HCE PLATFORM AGREEMENT

 

This Agreement is entered into as Effective Date between Hitachi High-Tech America, Inc. ("Licensor") and you ("Licensee").

 

1.           DEFINITIONS.  As used in this Agreement:

 

"Effective Date" means the date on which Licensee registers for access to the HCE Platform and accepts the terms of this Agreement.

 

"Executable Code" means the fully compiled version of a software program that can be executed by a computer and used by an end user without further compilation. 

 

"Fees" means the fees to be paid in the manner selected and agreed upon by Licensee through the HCE Platform.

 

"HCE Platform" means the Human Chromosome Explorer platform and all accompanying funcationality, including the Website, Licensed Software, and HCE Results, made available by Licensor to Licensee under this Agreement. 

 

"HCE Results" means all text, data and other information (in any format or medium) that originates on or is otherwise produced by the HCE Platform in conjunction with the analysis and processing of Licensee Content, including all derivative data.

 

"Intellectual Property Rights" means all copyrights, trademarks, service marks, trade secrets, patents, patent applications, contract rights, and other proprietary rights.

 

"Licensed Software" means the software program or programs, and any modified, updated or enhanced versions of such programs, that Licensor in its sole discretion makes available to Licensee as part of the HCE Platform pursuant to this Agreement.

 

"Licensee Content" means all text, data, and other information (in any format or medium) Licensee uploads to and/or enters into the HCE Platform.

 

"Source Code" means the human-readable version of a software program that can be compiled into Executable Code.

 

"Website" means Licensor’s website on which the HCE Platform resides and to which Licensee has access under this Agreement. For purposes of this Agreement, the Website URL is:  hce.structuralvariation.bio.

 

2.            LICENSE RIGHTS.

 

2.1         License Grant.  Subject to the terms and conditions of this Agreement (including Licensee's obligation to pay the Fees), Licensor grants to Licensee a non‑exclusive, non‑transferable (except as permitted under Section 10.4), license, without the right to sublicense, to (a) access and use the HCE Platform worldwide for Licensee’s internal purposes; (b) to upload or enter Licensee Content to the HCE Platfrom for the purposes of storage and obtaining HCE Results; and (c) to download, publish, publicly present, and manipulate the HCE Results for [ human genetic and genomic research].  This license does not give Licensee any rights to the Executable Code or Source Code of the Licensed Software or any other functionality of the HCE Platform.  The license granted herein is granted solely to Licensee and not, by implication or otherwise, to any parent, subsidiary, or affiliate of Licensee.

 

2.2         Restrictions on Use.  Licensee acknowledges that the HCE Platform, and its structure, organization and Source Code constitute valuable trade secrets of Licensor.  Accordingly, Licensee agrees not to: (a) modify, adapt, alter, translate, or create derivative works from the HCE Platform; (b) merge the Licensed Software or other HCE Platform functionality with other software; (c) sublicense, lease, rent, loan, or otherwise transfer (except in connection with an assignment of Licensee's rights permitted under Section 10.4) its access to the HCE Platform (including the Licensed Software) to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the Source Code for the Licensed Software; (e) copy the Licensed Software onto any computer; or (f) otherwise use the access to the HCE Platform or the Licensed Software except as expressly allowed under Section 2.

2.3         Proprietary Rights.  The HCE Platform, and all worldwide Intellectual Property Rights therein, are the exclusive property of Licensor.  All rights in and to the HCE Platform not expressly granted to Licensee in this Section 2 are reserved by Licensor.  Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, to a license under any of Licensor's existing or future patents; Licensor agrees that it will not assert any of its rights under such patents against Licensee based upon the exercise by Licensee of the license granted in Section 2.1.  Licensee will not remove, alter, or obscure any proprietary notices (including copyright notices) of Licensor on the HCE Platform.

 

3.           USE OF HCE PLATFORM

 

3.1         Access to HCE Platform.  Licensee shall obtain access to the HCE Platform by completing the registration process and accepting the terms of this Agreement. Through the registration process, Licensor shall enable Licensee to establish a user name, password, and other login credentials as needed to access the HCE Platform.   

 

3.2         Licensee Content.  Licensee shall have sole control over the Licensee Content.  Licensor shall not supplement, modify or alter any Licensee Content, and Licensee grants Licensor permission to store the Licensee Content on the HCE Platform for Licensee’s use. Files containing the Licensee Content will be made available to Licensee upon request, although Licensee shall reimburse Licensor for any costs incurred by Licensor in providing such files to Licensee.

 

3.3         HCE Platform Hosting Standards.  Licensor shall use commercially reasonable efforts to make the HCE Platform available to Licensee with system availability of at least 99.5% up time excluding scheduled and/or emergency maintenance periods. 

 

4.            FEES AND PAYMENT.  Licensee will pay Fees to Licensor for use of the HCE Platform.  All payments must be made in U.S. dollars.  The Fees exclude all applicable sales, use and other taxes and Licensee will be responsible for payment of all such taxes (other than taxes based on Licensor's income), fees, duties and charges, and any related penalties and interest, arising from the payment of the Fees.  Licensee will make all payments of the Fees to Licensor free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of the Fees to Licensor will be Licensee’s sole responsibility, and Licensee will provide Licensor with official receipts issued by the appropriate taxing authority, or such other evidence as the Licensor may reasonably request, to establish that such taxes have been paid.  Any portion of the Fees that is not paid when due will accrue interest at eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.

 

5.           CONFIDENTIALITY.  Each party (the "Disclosing Party") may from time to time during the term of this Agreement disclose to the other party (the "Receiving Party") certain Confidential Information, as defined below.  The Receiving Party shall not disclose the Confidential Information of the Disclosing Party using the same degree of care which the Receiving Party ordinarily uses with respect to its own Confidential Information, but in no event with less than reasonable care. The Receiving Party shall not use the Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and shall limit the disclosure of the Confidential Information of the Disclosing Party to the employees or agents of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement, and who are, with respect to the Confidential Information of the Disclosing Party, bound in writing by confidentiality terms no less restrictive than those contained herein.  "Confidential Information" means any non-public or proprietary information of the Disclosing Party disclosed to the Receiving Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including without limitation, product information, client lists, and trade secrets.  Notwithstanding the foregoing, the following is Licensor's Confidential Information: any information, in whatever form, disclosed by Licensor that relates to the HCE Platform or the Licensed Software and is non-public. Confidential Information may also include the information of a third party disclosed to the Disclosing Party under an obligation of confidentiality.  Confidential Information, however, shall not include any information which the Receiving Party can establish: (i) was in the public domain prior to the time of disclosure to the Receiving Party by the Disclosing Party; (ii) becomes publicly known after disclosure to the Receiving Party through no action or inaction of Receiving Party; (iii) is in the possession of the Receiving Party, without confidentiality restrictions, at the time of disclosure to the Receiving Party by the Disclosing Party as shown by Receiving Party's files and records immediately prior to the time of disclosure; or (iv) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided, however, that the Receiving Party shall provide prompt notice thereof to the Disclosing Party and shall use its reasonable best efforts to obtain a protective order or otherwise prevent public disclosure of such information.

 

6.           WARRANTIES.

 

6.1          HCE Platform Performance. For the period of time Licensee is provided access to the HCE Platform (the "Software Warranty Period"), Licensor warrants that the HCE Platform, when used as permitted under this Agreement, will operate substantially as described on the Website.  Licensor does not warrant that Licensee's use of the HCE Platform will be error-free, uninterrupted, or secure, or will meet Licensee’s expectations.  In addition, the security mechanism implemented by the HCE Platform has inherent limitations and Licensee is solely responsible for determining that this mechanism sufficiently meets Licensee’s security and operational needs. Finally, Licensor is providing the HCE Platform to Licensee for the purpose of academic research only and not for providing information for the diagnosis, prevention or treatment of any disease or impairment of, or the assessment of the health of, human beings. 

 

6.2          Licensee Content Warranty.  Licensee warrants that Licensee possesses all necessary right, title, or interest in and to all Licensee Content as necessary to use the Licensee Content for the purposes set forth in this Agreement without infringing the rights of any third party.  Licensee further warrants that it shall not upload, enter into, or place on the HCE Platform any Licensee Content that: (a) constitutes Protected Health Information (as that term is defined by the Health Insurance Portability and Accountability Act); (b) infringes on the Intellectual Property Rights of any third party or any rights of publicity or privacy; (c) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (d) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (e) is obscene, child pornographic or indecent; or (f) contains any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

 

6.3         Disclaimers.  EXCEPT AS TO THE EXPRESS WARRANTIES IN THIS SECTION 6, LICENSOR LICENSES THE HCE PLATFORM TO LICENSEE ON AN "AS IS" BASIS.  LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE HCE PLATFORM, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON‑INFRINGEMENT OF THIRD PARTY RIGHTS.  LICENSEE ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS SECTION 6.

 

7.               INDEMNITY CLAIMS.

 

7.1         Licensor Indemnity.  Licensor will defend at its own expense any action against Licensee brought by a third party to the extent that the action is based upon a claim that the Licensed Software infringes any U.S. Intellectual Property Rights, and Licensor will pay those costs and damages finally awarded against Licensee in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Licensee notifying Licensor promptly in writing of such action, Licensee giving Licensor sole control of the defense thereof and any related settlement negotiations, and Licensee cooperating and, at Licensor's request and expense, assisting in such defense.  If the HCE Platform becomes, or in Licensor's opinion is likely to become, the subject of an infringement claim, Licensor may, at its option and expense, either: (a) procure for Licensee the right to continue using the HCE Platform; (b) replace or modify the HCE Platform so that it becomes non-infringing; or (c) terminate this Agreement and give Licensee a refund of the Fees paid by Licensee less a reasonable allowance for the period of time Licensee has used the HCE Platform.  Notwithstanding the foregoing,  Licensor will have no obligation under this Section 7.1 or otherwise with respect to any infringement claim based upon: (i) any use of the HCE Platform not in accordance with this Agreement or for purposes not intended by Licensor; or (ii) any use of the HCE Platform in combination with other products, equipment, software, or data not supplied by Licensor.  THIS SECTION 7.1 STATES LICENSOR'S ENTIRE LIABILITY AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.

 

7.2         Licensee Indemnity.  Licensee shall hold harmless, indemnify and defend Licensor against any liability, damages or other amounts payable, including reasonable attorneys fees, arising from any actual or threatened claim, suit or other legal proceeding brought by a third party based on a claim arising out of or relating to: (i) any negligent act or omission by Licensee; (ii) the failure by Licensee to comply with any applicable law, statute or regulation relating to the use of the HCE Platform; (iii) any breach of any warranty or obligation of Licensee under this Agreement; and (iv) Licensee’s use of the HCE Platform, except for any such claims that are subject to Licensor’s indemnity obligation under Section 7.1 herein. The foregoing indemnity obligation is contingent on Licensor providing Licensee prompt written notice of any such suit or claim, permitting Licensee sole control of the defense or settlement thereof, and providing reasonable cooperation in the defense or settlement of the suit or claim. THIS SECTION 7.2 STATES LICENSEE’S ENTIRE LIABILITY AND LICENSOR’S SOLE AND EXCLUSIVE REMEDY FOR ANY ABOVE-MENTIONED INDEMNITY CLAIMS

 

8.            LIABILITY LIMITATION.  IN NO EVENT WILL LICENSOR  BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT.  IN NO EVENT WILL LICENSOR'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE HCE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID TO LICENSOR HEREUNDER.  LICENSEE ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. 

 

9.           TERM AND TERMINATION

 

9.1         Term.  The term of this Agreement will begin on the Effective Date and will continue in force until terminated immediately pursuant to Section 9.2.

 

9.2         Termination.  Licensee may terminate this Agreement at any time, with or without cause, upon written notice to Licensor.  Licensor may terminate this Agreement, effective immediately upon written notice to Licensee, if: (a) Licensee breaches any provision in Section 2.2; (b) Licensee fails to pay any portion of the Fees when due within five (5) days after receiving written notice from Licensor that payment is due; or (c) Licensee breaches any other provision of this Agreement and does not cure the breach within fifteen (15) days after receiving written notice thereof from Licensor.

 

9.3         Effects of Termination.  Upon termination of this Agreement for any reason, any amounts owed to Licensor under this Agreement before such termination will be immediately due and payable, all licensed rights granted in this Agreement will immediately cease to exist, Licensor may immediately block Licensee's access to the HCE Platform, and Licensee must promptly discontinue all use of the HCE Results.

 

              9.4          Survival.  Sections 1 ("Definitions"), 2.2 ("Restrictions on Use"), 5 ("Confidentiality"), 6 ("Warranties"), 7 ("Indemnity Claims"), 8 ("Liability Limitation"), 9.3 ("Effects of Termination"), and 10 ("General") will survive termination of this Agreement for any reason.

 

10.         GENERAL

 

10.1       Compliance with Laws.  Licensee will comply with all applicable law, including all export and import control laws and regulations, in its use of the HCE Platform.  Licensee will defend, indemnify and hold harmless Licensor from and against any violation of such laws or regulations by Licensee or any of its agents, officers, directors, or employees.

 

10.2       Assignment.  Licensee may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Licensed Software) to any third party without Licensor's prior written consent.  Any attempted assignment or transfer in violation of the foregoing will be void.

 

10.3       Notices.  All notices, consents, and approvals under this Agreement must be delivered in writing by courier, by overnight mail service, by electronic mail (email), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address identified as part of the registration process, and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner.  Either party, may change its address by giving notice of the new address to the other party.

 

10.4       Governing Law and Venue.  This Agreement will be governed by the laws of the State of California without reference to conflicts of law principles.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.  Any action or proceeding arising from or relating to this Agreement may be brought in a federal court in the Northern District of California or in state court in Alameda County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.

10.5       Dispute Resolution.  The parties agree that the exclusive venue for any action or proceeding arising from or relating to this Agreement shall only be in a federal or state court of competent jurisdiction in a trial before a judge only.  THE PARTIES EACH AGREE TO WAIVE THEIR SEPARATE RIGHT TO A TRIAL BY A JURY.

 

10.6       Remedies.  Except as provided in Sections 6 and 7, the parties' rights and remedies under this Agreement are cumulative.  Licensee acknowledges that the HCE Platform contains valuable trade secrets and proprietary information of Licensor, that any actual or threatened breach of Section 2.3 or 5 will constitute immediate, irreparable harm to Licensor for which monetary damages would be an inadequate remedy and that injunctive relief is an appropriate remedy for such breach.  Accordingly, Licensee agrees that Licensor shall be entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such breach or threatened breach by Licensee.  The parties agree and stipulate that Licensor shall be entitled to such injunctive relief without posting a bond and that nothing herein shall limit Licensor's right to any remedies at law.

10.7       Waiver.  All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

 

10. 8      Severability.  If any provision of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the remaining provisions will not be affected and will continue in full force and effect. Without limiting the generality of the foregoing, Licensee agrees that Section 8 will remain in effect notwithstanding the unenforceability of any provision in Section 6.

 

10.9       Construction.  The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement.  As used in this Agreement the word "including" means "including but not limited to".

 

              10.10     Force MajeureExcept for Licensee's obligations to pay Licensor hereunder, neither party shall be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control.

 

10.11     Entire Agreement.  This Agreement constitutes the final, complete and exclusive statement of the terms of the agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication between the parties, whether written or oral.  This Agreement may be amended only by a written document signed by both parties.  The terms on any purchase order or similar document submitted by Licensee to Licensor will have no effect.