THIS END USER LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT
BETWEEN YOU ("CUSTOMER") AND NANOME, INC. ("SUPPLIER"). BY CLICKING THE "I
ACCEPT" BUTTON OR EXECUTING AN ORDER FORM THAT INCLUDES THIS
AGREEMENT BY REFERENCE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS
REVIEWED AND ACCEPTS THIS AGREEMENT. IF YOU ARE AGREEING TO THIS
AGREEMENT AS AN INDIVIDUAL, “CUSTOMER” REFERS TO YOU INDIVIDUALLY. IF YOU
ARE AGREEING TO THIS AGREEMENT AS A REPRESENTATIVE OF AN ENTITY, YOU
REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND
“CUSTOMER” REFERS TO THAT ENTITY AND ALL THE USERS SPECIFIED IN THE ORDER
FORM. IF CUSTOMER DOES NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT,
DO NOT DOWNLOAD OR OTHERWISE USE THE SOFTWARE REFERENCED IN THE
ORDER FORM.
CUSTOMER’S USE OF THE SOFTWARE REQUIRES REGISTRATION FOR AN ACCOUNT
AT WWW.NANOME.AI AND ACCEPTANCE OF THE NANOME TERMS OF SERVICE
LOCATED AT WWW.NANOME.AI/TERMS AND THE NANOME PRIVACY POLICY LOCATED
AT WWW.NANOME.AI/PRIVACY WHICH SOLELY GOVERNS CUSTOMER’S USE OF ALL
NANOME MOBILE APPLICATIONS, AND CLOUD OR SAAS SERVICES, INCLUDING THE
NANOME MARKETPLACE AND VIRTUAL ROOMS. CUSTOMER HEREBY CONFIRMS THAT
IT HAS READ AND UNDERSTANDS THE NANOME TERMS OF SERVICE AND THE
NANOME PRIVACY POLICY.
1. DEFINITIONS.
1.1. ​“Affiliate” means any entity, now or hereafter existing (so long as such entity does not
have its own agreement with Supplier for use of the Software or access and use of the
Supplier’s Services) that directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with the subject entity. For purposes of this definition,
“control” means direct or indirect possession of the power to direct or cause the direction of the
management and policies of an entity, whether through the ownership of voting securities, by
contract or otherwise. An entity shall be considered an “Affiliate” only so long as that entity
meets the foregoing definition.
1.2. ​“Ancillary Services” means implementation, training or consulting services that
Supplier may perform as described in a SOW executed by the parties.
1.3. ​“Authorized Purposes” means Customer’s internal business purposes if the License
Term is not for an Evaluation License. If the License Term is for an Evaluation License, then
“Authorized Purposes” means Customer’s internal testing and evaluation use only. If the
License Term is for an Educational License, then “Authorized Purposes” means Customer’s
educational, research or training purposes use only.
1.4. ​“Beta License” means a license granted to Customer with respect to a pre-release
version of the Software for the period specified in the Order Form, and that is not supported,
may contain bugs or errors (but shall not knowingly contain any undisclosed Malicious Code),
and may be subject to additional terms that shall be provided by Supplier to Customer.
1.5. ​“Customer Data” means all data submitted, stored, posted, displayed, or otherwise
transmitted by or on behalf of Customer or any User and received and analyzed by the
Software.
1.6. ​“Customer System” means Customer’s internal website(s), servers and other
equipment and software, including, without limitation, mobile devices and virtual reality
hardware systems.
1.7. ​“Delivery Date” means the date, set forth in the applicable Order Form, on which the
Software is scheduled to be made available to Customer.
1.8. ​“Documentation” means the printed, paper, electronic or online user instructions and
help files made generally available by Supplier for use with the Software, as may be updated
from time to time by Supplier.
1.9. ​“Educational License” means a license with respect to the Software that has been
designated as such by Supplier to an educational institution, a student, a training facility or other
person or entity for educational, research or training purposes for the applicable License Term
and that may be subject to additional terms that shall be provided by Supplier to Customer.
1.10. ​“Evaluation License” means a non-production license granted to Customer with respect
to a Version of the Software for the applicable License Term and which may have limited
functionality or features.
1.11. ​“Free License” means a license to a Version of the Software that is provided free of
charge to Customer and contains a limited feature set.
1.12. ​“Intellectual Property Rights” means all intellectual property rights or similar proprietary
rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c)
trademarks, trade names, domain names and trade dress and the goodwill associated
therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case,
including any registrations of, applications to register, and renewals and extensions of, any of
the foregoing in any jurisdiction in the world.
1.13. ​“License Term” means the license period for Customer’s use of the Software set forth
in an Order Form and any renewals or extensions thereof. Unless otherwise specified in the
applicable Order Form, the License Term for an Evaluation License is limited to thirty (30) days
from the Delivery Date.
1.14. ​“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful
or malicious code, files, scripts, agents or programs.
1.15. ​“Marketplace” means the virtual marketplace offered or maintained by Supplier or its
affiliates as the “Marketplace” which may include allowing customers to acquire for free or to
purchase license rights to Plugins, software, content and other virtual and digital assets from
Supplier and third parties.
1.16. ​“Non-GA Solutions” means Supplier products or services that are not generally
available to Supplier customers, including, without limitation, Beta Licenses, and that may be
subject to additional terms that shall be provided by Supplier to Customer.
1.17. ​“Open Source Software” means all software that is available under the GNU Affero
General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General
Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any
other license that approved by the Open Source Initiative (www.opensource.org).
1.18. ​“Order Form” means the ordering documents for Services and licenses for Software
purchased from Supplier that are entered into hereunder by the parties from time to time,
including modifications, supplements and addenda thereto. Order Forms are incorporated
herein. If there is any inconsistency or conflict between an Order Form and this Agreement, the
Agreement controls, unless the Order Form specifically identifies by Section reference the
provision that such Order Form is modifying, and then such change will apply for such Order
Form only. Affiliates of Customer may purchase Services and licenses for the Software subject
to this Agreement by executing Order Forms hereunder, and by executing an Order Form, that
Affiliate of Customer shall be bound by this Agreement as if it were an original party hereto.
1.19. ​“Plugins” means a software component offered or sold via a Marketplace that adds a
specific feature to the Software, whether developed by Supplier or a third party. Plugins may be
supplied to Customer subject to separate or additional terms and conditions provided to
Customer by Supplier at the time of acquisition.
1.20. ​“Services” means the Support Services and any Ancillary Services.
1.21. ​“SOW” means a written statement of work entered into and signed by the parties
describing Ancillary Services to be provided by Supplier to Customer.
1.22. ​“Software” means the Version of the software product (with the corresponding specific
features of such Version) and any Supplier Plugins specified in an Order Form and any Supplier
Updates that Supplier provides to Customer in accordance with Support Services that Customer
is entitled to receive pursuant to this Agreement, all in object code form only. For all purposes
of this Agreement, “Software” excludes any Open Source Software and all Third Party Offerings,
such as third party Plugins, software, content and other virtual and digital assets.
1.23. ​“Support Services” means the support and maintenance services offered by Supplier
and purchased by Customer pursuant to an Order Form.
1.24. ​“Third Party Offerings” means certain software or services delivered or performed by
third parties that are required for the operation of the Software, such as the Photon engine and
the Oculus Desktop Client, and any associated products provided by third parties, such as third
party Plugins, that interoperate with the Software.
1.25. ​“Updates” means bug fixes, patches and maintenance releases to the applicable
Version of the Software to the extent made generally available by Supplier to its licensees.
1.26. ​“Users” means Customer’s or its Affiliates’ employees, consultants, contractors, agents
and third parties with whom Customer may transact business and (a) for whom access to the
Software during a License Term have been purchased pursuant to an Order Form, (b) who are
authorized by Customer or its Affiliates to access and use the Software, and (c) where
applicable, who have been supplied user identifications and passwords for such purpose by
Customer (or by Supplier at Customer’s request).
1.27. ​“Version” means a particular version or edition of the Software with a particular
bundling of features and functionality associated with such version features in a manner that
provides substantial additional or lesser functionality with respect to the Software, the
Marketplace or other Nanome cloud or SaaS services, such as access to public and private
virtual rooms, the ability to view or interact within a virtual room, access and storage of public or
private designs and other virtual assets, etc. Different Versions of the Software consist of the
Pro version, the Plus version, the Free License, the Educational License, the Evaluation License
and the Beta License.
1.28. ​“Virtual Rooms” means the private or public virtual rooms offered and maintained by
Supplier or its affiliates as such which may include allowing customers to access and maintain
virtual rooms and other multi-user capabilities and functions with other users and permit users to
submit, upload and/or post information, opinions, messages, comments, virtual assets and other
content and material.
2. ORDERS; LICENSES; AND RESTRICTIONS.
2.1 Orders. Subject to the terms and conditions contained in this Agreement, Customer may
purchase licenses for Users to use the Software pursuant to Order Forms. Unless otherwise
specified in the applicable Order Form, (a) Software may be used by the users initially named
(which may be assigned as set forth below), and in no event more than the number of Users
specified, in the applicable Order Form, (b) an unlimited number of additional User licenses may
be added at any time during the applicable License Term at such pricing as shall be set forth in
the Order Form for the additional User licenses, and invoiced separately from the then-existing
User licenses for the remainder of such License Term, and (c) the added User licenses shall
terminate upon expiration of the License Term as the pre-existing User licenses. Unless
otherwise provided in the applicable Order Form, User licenses are for designated Users only
and cannot be shared or used by more than one User, but may be reassigned to new Users
replacing former Users who no longer require ongoing use of the Software. Customer agrees
that its purchases hereunder are neither contingent on the delivery of any future functionality or
features nor dependent on any oral or written public comments made by Supplier regarding any
future functionality or features.
2.2 License Grant. Subject to Customer’s compliance with the terms and conditions
contained in this Agreement, Supplier hereby grants to Customer, during the relevant License
Term, a limited, non-exclusive, non-assignable/non-transferable (except as expressly permitted
herein) right for its Users to use and reproduce the applicable Version of the Software specified
in the Order Form in accordance with the Documentation in each case solely for Customer’s
Authorized Purposes and not for the benefit of any other person or entity. Customer may make
a reasonable number of backup copies of the Software solely for Customer’s internal use
pursuant to the license granted in this Section. Customer’s use of the Software may be subject
to certain limitations, such as, for example, limits on storage capacity for Customer Data. Any
such limitations will be specified either in the Order Form or in the Documentation.
2.3 Restrictions. Customer shall not, directly or indirectly, and Customer shall not permit any
User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to
discover the source code or underlying ideas or algorithms of the Software; (b) modify,
translate, or create derivative works based on any element of the Software or any related
Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to
use the Software; (d) use the Software for timesharing purposes or otherwise for the benefit of
any person or entity other than for the benefit of Customer and Users; (e) remove any
proprietary notices from the Documentation; (f) publish or disclose to third parties any evaluation
or benchmarking of the Software without Supplier's prior written consent; (g) use the Software
for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or
performance of the Software; (i) introduce any Open Source Software into the Software; or (j)
attempt to gain unauthorized access to the Software or Supplier’s systems or networks.
2.4 Reservation of Rights. Except as expressly granted in this Agreement, there are no
other licenses granted to Customer, express, implied or by way of estoppel. All rights not
granted in this Agreement are reserved by Supplier.
3. THIRD PARTY OFFERINGS.
3.1 Use of Third Party Offerings. Supplier or third parties may from time to time make Third
Party Offerings available to Customer through the Marketplace, Virtual Rooms or otherwise.
Any acquisition by Customer of any such Third Party Offerings, and any exchange of data
between Customer and any provider of a Third Party Offering, is solely between Customer and
the applicable provider of the Third Party Offering. Supplier does not warrant or support any
Third Party Offering, whether or not they are available via a Supplier Marketplace or Virtual
Rooms or designated by Supplier as “approved”, “certified” or otherwise, except as specified in
an Order Form. Supplier shall not be responsible for any disclosure, modification or deletion of
Customer Data resulting from any such access by the providers of Third Party Offerings.
3.2 Integration with Third Party Offerings. The Software may contain features designed to
interoperate with Third Party Offerings (e.g., Google, Facebook/Oculus or Twitter applications).
To use such features, Customer may be required to obtain access to such Third Party Offering
from their providers. If the provider of any Third Party Offering ceases to make the Third Party
Offering available for interoperation with the corresponding Software features on reasonable
terms, certain features of the Software may not be available to Customer.
4. DELIVERY; ACCOUNT REGISTRATION.
4.1 Delivery. Supplier will make the Software available for download to Customer from a
secure server. The Software will be deemed accepted upon delivery and may not be rejected
by Customer.
4.2 Account Registration; Login. Customer will be required to register for an account in
order to use the Software which will be subject to the Nanome Terms of Service and Privacy
Policy. Customer will be required to submit certain personal information when registering for an
account. Customer will be required to log into Customer’s account in order to access and use
the Software. Upon such login, Supplier will authenticate Customer’s login information in order
to verify Customer’s access to the Software.
5. CUSTOMER OBLIGATIONS.
5.1 Customer System. Customer is responsible for (a) obtaining, deploying and maintaining
the Customer System, and all computer hardware, software, modems, routers and other
computer and communications equipment necessary for Customer, its Affiliates and their
respective Users to use the Software; and (b) paying all third party fees and access charges
incurred in connection with the foregoing. Except as specifically set forth in this Agreement, an
Order Form or an SOW, Supplier shall not be responsible for supplying any hardware, software
or other equipment to Customer under this Agreement. In the event that Supplier does supply
to Customer any hardware or other equipment, such hardware or equipment may be supplied to
Customer subject to separate terms and conditions provided to Customer by Supplier and the
acquisition of such hardware will be subject to the manufacturer’s standard terms.
6. MAINTENANCE AND SUPPORT SERVICES.
6.1 Maintenance and Support. Subject to the terms and conditions of this Agreement
(including payment of the applicable fees, if any), Supplier will use commercially reasonable
efforts to provide the Support Services to the extent that Customer has purchased the
applicable Support Level (Level 1, 2 or 3) during the Order process or on the applicable Order
Form which are as described at www.nanome.ai/support, as the same may be updated.
Support Services may include Updates generally issued by Supplier to customers during the
applicable License Term. In no event will Support apply with respect to Third Party Offerings.
6.2 Support Term; Termination. Unless otherwise specified in an Order Form, Supplier will
provide Support Services during the License Term starting on the Delivery Date (the “Support
Period”).
6.3 Non-GA Solutions and Evaluation Licenses. Except as expressly set forth in an Order
Form, no Support Services are offered or made in connection with this Agreement for a Non-GA
Solutions or Evaluation Licenses (other than Level One support for Evaluation Licenses) and
Supplier will not be obligated in any way to correct any errors or deficiencies in the Software or
to provide Updates or new builds.
7. ANCILLARY SERVICES.
7.1 Supplier shall use commercially reasonable efforts to timely perform the Ancillary
Services as set forth in applicable mutually executed SOWs. Each SOW will include, at a
minimum: (a) a description of the scope of Ancillary Services, (b) any work product or other
deliverables to be provided to Customer (each a “Deliverable”), (c) the schedule for the
provision of Ancillary Services, and (d) the applicable fees and payment terms for such Ancillary
Services. All SOWs shall be deemed part of and subject to this Agreement. If there is any
inconsistency between an SOW and this Agreement, the SOW shall control. If either Customer
or Supplier requests a change to the scope of Ancillary Services described in a SOW, the party
seeking the change shall propose such change by written notice. Promptly following the other
party’s receipt of the written notice, the parties shall discuss and agree upon the proposed
changes. Supplier will prepare a change order document describing the agreed changes to the
SOW and any applicable change in fees and expenses (a “Change Order”). Change Orders are
not binding unless and until executed by both parties. Executed Change Orders shall be
deemed part of, and subject to, this Agreement. Supplier and Customer shall cooperate to
enable Supplier to perform the Ancillary Services according to the dates of performance and
delivery terms set forth in each SOW. In addition, Customer shall perform any Customer
obligations specified in each SOW. In the event the Ancillary Services are not performed in
accordance with the terms of the applicable SOW, Supplier shall notify Customer in writing no
later than thirty (30) calendar days after performance of the affected Ancillary Services by
Supplier, Customer’s notice shall specify the basis for non-compliance with the SOW and if
Supplier agrees with the basis for non-compliance, then at Supplier’s sole option, Supplier shall
re-perform the Ancillary Services at no additional charge to Customer or refund to Customer the
applicable fees for the affected Deliverable or Ancillary Service. THE FOREGOING
CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SUPPLIER’S SOLE
AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR
NON-PERFORMANCE OF THE ANCILLARY SERVICES.
8. FEES AND PAYMENT.
8.1 Fees. Customer agrees to pay all fees specified in all Order Forms and SOWs using one
of the payment methods Supplier supports. Except as otherwise specified in this Agreement or
in an Order Form, (a) fees are quoted and payable in United States dollars and certain
cryptocurrencies (such as Bitcoin, Ethereum and Matryx) at their then current market rate, as
determined by Supplier, (b) fees are based on licenses purchased for the number of Users
specified in the Order Form, (c) payment obligations are non-cancelable and fees paid are
non-refundable and (d) are payable in advance. User license fees are based on the License
Term specified in the Order Form beginning on the Activation Date; therefore, fees for licenses
for additional Users or Plugins added in the middle of a License Term will be charged for a
prorated License Term. All amounts payable under this Agreement will be made without setoff
or counterclaim, and without any deduction or withholding.
8.2 Invoices and Payment. All fees for Software and applicable Support Services will be
invoiced in advance and in accordance with the applicable Order Form. Fees for Ancillary
Services will be invoiced as set forth in an applicable SOW or Order Form. Except as otherwise
set forth in the applicable Order Form or SOW, Customer agrees to pay all invoiced amounts
within thirty (30) calendar days of the invoice date. Customer is responsible for providing
complete and accurate billing and contact information to Supplier and notifying Supplier of any
changes to such information.
8.3 Overdue Charges. If Supplier does not receive fees by the due date, then at Supplier’s
discretion, (a) such charges may accrue late interest at the rate of One Percent (1%) of the
outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from
the date such payment was due until the date paid; and (b) Supplier may condition future
purchases of Software and Support Services on payment terms shorter than those specified in
Section 8.2 or require prepayment.
8.4 Payment Disputes. Supplier agrees that it will not exercise its rights under Section 8.3 if
the applicable charges are under reasonable and good-faith dispute and Customer is
cooperating diligently to resolve the dispute.
8.5 Taxes. “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental
assessments imposed by any jurisdiction, country or any subdivision or authority thereof
including, but not limited to federal, state or local sales, use, property, excise, service,
transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with this
Agreement or any instrument, order form or agreement required hereunder, and all interest,
penalties or similar liabilities with respect thereto, except such taxes imposed on or measured
by a party’s net income. Notwithstanding the foregoing, Taxes shall not include payroll taxes
attributable to the compensation paid to workers or employees and each party shall be
responsible for its own federal and state payroll tax collection, remittance, reporting and filing
obligations. Fees and charges imposed under this Agreement or under any order form or
similar document ancillary to or referenced by this Agreement shall not include Taxes except as
otherwise provided herein. Customer shall be responsible for all of such Taxes. If, however,
Supplier has the legal obligation to pay Taxes and is required or permitted to collect such Taxes
for which Customer is responsible under this section, Customer shall promptly pay the Taxes
invoiced by Supplier unless Customer has furnished Supplier with valid tax exemption
documentation regarding such Taxes at the execution of this Agreement or at the execution of
any subsequent instrument, order form or agreement ancillary to or referenced by this
Agreement. Customer shall comply with all applicable tax laws and regulations. Customer
hereby agrees to indemnify Supplier for any Taxes and related costs paid or payable by
Supplier attributable to Taxes that would have been Customer’s responsibility under this Section
8.5 if invoiced to Customer. Customer shall promptly pay or reimburse Supplier for all costs and
damages related to any liability incurred by Supplier as a result of Customer’s non-compliance
or delay with its responsibilities herein. Customer’s obligation under this Section 8.5 shall
survive the termination or expiration of this Agreement.
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
9.1 Mutual Representations and Warranties. Each party represents, warrants and
covenants that: (a) it has the full power and authority to enter into this Agreement and to
perform its obligations hereunder, without the need for any consents, approvals or immunities
not yet obtained; and (b) its acceptance of and performance under this Agreement shall not
breach any oral or written agreement with any third party or any obligation owed by it to any
third party to keep any information or materials in confidence or in trust.
9.2 Non-Generally Available Solutions. From time to time Supplier may, in its sole
discretion, invite Customer to try Non-GA Solutions. Customer may accept or decline any such
trial in its sole discretion. Any Non-GA Solutions will be clearly designated as Beta, pilot, limited
release, developer preview, non-production or by a description of similar import. Non-GA
Solutions are provided for evaluation purposes and not for production use, are not supported,
will likely contain bugs or errors (but shall not knowingly contain any undisclosed Malicious
Code), and may be subject to additional terms that shall be provided by Supplier to Customer
prior to or concurrent with Supplier’s invitation to the applicable Non-GA Solution. Non-GA
Solutions are not considered “Software” hereunder. Supplier has the right to discontinue
Non-GA Solutions at any time in its sole discretion and may never make them generally
available.
9.3 Software Warranty. Unless otherwise set forth in the applicable Order Form, Supplier
warrants that during the period of six (6) months after the Delivery Date (the “Warranty Period”)
the Software will function substantially in conformance with the Documentation. If Customer
becomes aware of the Software not functioning in substantial conformance with the
Documentation (a “Defect”), Customer must provide Supplier with written notice that includes a
reasonably detailed explanation of the Defect within the Warranty Period. If Supplier is able to
reproduce the Defect in Supplier’s own operating environment, Supplier will use commercially
reasonable efforts to promptly correct the Defect or provide a replacement software product to
Customer with substantially similar functionality, or at Supplier’s option, terminate the License
Term for the defective Software and refund to Customer the fees paid for that defective
Software (as well as any fees paid for any Support Services not received). THE FOREGOING
SETS FORTH SUPPLIER’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE
AND EXCLUSIVE REMEDY FOR ANY DEFECTIVE SOFTWARE.
9.4 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 7.1 AND 9,
THE SOFTWARE, SUPPORT SERVICES, ANCILLARY SERVICES, THIRD-PARTY
OFFERINGS AND ANY NON-GA SOLUTIONS ARE PROVIDED ON AN AS-IS BASIS AND
CUSTOMER’S USE THEREOF IS AT ITS OWN RISK. SUPPLIER DOES NOT MAKE, AND
HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED
REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION,
SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF
DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS,
WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF
DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY
SUPPLIER IN SECTIONS 7.1 AND 9 ARE FOR THE BENEFIT OF THE CUSTOMER ONLY
AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED BY
SUPPLIER PURSUANT TO THIS AGREEMENT IS LICENSED AND NOT SOLD. NO
WARRANTIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT
DURING THE LICENSE TERM OF ANY FREE LICENSE, EVALUATION LICENSE OR BETA
LICENSE.
NO AGENT OF SUPPLIER IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF
SUPPLIER AS SET FORTH HEREIN. SUPPLIER DOES NOT WARRANT THAT: (A) THE USE
OF THE SOFTWARE OR NON-GA SOLUTION WILL BE SECURE, TIMELY,
UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER
HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SOFTWARE WILL MEET
CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) THE SOFTWARE AND NON-GA
SOLUTIONS WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SOFTWARE
AND NON-GA SOLUTIONS WILL BE CORRECTED; OR (D) THE SERVER(S) THAT MAKE
ANY COMPONENTS OF THE SOFTWARE AND NON-GA SOLUTION AVAILABLE ARE FREE
OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SOFTWARE AND NON-GA
SOLUTION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS
INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
SUPPLIER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER
DAMAGES RESULTING FROM SUCH PROBLEMS.
10. INDEMNIFICATION.
10.1 Supplier Indemnity.
(a) General. During the License Term (other than with respect to a Fee License, an
Evaluation License or a Beta License), Supplier, at its expense, shall defend Customer and its
Affiliates and their respective officers, directors and employees (the “Customer Indemnified
Parties”) from and against all actions, proceedings, claims and demands by a third party (a
“Third-Party Claim”) alleging that the Software infringes any copyright or misappropriates any
trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs
(whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing
any such Third-Party Claim. Supplier’s obligations under this Section are conditioned upon (i)
Supplier being promptly notified in writing of any claim under this Section, (ii) Supplier having
the sole and exclusive right to control the defense and settlement of the claim, and (iii)
Customer providing all reasonable assistance (at Supplier’s expense and reasonable request) in
the defense of such claim. In no event shall Customer settle any claim without Supplier’s prior
written approval. Customer may, at its own expense, engage separate counsel to advise
Customer regarding a Claim and to participate in the defense of the claim, subject to Supplier’s
right to control the defense and settlement.
(b) Mitigation. If any claim which Supplier is obligated to defend has occurred, or in
Supplier’s determination is likely to occur, Supplier may, in its sole discretion and at its option
and expense (a) obtain for Customer the right to use the Software, (b) substitute a functionality
equivalent, non-infringing replacement for such the Software, (c) modify the Software to make it
non-infringing and functionally equivalent, or (d) terminate this Agreement and refund to
Customer any prepaid amounts attributable the period of time between the date Customer was
unable to use the Software due to such claim and the remaining days in the then-current
License Term.
(c) Exclusions. Notwithstanding anything to the contrary in this Agreement, the foregoing
obligations shall not apply with respect to a claim of infringement if such claim arises out of (i)
use of the Software in combination with any software, hardware, network or system not supplied
by Supplier where the alleged infringement relates to such combination, (ii) any modification or
alteration of the Software other than by Supplier, (iii) Customer’s continued use of the Software
after Supplier notifies Customer to discontinue use because of an infringement claim, (iv) use of
Open Source Software; (v) Customer’s violation of applicable law; (vi) Third Party Offerings; and
(vii) Customer System.
(d) Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF SUPPLIER
WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR
PROPRIETARY RIGHTS BY THE SOFTWARE OR OTHERWISE, AND CUSTOMER HEREBY
EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF SUPPLIER WITH
RESPECT THERETO. NO INDEMNITIES OF ANY KIND WHATSOEVER ARE MADE FOR
CUSTOMER’S BENEFIT DURING THE LICENSE TERM OF ANY FREE LICENSE,
EVALUATION LICENSE OR BETA LICENSE.
10.2 Customer Indemnity. Customer shall defend Supplier and its Affiliates, licensors and
their respective officers, directors and employees (“Supplier Indemnified Parties”) from and
against any and all Third-Party Claims which arise out of or relate to: (a) Customer’s use or
alleged use of the Software other than as permitted under this Agreement, (b) Customer or its
Affiliates’ Users use of the Software in violation of any applicable law or regulation, or the
Intellectual Property Rights or other rights of any third party, or (c) arising from the occurrence of
any of the exclusions set forth in Section 10.1(c) (Exclusions). Customer shall pay all damages,
costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a
final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Customer’s
obligations under this Section are conditioned upon (x) Customer being promptly notified in
writing of any claim under this Section, (y) Customer having the sole and exclusive right to
control the defense and settlement of the claim, and (z) Supplier providing all reasonable
assistance (at Customer’s expense and reasonable request) in the defense of such claim. In no
event shall Supplier settle any claim without Customer’s prior written approval. Supplier may, at
its own expense, engage separate counsel to advise Supplier regarding a Third-Party Claim and
to participate in the defense of the claim, subject to Customer’s right to control the defense and
settlement.
11. CONFIDENTIALITY.
11.1 Confidential Information. “Confidential Information” means any and all non-public
technical and non-technical information disclosed by one party (the “Disclosing Party”) to the
other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or
electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the
Disclosing Party identifies as confidential and proprietary, or that by the nature of the
circumstances surrounding the disclosure or receipt ought to be treated as confidential and
proprietary information, including but not limited to: (a) techniques, sketches, drawings, models,
inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae,
equipment, algorithms, software programs, software source documents, APIs, and other
creative works (whether or not copyrighted or copyrightable); (b) information concerning
research, experimental work, development, design details and specifications, engineering,
financial information, procurement requirements, purchasing, manufacturing, customer lists,
business forecasts, sales and merchandising and marketing plans and information; (c)
proprietary or confidential information of any third party who may disclose such information to
Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (d) the
terms of this Agreement and any Order Form or SOW. Confidential Information of Supplier shall
include the Software, the documentation, the pricing, and information regarding the
characteristics, features or performance of Beta Licenses and Non-GA Solutions. Confidential
Information also includes all summaries and abstracts of Confidential Information.
11.2 Non-Disclosure. Each party acknowledges that in the course of the performance of this
Agreement, it may obtain the Confidential Information of the other party. The Receiving Party
shall, at all times, both during the term of this Agreement and thereafter, use reasonable efforts
to keep in confidence and trust all of the Disclosing Party’s Confidential Information received by
it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other
than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s
rights under this Agreement. Each party agrees to secure and protect the other party’s
Confidential Information with the same degree of care and in a manner consistent with the
maintenance of such party’s own Confidential Information (but in no event less than reasonable
care), and to take appropriate action by instruction or agreement with its employees, Affiliates or
other agents who are permitted access to the other party’s Confidential Information to satisfy its
obligations under this Section. Customer acknowledges that Supplier will use reasonable efforts
to ensure the confidentiality and access security of information made available by Customer in a
private Virtual Room but that confidentiality cannot be absolutely guaranteed. The Receiving
Party shall not disclose Confidential Information of the Disclosing Party to any person or entity
other than its officers, employees, affiliates and agents who need access to such Confidential
Information in order to effect the intent of this Agreement and who are subject to confidentiality
obligations at least as stringent as the obligations set forth in this Agreement.
11.3 Exceptions to Confidential Information. The obligations set forth in Section 11.2
(Non-Disclosure) shall not apply to the extent that Confidential Information includes information
which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either
itself or through receipt directly or indirectly from a source other than one having an obligation of
confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of
the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise
ceases to be secret or confidential, except as a result of a breach of this Agreement or any
obligation of confidentiality by the Receiving Party. Nothing in this Agreement shall prevent the
Receiving Party from disclosing Confidential Information to the extent the Receiving Party is
legally compelled to do so by any governmental investigative or judicial agency pursuant to
proceedings over which such agency has jurisdiction; provided, however, that prior to any such
disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential
Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s
order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting
against any such disclosure and in obtaining a protective order narrowing the scope of the
compelled disclosure and protecting its confidentiality.
11.4 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential
Information may cause immediate and irreparable injury to the Disclosing Party and that, in the
event of such breach, the Receiving Party will be entitled, in addition to any other available
remedies, to seek immediate injunctive and other equitable relief, without bond and without the
necessity of showing actual monetary damages.
12. PROPRIETARY RIGHTS.
12.1 Software. As between Supplier and Customer, all right, title and interest in the Software
and any other Plugins, materials, software, virtual items and other content furnished or made
available hereunder or via the Marketplace or Virtual Rooms, and all modifications and
enhancements thereof, and all suggestions, ideas and feedback proposed by Customer
regarding any such items, including all copyright rights, patent rights and other Intellectual
Property Rights in each of the foregoing, belong to and are retained solely by Supplier or
Supplier’s licensors and providers, as applicable. If the License Term is for an Evaluation
License or any Non-GA Solutions (including Beta Licenses), Customer shall periodically (and, in
any case, not less than once every thirty (30) days or more frequently as provided in the Order
Form) provide Supplier with written feedback regarding Customer’s use of the Software, the
functionality of the Software, any bugs, errors or deficiencies that Customer encounters
regarding the operation and functionality of the Software and any suggestions that Customer
may have regarding improvement of such operation and functionality (“Feedback”).
Additionally, Customer shall promptly respond to any questions that Supplier may have
regarding such Feedback or to any other questions Supplier may have regarding Customer’s
use of the Software. Customer hereby does and will irrevocably assign to Supplier all Feedback
and all Intellectual Property Rights in the Feedback.
12.2 Customer Data. As between Supplier and Customer, all right, title and interest in (a) the
Customer Data, (b) other information input into the Software by Customer (collectively, “Other
Information”) and (c) all Intellectual Property Rights in each of the foregoing, belong to and are
retained solely by Customer. Customer hereby grants to Supplier a limited, non-exclusive,
royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the
Customer Data as may be necessary for Supplier to provide the Software and Services and any
services available to Customer via the Marketplace or Virtual Rooms, and a non-exclusive,
perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and
distribute the Other Information as a part of the Aggregated Statistics (as defined in Section
12.3 below). As between Supplier and Customer, Customer is solely responsible for the
accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
12.3 Aggregated Statistics. Notwithstanding anything else in these Terms or otherwise,
Supplier may monitor Customer’s use of the Software and use data and information related to
such use, Customer Data, and Other Information in an aggregate and anonymous manner,
including to compile statistical and performance information related to the provision and
operation of the Software (“Aggregated Statistics”). As between Supplier and Customer, all
right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein,
belong to and are retained solely by Supplier. Customer acknowledges that Supplier will be
compiling Aggregated Statistics based on Customer Data, Other Information, and information
input by other customers into the Software and Customer agrees that Supplier may (a) make
such Aggregated Statistics publicly available, and (b) use such information to the extent and in
the manner required by applicable law or regulation and for purposes of data gathering,
analysis, and service enhancement, provided that such data and information does not identify
Customer or its Confidential Information.
12.4 Supplier Developments. All inventions, works of authorship and developments
conceived, created, written, or generated by or on behalf of Supplier, whether solely or jointly,
including without limitation, in connection with Supplier’s performance of the Ancillary Services
hereunder, including (unless otherwise expressly set forth in an applicable SOW) all
Deliverables (“Supplier Developments”) and all Intellectual Property Rights therein, shall be the
sole and exclusive property of Supplier. Customer agrees that, except for Customer
Confidential Information, to the extent that the ownership of any contribution by Customer or its
employees to the creation of the Supplier Developments is not, by operation of law or otherwise,
vested in Supplier, Customer hereby assigns and agrees to assign to Supplier all right, title and
interest in and to such Supplier Developments, including without limitation all the Intellectual
Property Rights therein, without the necessity of any further consideration.
12.5 Further Assurances. To the extent any of the rights, title and interest in and to Feedback
or Supplier Developments or Intellectual Property Rights therein cannot be assigned by
Customer to Supplier, Customer hereby grants to Supplier an exclusive, royalty-free,
transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through
multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title
and interest. If the foregoing assignment and license are not enforceable, Customer agrees to
waive and never assert against Supplier those non-assignable and non-licensable rights, title
and interest. Customer agrees to execute any documents or take any actions as may
reasonably be necessary, or as Supplier may reasonably request, to perfect ownership of the
Feedback and Supplier Developments. If Customer is unable or unwilling to execute any such
document or take any such action, Supplier may execute such document and take such action
on Customer’s behalf as Customer’s agent and attorney-in-fact. The foregoing appointment is
deemed a power coupled with an interest and is irrevocable.
12.6 License to Deliverables. Subject to Customer’s compliance with this Agreement,
Supplier hereby grants Customer a limited, non-exclusive, non-transferable license during the
License Term to use the Deliverables solely in connection with Customer’s authorized use of the
Software. Notwithstanding any other provision of this Agreement: (i) nothing herein shall be
construed to assign or transfer any Intellectual Property Rights in the proprietary tools, source
code samples, templates, libraries, know-how, techniques and expertise (“Tools”) used by
Supplier to develop the Deliverables, and to the extent such Tools are delivered with or as part
of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the
Deliverables; and (ii) the term “Deliverables” shall not include the Tools.
13. LIMITATION OF LIABILITY.
13.1 No Consequential Damages. NEITHER SUPPLIER NOR SUPPLIER’S LICENSORS
OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA,
BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUPPLIER OR
SUPPLIER’S LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING
OUT OF THE LICENSING, PROVISION OR USE OF THE SOFTWARE, ANCILLARY
SERVICES, SUPPORT SERVICES OR THE RESULTS THEREOF. SUPPLIER WILL NOT BE
LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
13.2 Limits on Liability. NEITHER SUPPLIER NOR ITS LICENSORS OR SUPPLIERS
SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN
AMOUNT EQUAL TO THE LESSER OF (a) THE AMOUNTS PAID BY CUSTOMER TO
SUPPLIER UNDER THIS AGREEMENT DURING THE PERIOD OF SIX (6) MONTHS
PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, AND (b) THE AMOUNT
OF FEES PAID BY CUSTOMER IN A SINGLE LICENSE TERM.
13.3 Essential Purpose. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS
SECTION 13 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR
LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE AND WITHOUT
REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY OR OTHERWISE.
14. TERM AND TERMINATION; AUTOMATIC RENEWAL.
14.1 Term. The term of this Agreement commences on the Effective Date and continues until
the expiration or termination of all License Term(s), unless earlier terminated as provided in this
Agreement. Except as otherwise specified in the applicable Order Form, License Terms (other
than for Evaluation Licenses and Non-GA Solutions, including Beta Licenses) for all Users shall
automatically renew for additional periods equal to the expiring License Term unless one party
gives the other written notice of non-renewal prior to the desired date of expiration. The per-unit
pricing during any automatic renewal term shall be the same as that during the immediately
prior term unless Supplier has given Customer written notice (either through an e-mail or notice
on the website) of a pricing increase at least thirty (30) days before the end of such prior term, in
which case the pricing increase shall be effective upon renewal and thereafter; provided
however that no such pricing increase shall occur until after expiration of the then current
License Term. Evaluation Licenses and Non-GA Solutions, including Beta Licenses, will
terminate at the end of their respective License Term unless the parties enter into an Order
Form for a new License Term.
14.2 Termination for Cause. A party may terminate this Agreement and any SOW (and all
License Term(s)) upon written notice to the other party in the event the other party (a) files a
petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within
sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an
assignment for the benefit of its creditors or ceases to function as a going concern or to conduct
its operations in the normal course of business and such termination shall occur immediately
upon notice; or (b) commits a material breach of any provision of this Agreement and does not
remedy such breach within thirty (30) days (or ten (10) days after A failure to pay any fees
hereunder) after receipt of notice from the other party or such other period as the parties may
agree. Upon any termination for cause by Customer, Supplier shall refund Customer the pro
rated amount of any prepaid fees for the remainder of the terminated License Terms after the
effective termination date. Upon any termination for cause by Supplier, Customer shall pay any
unpaid fees covering the remainder of the term of all Order Forms after the effective date of
termination. In no event shall any termination relieve Customer of the obligation to pay any fees
payable to Supplier for the period prior to the effective date of termination.
14.3 Termination for Convenience. Either party shall have the right to terminate any License
Term for convenience on at least ten (10) days prior written notice to the other party. Pre-paid
fees for the then-current License Term are non-refundable unless Supplier exercises such
termination right for convenience in which case Supplier shall refund to Customer the pro rated
amount of any pre-paid fees for the terminated License Term.
14.4 Effects of Termination. Upon expiration or termination of this Agreement, (a) Customer’s
use of and access to the Software and Supplier's performance of all Support Services and
Ancillary Services shall cease; (b) all Order Forms and SOWs shall terminate; (c) all fees and
other amounts owed to Supplier shall be immediately due and payable by Customer, including
without limitation, all fees incurred under any outstanding SOW up through the date of
termination for any Ancillary Services completed and a pro-rated portion of the fees incurred for
any partially completed Ancillary Services; and (d) in the case of a termination for convenience
by Supplier or termination by Customer due to Supplier’s breach, Supplier will refund to
Customer the amount of any pre-paid fees for the terminated License Term and pre-paid fees
for Support Services for the terminated portion of the Support Period. Within ten (10) days of
the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or
at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential
Information then in the Receiving Party’s possession or control, including any copies, extracts or
portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has
complied with the foregoing.
14.5 Survival. This Section and Sections 1, 2.4, 8, 9, 10, 11, 12, 13, 14.4, and 15 shall
survive any termination or expiration of this Agreement.
15. MISCELLANEOUS.
15.1 Notices. Supplier may give notice to Customer by means electronic mail to Customer’s
e-mail address on record with Supplier, or by written communication sent by first class postage
prepaid mail or nationally recognized overnight delivery service to Customer’s address on
record with Supplier. Customer may give notice to Supplier by written communication sent by
e-mail to [email protected] for by first class postage prepaid mail or nationally recognized
overnight delivery service addressed to Supplier, 7770 Regents Rd Suite #113, Box #102, San
Diego, CA 92122, Attention: Nanome Inc. Notice shall be deemed to have been given upon
receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and
notices to be made or given pursuant to this Agreement shall be in the English language.
15.2 Governing Law, Dispute Resolution. This Agreement and the rights and obligations of
the parties to and under this agreement shall be governed by and construed under the laws of
the United States and the State of California as applied to agreements entered into and to be
performed in such State without giving effect to conflicts of laws rules or principles. The parties
agree that the United Nations Convention on Contracts for the International Sale of Goods is
specifically excluded from application to this Agreement. The parties further agree to waive and
opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or
any version thereof, adopted by any state of the United States in any form. Any disputes arising
out of or in connection with this Agreement, including but not limited to any question regarding
its existence, interpretation, validity, performance or termination, or any dispute between the
parties arising from the parties’ relationship created by this Agreement, shall be heard in the
state and federal courts located in San Diego County, State of California and the parties hereby
consent to exclusive jurisdiction and venue in such courts.
15.3 Publicity. Supplier has the right to reference and use Customer’s name and trademarks
and disclose the Software provided hereunder in each case in Supplier business development
and marketing efforts, including without limitation Supplier’s web site and marketing materials.
In the event that Customer publishes any Customer Data resulting from Customer’s use of the
Software, Customer shall include a reference providing that the Software was used as a tool.
15.4 U.S. Government Customers. If Customer is a Federal Government entity, Supplier
provides the Software, including related software and technology, for ultimate Federal
Government end use solely in accordance with the following: Government technical data rights
include only those rights customarily provided to the public with a commercial item or process
and Government software rights related to the Software include only those rights customarily
provided to the public, as defined in this Agreement. The technical data rights and customary
commercial software license is provided in accordance with FAR 12.211 (Technical Data) and
FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015
(Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer
Software or Computer Software Documentation). If greater rights are needed, a mutually
acceptable written addendum specifically conveying such rights must be included in this
Agreement.
15.5 Export. The Software utilizes software and technology that may be subject to United
States and foreign export controls. Customer acknowledges and agrees that the Services shall
not be used, and none of the underlying information, software, or technology may be transferred
or otherwise exported or re-exported to countries as to which the United States maintains an
embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any
person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or
the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated
Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change
without notice. By using the Software, Customer represents and warrants that it is not located
in, under the control of, or a national or resident of an Embargoed Country or Designated
National, or that has been designated by the U.S. Government as a “terrorist supporting”
country. The Software may use encryption technology that is subject to licensing requirements
under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council
Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export
laws and assume sole responsibility for obtaining licenses to export or re-export as may be
required. Supplier and its licensors make no representation that the Software is appropriate or
available for use in other locations. Any diversion of the Customer Data contrary to law is
prohibited. None of the Customer Data, nor any information acquired through the use of the
Software, is or will be used for nuclear activities, chemical or biological weapons, or missile
projects.
15.7 General. Customer shall not assign its rights hereunder, or delegate the performance of
any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets,
operation of law, or otherwise, without the prior written consent of Supplier. Any purported
assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this
Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the
parties thereto. With the exception of Affiliates of Customer who have executed Order Forms
under this Agreement, there are no third-party beneficiaries to this Agreement. Except as
otherwise specified in this Agreement, this Agreement may be amended or supplemented only
by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties.
No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective
unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of
this Agreement is found invalid or unenforceable that term will be enforced to the maximum
extent permitted by law and the remainder of the Terms will remain in full force. The parties are
independent contractors and nothing contained herein shall be construed as creating an
agency, partnership, or other form of joint enterprise between the parties. This Agreement,
including all applicable Order Forms, SOWs and separate or additional terms referred to herein,
constitute the entire agreement between the parties relating to this subject matter and
supersedes all prior or simultaneous understandings, representations, discussions,
negotiations, and agreements, whether written or oral. Except for payment obligations
hereunder, neither party shall be liable to the other party or any third party for failure or delay in
performing its obligations under this Agreement when such failure or delay is due to any cause
beyond the control of the party concerned, including, without limitation, acts of God,
governmental orders or restrictions, fire, or flood, provided that upon cessation of such events
such party shall thereupon promptly perform or complete the performance of its obligations
hereunder.
Nanome End User License Agreement ©2018 Nanome, Inc. All rights reserved. Nanome is a
trademark of Nanome, Inc. in the US and other countries.
Nanome, Inc. End User License Agreement, version 2.0 (July 2018)