C1™ Script Builder™
Fluidigm C1 Script/Protocol Development Software License Agreement
IMPORTANT - READ CAREFULLY THIS AGREEMENT BINDS YOUR EMPLOYER AND YOU INDIVIDUALLY
This Fluidigm C1 Script/Protocol Development Software License Agreement ("Agreement") is a legal agreement that governs the use of the C1 Script Builder software.
This Agreement is between the following parties:
- Fluidigm Corporation ("Fluidigm"); and
- As applicable, either (i) an individual licensing the C1 Script Builder and agreeing to this Agreement on his/her own behalf, or (ii) a company, institution, or other organization on whose behalf an employee (“Employee”) is licensing the C1 Script Builder and is agreeing to this Agreement on behalf of that organization, in which case the Employee REPRESENTS AND WARRANTS TO FLUIDIGM THAT HE/SHE IS AUTHORIZED TO AGREE TO THIS AGREEMENT ON BEHALF OF, AND TO SO BIND, THAT ORGANIZATION.
In this Agreement, "You" and "Your" shall mean, as applicable according to the preceding sentence, either the individual licensing the C1 Script Builder on his/her own behalf or the organization on behalf of which the Employee is agreeing to this Agreement.
You may only use C1 Script Builder by accepting the terms of this Agreement. By electronically accepting this Agreement on a computer terminal, You agree to be bound by all of the terms and conditions of this Agreement. If You do not agree with all of the terms and conditions of this Agreement, You must decline the terms and conditions and You will not be able or permitted to use C1 Script Builder.
- "Access Key" shall mean any user-specific and/or C1 System-specific identification code that Fluidigm, at its option, elects to use to enable and control Your access to and use of the C1 Script Builder. An Access Key may or may not be provided to You.
- “C1 Script” shall mean a software module, developed using the C1 Script Builder, that provides instructions to a Fluidigm C1™ single-cell auto prep systems (“C1 Systems”) to enable the C1 System to run a particular protocol.
- "C1 Script Builder" shall mean Fluidigm’s script development software program, however provided by Fluidigm, whether provided by Internet download, provided in tangible media (e.g., CD), or otherwise. “C1 Script Builder” includes, without limitation, any Updates provided by Fluidigm.
- "Documentation" shall mean any documentation, on-line read-me or help files for the C1 Script Builder.
- “Facility” shall mean Your facility located at Your address provided to Fluidigm in connection with accepting this Agreement.
- "Feedback" shall mean any suggestions, modifications, improvements, ideas, know-how (whether or not patentable), processes, designs, discoveries, works of authorship, or inventions that You may disclose or provide to Fluidigm related to the C1 Script Builder or Documentation.
- “Patent” means any worldwide patent (or utility model or similar right).
- “Update” means each patch, bug fix, error correction, update, upgrade, new version, new release, or other change to or replacement of the C1 Script Builder that Fluidigm provides. For the avoidance of doubt, Fluidigm has no obligation under this Agreement to create any Updates, or to provide any Updates.
- License Grants
- Software License. Subject to all of the terms and conditions in this Agreement, Fluidigm grants You a personal, non-exclusive, non-transferable, non-assignable license, under Fluidigm's intellectual property rights in the C1 Script Builder, solely to install, execute and operate the C1 Script
Builder only at the Facility, on one or more computers owned or controlled by You, solely to develop C1 Scripts for use only on C1 Systems owned or controlled by You or to which You have access, as set forth herein, and for no other use.
- Documentation License. Subject to all of the terms and conditions in this Agreement, Fluidigm grants You a personal, non-exclusive, non-transferable, non-assignable license to use the Documentation solely as necessary to exercise the license granted in Section 2.1. You are granted no right to, and You agree not to, modify or make any copies of any Documentation for any purpose unless pre-approved in advance and in writing by Fluidigm.
- Reservation of Rights. Fluidigm, its licensors and its suppliers reserve all rights in the C1 Script Builder and Documentation not expressly granted to You in this Agreement.
- License Restrictions
- Certain Restrictions. You shall not make, have made, import, sell, offer for sale, reproduce, distribute, publicly display, publicly perform, or modify or create a derivative work of, the C1 Script Builder or Documentation. You shall not permit access to the C1 Script Builder or Documentation through a network or over the Internet, as an application service provider (ASP) or otherwise. You shall not rent, lease, loan, time-share, assign or otherwise transfer the C1 Script Builder or Documentation or any part thereof. You shall not use the C1 Script Builder or Documentation in a service bureau arrangement. You shall not use the C1 Script Builder or Documentation for the benefit or on behalf of any third party, or make any C1 Script Builder or Documentation available to any third party.
- Additional Restrictions. In addition to all other restrictions in this Agreement, You shall
not: (i) create any translation or localization of the C1 Script Builder or Documentation; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the C1 Script Builder (except to the extent applicable laws specifically prohibit such restriction); (iii) use the C1 Script Builder or Documentation to develop any product or item (other than C1 Scripts as authorized herein); (iv) remove or alter any trademark, logo, copyright, patent markings or other proprietary notices, legends, symbols or labels on or in the C1 Script Builder or Documentation; or (v) publish any results of benchmark tests run on the C1 Script Builder or disclose C1 Script Builder features, errors or bugs to any third party without Fluidigm's prior written consent in each case.
- Script Distribution. You shall not disclose, distribute or make publicly available any of its C1 Scripts or instructions for creating any script except with written authorization from Fluidigm or in a venue provided by Fluidigm for such distribution.
- Ownership; Grantback
- Ownership of Software and Documentation. All rights, title and interest, including without limitation all intellectual property rights, in and to the C1 Script Builder and Documentation, are and shall remain the property of Fluidigm, its licensors and suppliers. You hereby acknowledge such ownership and agree to refrain from any action which may jeopardize, limit or interfere in any manner such ownership. The C1 Script Builder and Documentation are protected by copyright and other intellectual property, and by international treaties.
- Script Delivery. Upon the earlier of completion or first non-test use of each C1 Script developed by You pursuant to this Agreement, You shall promptly deliver to Fluidigm an electronic copy of that C1 Script, together with suitable documentation as to its function, protocol, and use. Fluidigm shall be entitled to use, without restriction or liability to You, information that is retained in the memories of Fluidigm's employees and contractors as a result of access to Your C1 Scripts. For clarity, no right is granted by You with respect to the chemistry required to execute any protocol implemented by any C1 Script.
- No Blocking. To help prevent blocking of development and use of C1 Scripts by Fluidigm and its other licensees, You agree not to seek or obtain any Patent right for any invention conceived or reduced to practice in connection with or arising out of use of C1 Script Builder or any associated protocol (any such Patent rights, “C1 Foreground Patent Rights”). Without limiting Fluidigm’s remedies, if You do obtain any C1 Foreground Patent Rights, You agree to grant, shall be deemed to have granted, and do hereby grant to Fluidigm a nonexclusive, worldwide, royalty free, fully paid, perpetual, irrevocable license, with the right to grant and authorize sublicenses, under the C1 Foreground Patent Rights, to exploit the C1
Foreground Patent Rights without restriction, including without limitation to make, have made, use, import, offer to sell, and sell C1 Scripts. For clarity, no license is granted by You with respect to the chemistry required to execute any protocol implemented by any C1 Script.
- Feedback License. You agree to and hereby do grant to Fluidigm, without any additional
consideration, a worldwide, nonexclusive, royalty-free, perpetual and irrevocable license, with the right to grant and authorize sublicenses, to use and exploit Feedback without restriction. You shall have no obligation to provide any Feedback to Fluidigm. All Feedback is provided by You AS IS and You shall have no liability with respect thereto other than for intentional misconduct.
You shall be deemed to have irrevocably accepted the C1 Script Builder and Documentation upon receipt. Any Access Key will be pre-installed or provided by Fluidigm. If a new Access Key is required due to a failure, then You shall provide Fluidigm with the appropriate identification codes, as specified by Fluidigm support personnel, to generate a new Access Key. The new Access Key will be promptly sent to You via e-mail.
You shall keep in confidence and trust and shall not disclose or disseminate, or permit any employee, agent or other person working under Your direction to disclose or disseminate, to any person or entity, the C1 Script Builder, Documentation, any Access Key, or any information and data related to any of the foregoing. You agree to employ at least the same methods and degree of care, but no less than a reasonable degree of care, to prevent such dissemination and disclosure as You employ for Your own trade secrets and other confidential and proprietary information. Your employees and agents may be given access to the C1 Script Builder or Documentation only on a need-to-know basis for the purpose of the license granted to You, and only if they have, either as a condition of employment or in order to access the C1 Script Builder or Documentation, agreed in writing to be bound by terms and conditions substantially similar to this section. The obligations in this section shall be in addition to, and shall not supersede, any similar obligations that may be contained in any nondisclosure agreement between Fluidigm and You.
- Warranty Disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FLUIDIGM, ITS LICENSORS AND ITS SUPPLIERS PROVIDE THE C1 SCRIPT BUILDER AND DOCUMENTATION, AND ANY SUPPORT OR OTHER SERVICES OR INFORMATION, AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY, OR ARISING OUT OF THE USE OR
PERFORMANCE, OF THE C1 SCRIPT BUILDER (including without limitation any resulting C1 Script) AND ANY DOCUMENTATION REMAINS WITH YOU.
- Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FLUIDIGM, ITS LICENSORS OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF PROFITS OR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION) ARISING OUT OF OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, AND EVEN IF FLUIDIGM, ITS LICENSORS OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FLUIDIGM’S (AND ITS LICENSORS’ AND SUPPLIERS’) AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS, IF ANY, PAID BY YOU TO FLUIDIGM UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Term and Termination
- Term. This Agreement shall be effective with respect to each party from acceptance in accordance with Section 5, and remain effective until terminated pursuant to this Agreement.
- Convenience. Either party may terminate this Agreement at any time for its convenience on written notice to the other party.
- Termination. The Agreement shall terminate thirty (30) days after written notice by Fluidigm of any material breach of this Agreement by You, unless You cure the breach within such thirty
(30) day period.
- Effects. In the event of any termination of this Agreement, within five (5) days of such termination, (a) You shall permanently destroy every copy of the C1 Script Builder and Documentation in Your possession or under Your control and send the Access Key as reported by the licensing system of the C1 Script Builder to email@example.com and (b) Sections 1, 2.3, 3.2(v), 3.3, 4, 6, 7, 8, 9.4 and 10 shall survive in perpetuity. You may continue to use any C1 Scripts created using the C1 Script Builder. Termination of this Agreement shall be in addition to all other rights and remedies.
- Export Control. You agree to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and shall not export or re-export the C1 Script Builder or Documentation in violation of any such restrictions, laws or regulations, or without all necessary approvals.
- U.S. Government End Users. The C1 Script Builder is "commercial computer software" as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement ("DFAR") and its successors.
- Notices. Any notice required or permitted hereunder shall be in English, in writing and shall be deemed to be properly given upon the earlier of (i) actual receipt by the addressee (including facsimile or e-mail) or (ii) five (5) business days after deposit in the mail, postage prepaid, when mailed by registered or certified airmail, return receipt requested, or (iii) two (2) business days after being sent via private industry courier to a party to such address as it may designate in a writing. Notices (a) to Fluidigm shall be to the attention of the Legal Department and sent by registered mail at 7000 Shoreline Court, Suite 100, South San Francisco 94080, and (b) to You shall be sent to the address provided to Fluidigm in connection with accepting this Agreement, or, in each case, to such other mailing or electronic mail address as such party may specify in a written notice to the other party. An electronic copy of the notice may also be sent via email to legal@Fluidigm.com and firstname.lastname@example.org.
- Publicity. Neither party will issue any press releases concerning this Agreement or the relationship between the parties without the prior written consent of the other party.
Authority. The individual accepting this Agreement on behalf of You represents and warrants that he/she is authorized and empowered to bind You, to all of the terms and conditions set forth in this Agreement.
- No Conflicting Funding. You represent and warrant that Your use of the C1 Script Builder and Documentation is not governed by any funding, grant or other terns or conditions, whether from the United States federal government or other institution, that would prevent You from complying with all of the terms and conditions of this Agreement.
- Independent Contractors. Your relationship with Fluidigm is that of an independent contractor, and nothing in this Agreement is intended to, or shall be construed to, create a partnership, agency, joint venture, employment or similar relationship.
- Assignment. You shall not assign, by operation of law or otherwise, this Agreement or any of Your rights or delegate any of Your obligations under this Agreement to any third party without the prior express written consent of Fluidigm. An "assignment" shall include any assignment or change of control in connection with any sale of all or substantially all of Your assets, any merger or acquisition of
You, or any event whereby the holders of the majority of Your voting equity immediately before such event will hold less that a majority of Your voting equity immediately after such event, whether any of the foregoing occurs in a single transaction or a series of transactions. Any attempted assignment in violation of this section shall be void.
- Choice of Law; Forum; Attorneys' Fees. This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of California, as such laws are applied to agreements entered into and to be performed entirely within California between California residents. The UN Convention for the International Sale of Goods shall have no application to this Agreement. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in San Mateo County, California, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in California, such personal jurisdiction shall be nonexclusive. In any suit or arbitration to enforce this Agreement, the prevailing party shall have the right to recover its costs, expenses, attorney's fees, and fees and expenses of expert witnesses.
- Waiver. The waiver by either party of a term or provision of this Agreement, or of the other party’s breach of this Agreement shall not be effective unless such waiver is in writing and signed by such party. No waiver by a party of a breach of this Agreement by the other party shall constitute a waiver of any other or subsequent breach by the other party.
- Severability. If any provision of this Agreement is held by a court of law to be illegal, invalid or unenforceable, (a) that provision shall be deemed amended to achieve an economic and legal effect that is as near as possible to that provided by the original provision and (b) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby.
- Equitable Relief. A breach by You of this Agreement related to the C1 Script Builder, Documentation or confidentiality will cause irreparable damage to Fluidigm for which money damages is not an adequate remedy. Therefore, if You breach, or threaten or attempt to breach, any such obligations, Fluidigm shall be entitled to obtain equitable relief, in any court or forum notwithstanding Section 10.9, to protect its interests, including but not limited to injunctive relief, as well as monetary damages and any other appropriate relief, without obligation to post bond.
- Entire Agreement. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all prior and contemporaneous representations, discussions, negotiations and agreements, whether written or oral. 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.
- English. The controlling language of this Agreement is English. If You have received a translation into another language, it has been provided for Your convenience only.
- Headings. The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning.