End user agreement for cellAnalyst from AssaySoft
This End-User License Agreement (this “Agreement”) is a legal contract between you, as either an individual or a single business entity, and AssaySoft, Inc. and its affiliates (“AssaySoft”).
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING ASSAYSOFT'S PROPRIETARY SOFTWARE (the “Software”).
THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT, NOT SOLD TO YOU. BY DOWNLOADING THE SOFTWARE OR OBTAINING A LICENSE KEY TO THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD CLICK THE “I DO NOT ACCEPT” BUTTON BELOW, TERMINATE THE DOWNLOAD PROCESS, AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE. THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND CELLANALYST CONCERNING THE SOFTWARE, AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH CELLANALYST RELATING TO THE SOFTWARE.
1.1. Grant of License. AssaySoft hereby grants to you, and you accept, a limited, nonexclusive license to use the Software in machine-readable, object code form only, and the user manuals accompanying the Software (the “Documentation”), only as authorized in this Agreement. For purposes of this Agreement, the “Software” includes any updates, enhancements, modifications, revisions, or additions to the Software made by AssaySoft and made available to end-users through AssaySoft web site. Notwithstanding the foregoing, AssaySoft shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software.
1.2. Scope of Use. You may use one copy of the Software activated by a license key on a single server (virtual or physical) owned, leased, or otherwise controlled by you, at a single time. If you have multiple license keys for the Software, you may make and use as many copies of the Software as you have license keys. For purposes of this Agreement, “use” of the software means loading the Software into the temporary or permanent memory of a computer. Installation of the Software on a network server solely for distribution to other computers is not “use” of the Software, and is permitted, as long as you have a license key for each server (virtual or physical) to which the Software is distributed. The Software may not be used on or distributed to a greater number of computers than you have license keys. If you use or distribute the Software to multiple users, you must ensure that the number of users does not exceed the number of license keys you have obtained, or you will be in breach of this Agreement.
1.3. Copies and Modifications. You may not reverse engineer, decompile, disassemble, or otherwise translate the Software or any license keys you have obtained. You may not modify or adapt the Software or any license keys that you have obtained in any way. You may make one copy of the Software, the Documentation, and any license keys that you have obtained, solely for backup or archival purposes. Any such copies of the Software, Documentation, or license keys shall include any copyright or other proprietary notices that were included on such materials when you first received them. Except as authorized in this Section, no copies of the Software, Documentation, or license keys, or any portions thereof, may be made by you or any person under your authority or control.
1.4. Assignment of Rights. You will not sublicense, lease, rent, or lend your rights in the Software, Documentation, or license keys, as granted by this Agreement, with any third party without prior written consent of AssaySoft.
2. Intellectual Property and Confidentiality
2.1. Use Reporting, License Violations and Remedies. AssaySoft reserves the right to gather data on key usage including license key numbers, server IP addresses, domain counts and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this End-User License Agreement. cellAnalyst expressly prohibits simultaneous, multiple installations of our licensed products and domain count overrides without prior written approval. Any unauthorized use shall be considered by AssaySoft to be a violation of the End-User License Agreement. AssaySoft reserves the right to remedy violations immediately upon discovery, by charging the then current list price of unauthorized keys to the credit card used to make the original, authorized purchase, or by any other means necessary. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this agreement. Any blocking of data required for compliance under this agreement is considered to be violation of this agreement and will result in immediate termination of this Agreement pursuant to Section 4.
2.2. License Automatic Update and Expiration. Your license may include an expiration date that can result in the termination of the license. For permanent (non-lease) license keys, the license updates automatically except if AssaySoft determines that a license is used in violation of the terms of this Agreement. If your license key is stolen, or if you suspect any improper or illegal usage of your license outside of your control you should promptly notify AssaySoft of such occurrence. A replacement license will be issued to you and the suspect license will be allowed to expire. For lease licenses, your monthly payment for each month must be processed prior to the expiration date in order for the license updates to be performed. For your convenience AssaySoft provides license expiration warnings in the product interface should there be any issues that would cause the product license to eventually expire. It is your responsibility to contact AssaySoft regarding any potential expiration that you deem inappropriate. AssaySoft is not liable for any damages or costs incurred in connection with the expiring licenses.
2.3. Proprietary Rights to Software and Trademarks. You acknowledge that the Software and the Documentation are proprietary to AssaySoft, and the Software and Documentation are protected under United States copyright law and international treaties. You further acknowledge and agree that, as between you and AssaySoft, AssaySoft owns and shall continue to own all right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant you any ownership interest in or to the Software or the Documentation, but only a limited right of use that is revocable in accordance with the terms of this Agreement. Any and all trademarks or service marks that AssaySoft uses in connection with the Software or with services rendered by AssaySoft are marks owned by AssaySoft. This Agreement does not grant you any right, license, or interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks.
2.4. Confidentiality. You shall permit only authorized users, who possess rightfully, obtained license keys, to use the Software or to view the Documentation. Except as expressly authorized by this Agreement, you shall not make available the Software, Documentation, or any license key to any third party. You will use your best efforts to cooperate with and assist AssaySoft in identifying and preventing any unauthorized use, copying, or disclosure of the Software, Documentation, or any portion thereof.
3. License Fees
The Software will be available to you for use upon your receipt of one or more license keys. Upon acceptance of this Agreement, you may obtain one or more license keys by paying the requisite license fees, using the procedure set forth on AssaySoft’s web site. The license fees paid by you are paid in consideration of the license granted under this Agreement. AssaySoft Inc. does not refund license fees. By accepting this agreement you fully understand that once license fee payment is made to AssaySoft you will have no recourse for receiving a refund of any part of the fees.
4. Term and Termination
This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, accessing, and using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until terminated. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. If you are leasing the Software, and fail to pay the applicable license fees, AssaySoft shall have the right to shut down your server. You may terminate this License Agreement at any time by: (i) providing written notice of your decision to terminate the Agreement to AssaySoft and (ii) either returning the Software, Documentation, all copies thereof, and all license keys that you have obtained to AssaySoft or destroying all such materials and providing written verification of such destruction to AssaySoft. AssaySoft may terminate this License Agreement if you breach any term of the Agreement by giving you written notice of your breach and AssaySoft’s decision to terminate the Agreement. Upon termination of the Agreement by cellAnalyst, you agree to either return to AssaySoft the Software, Documentation, all copies thereof, and all license keys that you have obtained, or to destroy all such materials and provide written verification of such destruction to AssaySoft.
5. Remedies, Indemnification
5.1. If you learn of any actual or threatened infringement or piracy of the Software, or if any infringement or piracy claim is made against you by a party other than AssaySoft in connection with your use of the Software, you shall notify AssaySoft in writing of the infringement, piracy or claim as soon as is reasonably possible. AssaySoft shall in its sole discretion determine what action if any to take with respect to the foregoing and shall assume the defense or and bear the expenses of any such action (except to the extent, if any, to which such dispute or costs arise from your negligence, willful misconduct or modification of the Software). In the event that the use of the Software in accordance with the provisions of this Agreement is declared by a court of competent jurisdiction to infringe the rights of any third party, as your sole remedy, AssaySoft at its option shall (i) procure for you the right to use the Software, or (ii) modify the Software to render it non-infringing.
5.2. You will, at your own expense, indemnify and hold AssaySoft, and its subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees (collectively, “Claims”), arising out of any use of the Software by you, any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement.
THE SOFTWARE AND DOCUMENTATION ARE LICENSED “AS IS,” AND ASSAYSOFT DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, ASSAYSOFT EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE.
7. Limitation of Liability
ASSAYSOFT’S CUMULATIVE LIABILITY TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ASSAYSOFT’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS, SHALL BE LIMITED TO THE AMOUNT OF LICENSE FEES PAID TO ASSAYSOFT BY YOU UNDER THIS AGREEMENT, BUT IN NO EVENT SUCH LIABILITY SHALL EXCEED US$2,000 IN THE AGGREGATE FOR ALL OCCURANCES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. IN NO EVENT SHALL ASSAYSOFT BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, EVEN IF ASSAYSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. General Terms
8.1. Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the federal or state courts situated within the Eastern District of Virginia. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts.
8.2. Severability. If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation.
8.3. Survival. Articles 2, 5, 6, 7, and 8 of this Agreement and all Sections thereof, shall survive the termination of this Agreement, regardless of the cause for termination, and shall remain valid and binding indefinitely.
8.4. Headings. The Article and Section headings contained in this Agreement are incorporated for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
8.5. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
8.6. Amendment. AssaySoft reserves the right, in its sole discretion, to amend this Agreement from time to time. If there is a conflict between this Agreement and the most current version of this Agreement, posted at www.cellAnalyst.com, will prevail. If you do not accept amendments made to this agreement, then this license will be immediately terminated pursuant to Section 4.
8.7. Taxes. You shall, in addition to the license fees required under this Agreement, pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of the transaction contemplated under this Agreement, excluding income taxes on the net profits of AssaySoft. You shall reimburse AssaySoft for the amount of any such taxes or duties paid or incurred directly by AssaySoft as a result of this transaction.
9. United States Government Restricted Rights
The Software and Documentation are provided with Restricted Rights. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(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. S:52.227-19, as applicable.