End User License Agreement For Bionano Solve
This End User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Bionano Genomics, Inc. for the Bionano Solve software that accompanies this EULA, which includes associated media and Bionano Genomics Internet-based services ("Software"). An amendment or addendum to this EULA may accompany the Software. YOU AGREE TO BE BOUND BY THE PROVISIONS OF THIS EULA BY INSTALLING, COPYING, OR USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE.
Under this EULA, Bionano Genomics, Inc. (“Bionano”) grants to the user (“Licensee”) a non-exclusive and non-transferable license (”License”) to use the Software.
1.1 Title, copyright, intellectual property rights and distribution rights of the Software remain exclusively with Bionano. Intellectual property rights include the look and feel of the Software. This EULA constitutes a license for use only and is not in any way a transfer of ownership rights to the Software.
1.2 The Software may be installed on no more than one computer. Unless otherwise provided in these license provisions, the Software may not be used on any other computer. This EULA shall not represent a multi-user license.
1.3 The Software shall not be modified, reverse-engineered, or de-compiled in any manner through current or future available technologies. Further the Licensee shall not copy, translate, transmit, display port, distribute, modify, or make derivative works of the Software. In addition to any other remedies available to Bionano, a breach of this provision shall immediately terminate the rights, license, or permissions given hereunder and void all warranties.
1.4 The rights and obligations of this Agreement are personal rights granted to the Licensee only. The licensee shall not assign, redistribute, sell, export, re-export, divert, rent, lease, sublicense, or otherwise transfer any of the rights or obligations granted under this EULA to any other person or entity. Licensee shall not rent, lend, disclose, publish, sell, copy, assign, lease, sub-license, market or transfer the Software, including the underlying data, media, printed material and electronic documentation or any information generated by the Software, or use it in any other manner outside the scope of the License without the express written consent of Bionano.
1.5 Licensee is solely responsible for making sure that the way Licensee uses the Software is only for the intended use, and that Licensee’s use complies with applicable laws, regulations and governmental policies. Licensee must obtain all necessary approvals, intellectual property rights, licenses and permissions Licensee may need. It is solely Licensee’s responsibility to make sure the Software is suitable for Licensee’s particular use.
1.6 Licensee acknowledges that the Software contains valuable trade secrets and other proprietary information of Bionano and its suppliers, and agrees to comply with the restrictions set forth in the provisions of this EULA with regards to the Software provided by Bionano to Licensee under this EULA.
1.7 Failure to comply with any of the provisions under the License section will be considered a material breach of this EULA.
1.8 This License is effective until terminated. Licensee may terminate this License at any time by destroying all copies of the Software. Bionano can terminate this License if Licensee fails to comply with any provision of this EULA. The provisions of Sections 1.3, 1.4, 3, 4, 5, 9, and 10.6 shall survive any termination of this License.
1.9 Bionano reserves the right to change the provisions of the EULA at any time, in which case Bionano will provide a copy of the updated EULA to Licensee.
2. License Fee. The original purchase price paid by the Licensee will constitute the entire license fee and is the full consideration for this License.
3. Limited Warranties. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE AND BIONANO’S ACTIVITIES UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. BIONANO, ITS AFFILIATES, LICENSORS AND SUPPLIERS, AS WELL AS THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND CONTRACTORS EXPRESSELY DISCLAIM ALL OTHER EXPRESS, IMPLIED, OR STATUTORY WARRANTIES. THIS INCLUDES THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES AND RESULTS, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT.
4. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BIONANO WILL NOT BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT LICENSEE MIGHT INCUR IN CONNECTION WITH THE EULA, OR THAT MAY ARISE FROM OR IN CONNECTION WITH THE SOFTWARE, EVEN IF BIONANO HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, BIONANO’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE EULA, OR ANY SERVICE, IS LIMITED TO THE LICENSE FEE FOR THE SOFTWARE PURCHASED THAT GAVE RISE TO BIONANO’S LIABILITY.
5. Indemnification. Upon request of Bionano, Licensee agrees to defend, indemnify, and hold harmless Bionano, its officers, directors, employees, agents, licensors, suppliers, affiliated companies, and distributors from and against any and all liabilities, claims, losses, expenses, damages, and costs, including reasonable attorneys’ fees, arising from or relating to any violation of the provisions of this EULA or any activity related to Licensee’s or any other person’s use of the Software (including negligent or wrongful conduct). Bionano reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee hereunder.
6. Specification. Licensee agrees to actively observe the minimum requirements, including but not limited to, hardware and software that are needed to make viable the Software. The requirements may change, evolve, or be amended over time. Bionano reserves the rights to raise or amend the requirements at any time without notice.
7. Upgrades. Upgrades of the Software may be provided free of charge to the Licensee as such upgrades become available. Such upgrades are licensed subject to this EULA.
8. U.S Government Restricted Rights. If Licensee is acquiring the Software on behalf of any unit or agency of the United States Government, the following provisions apply. The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 C.F.R. 52.227-19, as applicable.
9. Entire Agreement, Severability. This EULA (including any addendum or amendment to this EULA which is included with the Software) is the entire agreement between the Licensee and Bionano relating to the Software and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the provisions of any Bionano policies or programs for support services conflict with the provisions of this EULA, the provisions of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
10.1 Bionano’s failure to exercise any rights under this EULA is not a waiver of its rights to damages for Licensee’s breach of contract and is not a waiver of any subsequent breach.
10.2 Licensee agrees to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions received from Bionano as a result of discussions, negotiations and other communications between Bionano and Licensee in relation to Bionano’s products or services, and Licensee agrees to use the foregoing information or instructions only for the purposes of this EULA. Licensee agrees not to disclose any such confidential information to anyone other than its employees who have a need to know, or to its accountants, attorneys, or other representatives who have a need to know and who are bound to maintain the confidentiality of the information.
10.3 All notices hereunder must be in writing and delivered by overnight courier or facsimile (with confirmation of receipt) to the other party at the address stipulated by each party in writing. Notices will be effective upon delivery.
10.4 Licensee and Bionano are independent contractors. Neither party will have or represent that it has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party. The provisions of the EULA will not be deemed to create any agency, partnership, employment relationship, franchise or joint venture between the parties.
10.5 Licensee acknowledges that any breach of its obligations hereunder with respect to Bionano’s intellectual property rights or other proprietary rights, or Bionano’s confidential Information, will cause Bionano irreparable injury for which there may be inadequate remedies at law, and therefore, in addition to all other remedies provided at law, Bionano shall be entitled to injunctive or other equitable relief hereunder.
10.6 The EULA and performance under it will be governed by the laws of the State of California, USA, without regard to provisions on the conflict of laws or any other provision that would result in the application of a different body of law. The United Nations Convention on Contracts for the International License of Goods shall not apply to the Contract. Except for any actions for injunctive or other equitable relief, which may be brought in any court of competent jurisdiction, any and all disputes arising out of or related to the Contract shall be solely and exclusively brought and resolved in the Federal and State Courts located within San Diego County, California, USA. The parties hereby consent to the personal and exclusive jurisdiction and venue of these Courts and the service of process in connection therewith and irrevocably waive any objection thereto.
Last revised: June 25, 2013