| ABySS |
| Copyright 2009 Genome Sciences Centre |
| All rights reserved. |
| |
| Abyss SOFTWARE LICENSE AGREEMENT (ACADEMIC USE) |
| CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. This License |
| Agreement (the "Agreement") is a legal contract between you, your |
| employer, educational institution or organization (collectively, "You") |
| and the British Columbia Cancer Agency ("BCCA") with respect to the |
| license of ABySS, including all associated |
| documentation (collectively, the "Product"). |
| |
| BCCA is willing to license the Product to You only if You accept the |
| terms and conditions of this Agreement. By clicking on the "I ACCEPT" |
| button, or by copying, downloading, accessing or otherwise using the |
| Product, You automatically agree to be bound by the terms of this |
| Agreement. IF YOU DO NOT WISH TO BE BOUND BY THE TERMS OF THIS |
| AGREEMENT, DO NOT COPY, DOWNLOAD, ACCESS OR OTHERWISE USE THE |
| PRODUCT. |
| |
| 1. AUTHORITY: In the event that You are an educational institution or |
| organization, Your representative who is clicking the "I ACCEPT" |
| button, or otherwise copying, downloading, accessing or using the |
| Product hereby, in their personal capacity, represents and warrants |
| that they possess the legal authority to enter into this Agreement |
| on Your behalf and to bind You to the terms of this Agreement. |
| |
| 2. LICENSE TO USE: BCCA hereby grants to You a personal, |
| non-exclusive, non-transferable, limited license to use the Product |
| solely for internal, non-commercial use for non-profit research or |
| educational purposes only on the terms and conditions contained in |
| this Agreement. The Product may be installed on a maximum of one |
| machine per Qualified User at Your premises only. A copy of the |
| Product installed on a single common machine may be shared for |
| internal use by Qualified Users only. In order to be a "Qualified |
| User", an individual must be a student, researcher, professor, |
| instructor or staff member of a non-profit educational institution |
| or organization who uses the Product solely for non-profit research |
| or educational purposes. |
| |
| 3. RESTRICTIONS: You acknowledge and agree that You shall not, and |
| shall not authorize any third party to: |
| (a) make copies of the Product, except as provided in Section 2 and |
| except for a single backup copy, and any such copy together with the |
| original must be kept in Your possession or control; |
| (b) modify, adapt, decompile, disassemble, translate into another |
| computer language, create derivative works of, or otherwise reverse |
| engineer the Product, or disclose any trade secrets relating to the |
| Product, except as permitted in Section 5; |
| (c) license, sublicense, distribute, sell, lease, transfer, assign, |
| trade, rent or publish the Product or any part thereof and/or copies |
| thereof, to any third party; |
| (d) use the Product to process any data other than Your own; |
| (e) use the Product or any part thereof for any commercial or |
| for-profit purpose or any other purpose other than as permitted in |
| Section 2; or |
| (f) use, without its express permission, the name of BCCA. |
| |
| 4. INTELLECTUAL PROPERTY RIGHTS: Subject to Section 5 below, all |
| patents, copyrights, trade secrets, service marks, trademarks and |
| other proprietary rights in or related to the Product and any |
| improvements, modifications and enhancements thereof are and will |
| remain the exclusive property of BCCA or its licensors. You agree |
| that You will not, either during or after the termination of this |
| Agreement, contest or challenge the title to or the intellectual |
| property rights of BCCA or its licensors in the Product or any |
| portion thereof. |
| |
| 5. OWNERSHIP OF IMPROVEMENTS: In the event that the Product, in the |
| form provided to You, includes source code (the "Source Code"), |
| You are entitled to make improvements, modifications and |
| enhancements to the Source Code (collectively, "Improvements") |
| which Improvements are to be used by You for non-profit research |
| and educational purposes only and You shall be the owner of those |
| Improvements that You directly make and of all intellectual |
| property rights to such Improvements, subject to the foregoing |
| limits on Your use and distribution of such Improvements. You |
| hereby grant to BCCA a perpetual, non-exclusive, worldwide, |
| fully-paid, irrevocable license to use such Improvements for any |
| purposes whatsoever, and to sublicense such Improvements including |
| the right for third parties to sublicense the same, in perpetuity |
| to the extent such rights are not limited in duration under |
| applicable law, without identifying or seeking Your |
| consent. Notwithstanding the foregoing, You acknowledge that BCCA |
| and its licensors will retain or own all rights in and to any |
| pre-existing code or other technology, content and data that may be |
| incorporated in the Improvements. For greater certainty, this |
| Section applies solely to the Source Code and shall not give You |
| any rights with respect to the object code or any other portion or |
| format of the Product which use, for greater certainty, is limited |
| as set forth in this Agreement including as set out in Section 3(b) |
| above. You acknowledge and agree that you will provide copies of |
| Improvements to BCCA in such format as reasonably requested by BCCA |
| at any time upon the request of BCCA. |
| |
| 6. CONFIDENTIALITY: You acknowledge that the Product is and |
| incorporates confidential and proprietary information developed, |
| acquired by or licensed to BCCA. You will take all reasonable |
| precautions necessary to safeguard the confidentiality of the |
| Product, and will not disclose any information about the Product to |
| any other person without BCCA's prior written consent. You will |
| not allow the removal or defacement of any confidential or |
| proprietary notice placed on the Product. You acknowledge that any |
| breach of this Section 6 will cause irreparable harm to BCCA and |
| its licensors. |
| |
| 7. NO WARRANTIES: THIS PRODUCT IS PROVIDED TO YOU BY BCCA IN ORDER TO |
| ALLOW YOU TO OBTAIN ACCESS TO LEADING ACADEMIC RESEARCH. THE PRODUCT |
| IS PROVIDED TO YOU ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY |
| KIND. NO WARRANTY, REPRESENTATION OR CONDITION EITHER EXPRESS OR |
| IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR |
| CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, PERFORMANCE, |
| DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE SHALL |
| APPLY. BCCA DOES NOT WARRANT THAT THE PRODUCT WILL OPERATE ON A |
| CONTINUOUS OR TROUBLE FREE BASIS. |
| |
| 8. LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY |
| APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BCCA TO |
| YOU EXCEED THE AMOUNT YOU HAVE PAID TO ACQUIRE THE PRODUCT ("MAXIMUM |
| AMOUNT") AND WHERE YOU HAVE NOT PAID ANY AMOUNT FOR THE PRODUCT THEN |
| THE MAXIMUM AMOUNT SHALL BE DEEMED TO BE CDN$100.00. IN NO EVENT SHALL |
| BCCA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL |
| DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS OR |
| SAVINGS, REGARDLESS OF WHETHER THEY HAVE BEEN ADVISED OF THE |
| POSSIBILITY OF SUCH DAMAGE. EXCEPT TO THE EXTENT THAT THE LAWS OF A |
| COMPETENT JURISDICTION REQUIRE LIABILITIES BEYOND AND DESPITE THESE |
| LIMITATIONS, EXCLUSIONS AND DISCLAIMERS, THESE LIMITATIONS, EXCLUSIONS |
| AND DISCLAIMERS SHALL APPLY WHETHER AN ACTION, CLAIM OR DEMAND ARISES |
| FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, |
| NEGLIGENCE, STRICT LIABILITY OR ANY OTHER KIND OF CIVIL OR STATUTORY |
| LIABILITY CONNECTED WITH OR ARISING FROM THIS AGREEMENT. YOU AGREE |
| THAT THE FOREGOING DISCLAIMER OF WARRANTIES AND LIMITATION OF |
| LIABILITY ARE FAIR IN LIGHT OF THE NATURE OF THE RIGHTS GRANTED HEREIN |
| AND THE AMOUNT OF FEES PAID BY YOU IN RESPECT OF THE PRODUCT. |
| |
| 9. INDEMNITY: You will indemnify, defend and hold harmless BCCA, its |
| board of directors, staff and agents from and against any and all |
| liability, loss, damage, action, claim or expense (including |
| attorney's fees and costs at trial and appellate levels) in |
| connection with any claim, suit, action, demand or judgement |
| (collectively, "Claim") arising out of, connected with, resulting |
| from, or sustained as a result of Your use of the Product or the |
| downloading of the Product, including without limitation, any Claim |
| relating to infringement of BCCA's intellectual property rights or |
| the intellectual property rights of any third party. |
| |
| 10. SUPPORT AND MAINTENANCE: You acknowledge and agree that, unless |
| and to the extent expressly agreed by BCCA in a separate written |
| document, the Product is provided to You without any support or |
| maintenance from BCCA and, for greater certainty, BCCA shall have |
| no obligation to issue any update or upgrade to any Product. |
| |
| 11. TERM: This Agreement is effective until terminated. You may |
| terminate this Agreement at any time by ceasing use of the Product |
| and destroying or deleting any copies of the Product. This |
| Agreement will terminate immediately without notice from BCCA if |
| You fail to comply with any provision of this Agreement. BCCA may |
| terminate this Agreement at any time upon notice to you where BCCA |
| determines, in its sole discretion, that any continued use of the |
| Product could infringe the rights of any third parties. Upon |
| termination of this Agreement, and in any event upon BCCA |
| delivering You notice of termination, You shall immediately purge |
| all Products from Your computer system(s), return to BCCA all |
| copies of the Product that are in Your possession or control, and |
| cease any further development of any Improvements. On any |
| termination of this Agreement Sections 1, 4, 6, 7, 8, 9, 13 and 14 |
| shall survive such termination. |
| |
| 12. GOVERNMENT END USERS: Where any of the Product is used, duplicated |
| or disclosed by or to the United States government or a government |
| contractor or sub contractor, it is provided with RESTRICTED |
| RIGHTS as defined in Title 48 CFR 52.227-19 and is subject to the |
| following: Title 48 CFR 2.101, 52.227-19, 227.7201 through |
| 227.7202-4, FAR 52.227-14, and FAR 52.227-19(c)(1-2) and (6/87), |
| and where applicable, the customary software license, as described |
| in Title 48 CFR 227-7202 with respect to commercial software and |
| commercial software documentation including DFAR 252.227-7013, |
| DFAR 252,227-7014, DFAR 252.227-7015 and DFAR 252.7018, all as |
| applicable. |
| |
| 13. USE OF THE DOWNLOAD SERVICE: You acknowledge and agree that you |
| will be responsible for all costs, charges and taxes (where |
| applicable) arising out of Your use of the Product and the |
| downloading of the Product. You acknowledge that You are |
| responsible for supplying any hardware or software necessary to |
| use the Product pursuant to this Agreement. |
| |
| 14. GENERAL PROVISIONS: |
| (a) This Agreement will be governed by the laws of the Province of |
| British Columbia, and the laws of Canada applicable therein, excluding |
| any rules of private international law that lead to the application of |
| the laws of any other jurisdiction. The United Nations Convention on |
| Contracts for the International Sale of Goods (1980) does not apply to |
| this Agreement. The courts of the Province of British Columbia shall |
| have non-exclusive jurisdiction to hear any matter arising in |
| connection with this Agreement. |
| (b) USE OF THE PRODUCT IS PROHIBITED IN ANY JURISDICTION WHICH DOES |
| NOT GIVE EFFECT TO THE TERMS OF THIS AGREEMENT. |
| (c) You agree that no joint venture, partnership, employment, |
| consulting or agency relationship exists between You and BCCA as a |
| result of this Agreement or Your use of the Product. |
| (d) You hereby consent to Your contact information and any other |
| personally identifiable information that You provide to us being |
| disclosed to and maintained and used by us and our business partners |
| for the purposes of (i) managing and developing our respective |
| businesses and operations; (ii) marketing products and services to You |
| and your staff; and (iii) developing new and enhancing existing |
| products. You further agree that we may provide this information to |
| other persons as required to satisfy any legal requirements and to any |
| person that acquires some or all of the assets of BCCA. Where any of |
| the personally identifiable information that You provide to us is in |
| respect of individuals other than Yourself (such as Your staff) then |
| You represent and warrant to use that You have obtained all necessary |
| consents and authorizations from such individuals in order to comply |
| with this provision. Please see the BCCA website for further |
| information regarding personally identifiable information. |
| (e) This Agreement is the entire Agreement between You and BCCA |
| relating to this subject matter. You will not contest the validity of |
| this Agreement merely because it is in electronic form. No |
| modification of this Agreement will be binding, unless in writing and |
| accepted by an authorized representative of each party. |
| (f) The provisions of this Agreement are severable in that if any |
| provision in the Agreement is determined to be invalid or |
| unenforceable under any controlling body of law, that will not affect |
| the validity or enforceability of the remaining provisions of the |
| Agreement. |
| (g) You agree to print out or download a copy of this Agreement and |
| retain it for Your records. |
| (h) You consent to the use of the English language in this Agreement. |
| (i) You may not assign this Agreement or any of Your rights or |
| obligations hereunder without BCCA's prior written consent. BCCA, at |
| its sole discretion may assign this Agreement without notice to You. |