This CODEX Software License Agreement (the “Agreement”) is made between you and Akoya Biosciences, Inc. (“Akoya”) and governs your use of any CODEX-branded software programs provided to you by Akoya, including any updates, upgrades or enhancement thereto, all in executable code form (“Programs”), and any associated documentation (“Documentation” and, together with the Programs, the “Software”).
AKOYA IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT TERMS OF THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE. YOUR INSTALLING OR USING THE SOFTWARE WILL INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, AKOYA IS NOT WILLING TO LICENSE THE SOFTWARE TO YOU AND YOU (1) MAY NOT INSTALL OR USE THE SOFTWARE AND (2) MUST CONTACT AKOYA WITHIN THREE (3) DAYS OF RECEIPT TO ARRANGE FOR THE RETURN OF THE SOFTWARE. BY INSTALLING OR USING THE SOFTWARE, YOU ALSO REPRESENT AND WARRANT TO AKOYA THAT THE PERSON ACCEPTING THIS AGREEMENT ON YOUR BEHALF HAS THE AUTHORITY TO DO SO.
1. Applicability of this Agreement. This Agreement is intended to supplement the purchase terms and conditions or other legally binding agreement (“Purchase Terms”) governing your purchase or use of Akoya’s products or services (“Products”). In the event of any conflict between this Agreement and the Purchase Terms, the applicable provisions of the Purchase Terms shall control.
2. Grant of Rights.
2.1. License. Subject to the terms and conditions of this Agreement, Akoya hereby grants you a non-exclusive, non-transferable, personal, non-sublicensable right to use the Software solely in accordance with this Agreement and the Purchase Terms.
2.2. Reservation of Rights. Except as expressly set forth in Section 2.1, no right or license under any intellectual property rights of Akoya is granted, expressly or otherwise, to you hereunder, and all such rights are expressly reserved by Akoya. You acknowledge that that the Software is proprietary to Akoya and contains or embodies trade secrets of Akoya. You are solely responsible for determining whether you have all intellectual property rights necessary for your intended use of the Software.
3. Use Restrictions; Regulatory Compliance.
3.1. Use Restrictions. You shall:
(a) use the Software only in accordance with this Agreement and the Purchase Terms, and use the Programs only in accordance with the Documentation;
(b) use the Software only with (i) other Products or (ii) third party products specifically approved in the Documentation or otherwise by Akoya in writing;
(c) not sell, license, loan, donate or otherwise transfer or make available to any third party any Software;
(d) not copy (except for a limited number of copies of any non-firmware Software as reasonably required for you to exercise your license rights hereunder), modify, reverse engineer, decompile, disassemble or otherwise attempt to discover the underlying structure or technology of the Software, or use the Software for the purpose of developing any products or services that would compete with Akoya’s products or services;
(e) not circumvent or attempt to circumvent any protection mechanisms in the Software, including any such mechanism used to restrict or control the functionality of the Software;
(f) not alter or remove from the Software any trademarks, trade names, logos, patent or copyright notices or markings or add any other notices or markings to the Software;
(g) comply with any license, terms of service or similar agreement with respect to any third party products or services used by you in connection with the Software; and
(h) ensure that your employees and agents comply with any use, confidentiality or similar restrictions applicable to you under this Agreement.
3.2. Third Party Components. You acknowledge that the Software includes third party components that are subject to the terms and conditions of certain third party license agreements as described here, as such information may be updated by Akoya from time to time. To the extent any term or condition of any such third party license agreement conflicts with this Agreement, the applicable term(s) or condition(s) of such third party license agreement shall apply, but only to the applicable third party component and only to the extent necessary to remove the conflict. Any warranty disclaimers, liability limitations or exclusions, or other terms or conditions required by any such third party license agreement to be included in this Agreement are hereby included in this Agreement with respect to the applicable third party component.
3.3. Regulatory Compliance. The Software is labeled with a FOR RESEARCH USE ONLY or similar labeling statement. You shall not use the Software for any diagnostic procedures, clinical development or other activities that are inconsistent with such labeling statement. You acknowledge that the Software has not been approved, cleared, or licensed by the United States Food and Drug Administration or any other regulatory entity whether foreign or domestic for any specific intended use, whether research, commercial, diagnostic, or otherwise. You shall comply with all applicable laws, rules and regulations in connection with your use of the Software and shall ensure that you have any regulatory approvals necessary for such use.
4. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS PROVIDED IN THE PURCHASE TERMS, AKOYA MAKES NO, AND HEREBY EXPRESSLY DISCLAIMS ALL, WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT; ANY WARRANTY ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE; OR ANY WARRANTY THAT ANY PRODUCT WILL CONFORM TO ANY SPECIFICATIONS, MEET ANY REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION OR ERROR OR THAT ANY ERRORS WILL BE CORRECTED.
5. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, (A) AKOYA SHALL NOT BE LIABLE TO YOU FOR ANY COSTS OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, DATA OR BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, HOWEVER ARISING OR CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE), AND (B) AKOYA’S TOTAL AND CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, HOWEVER ARISING OR CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE AMOUNT PAID BY YOU TO AKOYA FOR THE PARTICULAR PRODUCT GIVING RISE TO SUCH LIABILITY.
6.1. Confidentiality. You shall keep confidential, and (except as otherwise required by applicable laws) not disclose to any third party without Akoya’s prior written consent, any non-public technical or commercial information of Akoya incorporated into, or otherwise disclosed to you by Akoya in connection with, the Software.
6.2. Governing Law. This Agreement, its interpretation, and the performance of the parties shall be governed by the laws of the state of California, without regard to its conflicts of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
6.3. Arbitration. In Akoya’s sole discretion, any dispute, claim or controversy arising out of or relating to this Agreement shall be determined by confidential binding arbitration, in the English language, administered by the American Arbitration Association in San Francisco, California. In all cases of arbitration each party shall bear its own costs and expenses and an equal share of the arbitrator’s fees; neither party nor an arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless required by law; the decision of the arbitrator shall be final and binding on the parties, provided that, the arbitrator shall not have the authority to alter any explicit provision of this Agreement; judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
6.4. Remedies for Breach. Without limiting any other remedies available to Akoya, if you breach any provision of this Agreement or the Purchase Terms (including any obligation to pay fees owed under the Purchase Terms), Akoya may, by written notice to you, terminate the license rights granted to you hereunder. Upon any such termination, you shall immediately return to Akoya or destroy all copies of the Software in your possession or under your control.
6.5. Notices. Any notice required or permitted hereunder shall be in writing and shall be deemed received (a) immediately if delivered in person, (b) on the third (3rd) business day following mailing if placed in the United States Mail, postage prepaid, by registered or certified mail with return receipt requested, (c) the following business day if placed with a nationally recognized overnight delivery service, or (d) upon confirmation of transmittal if sent by facsimile or e-mail, in each case addressed to the party at the party’s address set forth in the most recent purchase order. Each party may change its address for notice by giving written notice of the change to the other party in accordance with this paragraph.
6.6. Purchases for the U.S. Government. If you have licensed the Software for the U.S. Government or in support of a contract with the U.S. Government, you agree that the Software is a “commercial item,” consisting of “commercial computer software” and “commercial computer software documentation,” as those terms are defined in the applicable Federal Acquisition Regulations (“FAR”), and are licensed only as commercial items and with only those rights granted under this Agreement.. If you have licensed the Software in the name of the U.S. Government, (a) if the order is less than or equal to $3,000, then you agree that only this Agreement shall apply, and (b) if the order is greater than $3,000, then you agree that this Agreement shall apply supplemented only by the mandatory provisions of FAR 52.212-1, 52.212-3, 52.212-4 and 52.212-5. If you have licensed the Software in support of a contract with the U.S. Government, you agree that this Agreement shall apply supplemented only by the mandatory FAR flow-down clauses for commercial item subcontracts at 52.212-5(e) or 52.244-6. In the event of a conflict between the FAR provisions referenced herein and this Agreement, this Agreement shall take precedence to the maximum extent permitted by applicable law.
6.7. Export Compliance. The Software, any related technology, or information provided to you may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations thereunder (or the export regulations and laws of another country). Notwithstanding anything to the contrary in this Agreement, you agree not to use the Software in, or export or re-export the Software, any related technology, or information provided to you into, any country or to any person or entity, or in any manner, in violation of such controls or any other laws, rules or regulations of any country, state or jurisdiction.
6.8. Interpretation. All references herein to days mean calendar days unless specifically stated otherwise. The section headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation hereof. The English language shall govern the meaning and interpretation hereof.
6.9. General. This Agreement (together with the Purchase Terms) represents the entire agreement between the parties regarding the subject matter hereof and supersede all prior discussions, communications, agreements, and understandings of any kind between the parties. No amendment to this Agreement or waiver of any right, condition, or breach will be effective unless made in a writing signed by both parties. If any provision is held invalid or unenforceable, such provision shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the remaining terms will continue in full force and effect. The failure of either party to exercise any right granted herein or to require any performance of any term or the waiver by either party of any breach shall not prevent a subsequent exercise or enforcement of, or be deemed a waiver of any subsequent breach of, the same or any other term. Nothing herein shall constitute or create a joint venture, partnership, or any other similar arrangement between the parties. There are no third party beneficiaries to this Agreement.