection with Your use of the Licensed Software and/or Other Software (a) for any clinical purpose or application, (b) in violation of any applicable law or regulation, or (c) in the provision of services under any 'fee for service' agreement or other arrangement. You will pay all damages awarded, and settlements approved by You, in connection therewith, provided that (i) ScaleBio provides to You written notice of the Claim within thirty (30) days of receipt by ScaleBio of such Claim, (ii) ScaleBio allows You to control the defense and settlement of the Claim, and (iii) ScaleBio provides to You reasonable assistance in connection therewith, at no charge to You. ScaleBio may employ counsel at its own expense to assist it with respect to any such Claim, provided that this shall not obligate You or its counsel to consult with or advise such ScaleBio counsel, nor affect Your control of the defense and settlement of the Claim.
6.1 Notices. All notices and other communications required or permitted hereunder shall be in writing, will reference this Agreement, and will be sent to Scale Biosciences 3210 Merryfield Row, San Diego, California 92121. Such notice will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) three (3) business days after being sent by registered or certified mail, return receipt requested, postage prepaid. All notices shall be in English.
6.2 Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. 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 San Diego County, California and the parties irrevocably consent to the personal jurisdiction and venue therein.
6.3 Export Controls. You agree that You will not export or transfer the Licensed Software, Other Software, or Documentation for re-export in violation of any United States laws or laws of any other jurisdiction, or to any denied or prohibited person, entity or embargoed country in violation of such laws.
6.4 Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
6.5 Waiver. Either party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver.
6.6 Force Majeure. Neither party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
6.7 No Third Party Beneficiaries. This Agreement has been made and is made solely for the benefit of ScaleBio and You and their respective permitted subsidiaries, successors and assigns. Nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any persons or entity other than the parties to this Agreement and their respective permitted successors and assigns, or relieve or discharge the obligation or liability of any third persons or entities to any party to this Agreement.
6.8 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the parties. Neither party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other party’s prior written consent.