The accompanying executable code version of 454 Sequencing software and related documentation (the "Product") is made available to you under the terms of this 454 LIFE SCIENCES END USER SOFTWARE LICENSE AGREEMENT (the "Agreement").
BY INSTALLING OR USING THE PRODUCT, YOU ARE CONSENTING TO BE BOUND BY THE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT INSTALL OR USE ANY PART OF THE PRODUCT.
1. LICENSE GRANT. 454 Life Sciences Corporation grants you a non-exclusive license to use the executable code version of the Product. This Agreement will also govern any software upgrades that 454 Life Sciences (in its discretion) may provide to replace and/or supplement the original Product, unless such upgrades are accompanied by a separate license, in which case the terms of that license will govern. You agree that you will not disassemble, decompile, reverse-engineer, modify or otherwise translate or attempt to duplicate or distribute the Software, in whole or in part.
2. TERMINATION. If you breach this Agreement your right to use the Product will terminate immediately and without notice, but all provisions of this Agreement except the License Grant (Paragraph 1) will survive termination and continue in effect. Upon termination, you must destroy all copies of the Product.
3. PROPRIETARY RIGHTS. 454 Life Sciences, for itself and on behalf of its licensors, hereby reserves all intellectual property rights in the Product, except for the rights expressly granted in this Agreement. You may not remove or alter any trademark, logo, copyright or other proprietary notice in or on the Product. This license does not grant you any right to use the trademarks, service marks or logos of 454 Life Sciences or its licensors.
4. DISCLAIMER OF WARRANTY. THE PRODUCT IS PROVIDED "AS IS" WITH ALL FAULTS. TO THE EXTENT PERMITTED BY LAW, 454 LIFE SCIENCES AND 454 LIFE SCIENCES' DISTRIBUTORS HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES THAT THE PRODUCT IS FREE OF DEFECTS, MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE, AND FURTHER DISCLAIMS ANY WARRANTY THAT THE PRODUCT OR ITS USE DOES NOT INFRINGE THE PROPRIETARY RIGHTS OF ANY THIRD PARTY. YOU BEAR ENTIRE RISK AS TO SELECTING THE PRODUCT FOR YOUR PURPOSES AND AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT. THIS DISCLAIMER WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
5. LIMITATION OF LIABILITY. 454 LIFE SCIENCES AND ITS DISTRIBUTORS, DIRECTORS, LICENSORS, CONTRIBUTORS AND AGENTS (COLLECTIVELY, THE "454 LIFE SCIENCES GROUP") WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, AND COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED. THE 454 LIFE SCIENCES GROUP'S COLLECTIVE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE GREATER OF $500 (FIVE HUNDRED DOLLARS) OR THE FEES PAID BY YOU UNDER THIS LICENSE (IF ANY).
6. EXPORT CONTROLS. This license is subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Product and its use.
7. U.S. GOVERNMENT END-USERS. The Product is a "commercial item," as that term is defined in 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 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b)(2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government End Users acquire the Product with only those rights as set forth herein.
8. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between 454 Life Sciences and you concerning the subject matter hereof, and it may only be modified by a written amendment signed by an authorized executive of 454 Life Sciences. (b) Except to the extent applicable law, if any, provides otherwise, this Agreement will be governed by the laws of the state of Connecticut, U.S.A., excluding its conflict of law provisions. (c) THIS AGREEMENT WILL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. (d) If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect. (e) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. (f) Except as required by law, the controlling language of this Agreement is English. (g) Subject to Section 6 above, you may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms; the 454 Life Sciences Corporation may assign its rights under this Agreement without condition. (h) This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.