PLEASE CAREFULLY REVIEW ALL OF THE TERMS SET FORTH IN THIS LICENSE AGREEMENT BEFORE CLICKING “I AGREE”, SIGNING OR OTHERWISE INSTALLING, USING, OR ACCESSING THE 10x GENOMICS SOFTWARE PRODUCT, AS BY DOING SO, YOU (“LICENSEE”) ARE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTAND THIS LICENSE AGREEMENT AND ARE AGREEING TO BE BOUND BY ALL OF ITS TERMS.
1.1 This agreement (“Agreement”) relates to the license, installation and/or use by you (the “Licensee”) of the software product(s) of 10x Genomics, Inc. (“10x”), identified herein and/or that accompanies these license terms, including any and all associated modules, documentation, and updates or revisions thereto.
1.2 By agreeing and/or otherwise proceeding with the installation of, use of or other access to the 10x software products, you acknowledge that you have read and understood all of the terms of this Agreement, and that you are agreeing to be bound by all of the terms set forth herein. 10x does not accept, and expressly rejects hereby any conflicting or additional terms presented by Licensee, and such terms shall have no effect, whether or not 10x communicates the rejection again, specifically after receipt of licensee’s terms. The Agreement consists only of these terms and any other terms that 10x issues or expressly accepts in a duly signed writing. Any additional software provided by 10x may be subject to additional and/or different terms and conditions.
2.1 "Product" means each item provided by 10x to Licensee, including any 10x Instrument, Licensed Software and/or 10x Consumable, listed in the applicable written sales quotation issued by 10x ("Quotation") or, in the event a Quotation is not issued, listed in 10x's then-current price list applicable to Buyer's jurisdiction, and identified in Buyer's purchase order.
2.2 "10x Instrument" means a 10x-branded instrument sold by 10x or an authorized distributor and/or reseller.
2.3 "10x Consumables" means 10x microfluidic cartridges and/or associated 10x-branded reagent kits, and labware, or any individual components of the foregoing, intended by 10x for use with 10x Instruments.
2.4 "Licensed Software" means the software (including Loupe™ Software and Loupe™-related components of Other Software) provided by 10x to Buyer and/or made available by 10x for download, in conjunction with Buyer’s purchase of a 10x Instrument, in object code or executable form only.
2.5 "Documentation" means the user documentation accompanying, or provided by 10x, whether physically, electronically, as available via download, or by any other means, regarding or for use in connection with, a Product or related service.
2.6 "Other Software" means (i) any 10x software or firmware, other than the Licensed Software, that 10x makes available for use with 10x Instruments or otherwise, and (ii) any third party software or firmware. "Other Software" may include open source software.
2.7 "Other License Terms" means, with respect to any Other Software, all of the terms, conditions and use restrictions set forth in the end user license agreement(s) and/or documentation accompanying and/or applicable to such Other Software.
2.8 "Usage Data" means any data and information regarding Buyer’s use of the Licensed Software. For clarity, Usage Data excludes biological data and results
3.0 Limited License
3.1 Limited License Grant. Subject to the terms, conditions and restrictions set forth herein and, with respect to Other Software, to the applicable Other License Terms, 10x hereby grants to Licensee a limited, non-exclusive, non-transferable, non-sublicensable license to use the Licensed Software and Documentation solely in connection with Licensee’s use of other Products in accordance with the then current Documentation. No other license or authorization is granted hereunder whether by implication, estoppel or otherwise, and 10x expressly reserves all rights not expressly granted hereunder. For example, and without limiting any of the foregoing, no right or license is granted or implied, and Licensee is not authorized to use any Product in combination with any product or method not provided, licensed or specifically recommended in writing by 10x for such use.
3.2 Title. Licensee acknowledges and agrees that the Licensed Software and Documentation is licensed and not sold by 10x, and that 10x retains all title to the Licensed Software and Documentation and each copy thereof provided to or generated by Licensee, which copies are licensed to Licensee hereunder for use in accordance with this Agreement.
3.3 Copies. Licensee may make a single machine-readable copy of the Licensed Software solely for backup or archival purposes. Licensee may make a reasonable number of copies of the Documentation solely for use in support of its use of the Licensed Software pursuant to this Agreement. Except as expressly provided in the foregoing sentence, Licensee is not authorized to make any copies of the Licensed Software or Documentation.
3.4 No Source Code. Licensee is granted no rights with respect to the Licensed Software source code. Licensee is granted no rights to, and Licensee agrees that it will not, and will not authorize or permit any third party to decompile, disassemble, or reverse engineer, or attempt to derive the source code for the Licensed Software, in whole or in part.
4.1 General Restrictions. Licensee shall not, and shall not authorize or permit any third party to: (a) sell, lease, license, sublicense, or otherwise transfer the Licensed Software or the Documentation; (b) provide, disclose, or make the Licensed Software or Documentation available to any third party, or permit access to or use of the Licensed Software or Documentation by any person other than Licensee's employees, agents, or contractors who are, by agreement, bound by the terms of this Agreement to the same extent as Licensee; (c) merge or combine the Licensed Software with other software, or modify the Licensed Software, or create any derivative software or any other software based upon, or any derivative work of, the Licensed Software or Documentation; or (d) modify or efface any titles, trademark symbols, copyright symbols, notices or legends, or any other proprietary markings on or in the Licensed Software or Documentation. All license restrictions specified in Sections 4.1 and 4.2 and elsewhere in the Agreement shall apply to the maximum extent permissible under applicable law. If Licensee believes that it has additional rights or the right to act contrary to the express license restrictions specified in this Agreement under mandatory laws (including, without limitation, national laws implementing Directive 91/250/EEC and similar laws), Licensee agrees that it shall provide 10x with at least 30 days prior written notice and any reasonably requested information before exercising such rights, to allow 10x to offer alternatives at 10x's sole discretion, for example interface information to achieve interoperability with independently created computer programs.
4.2 Regulatory Compliance. Licensee acknowledges that the Licensed Software does not have United States Food and Drug Administration ("FDA") or equivalent non-U.S. regulatory agency approval ("Approval"). Accordingly, Licensee acknowledges that the Licensed Software is intended FOR RESEARCH USE ONLY and NOT FOR USE IN DIAGNOSTIC PROCEDURES. Unless otherwise expressly stated by 10x in writing, no claim or representation is made or intended by 10x (i) as to any diagnostic or other clinical use of the Licensed Software; (ii) that any Licensed Software has any Approval for use in any diagnostic or other clinical procedure, or for any other use requiring compliance with any law, regulation or governmental policy concerning medical devices, laboratory tests or the like (collectively, "Regulatory Laws"); (iii) that any Licensed Software will satisfy the requirements of the FDA or any other regulatory agency; or (iv) that any Licensed Software or its performance is suitable or has been validated for clinical or diagnostic use, for safety and effectiveness, for any specific use or application, or for importation into Licensee's jurisdiction. Licensee agrees that if it elects to use the Licensed Software for a purpose that would subject Licensee, its customers or any Product to the application of Regulatory Laws or any other law, regulation or governmental policy, Licensee shall be solely responsible for obtaining any required Approvals and otherwise ensuring that the importation of the Products into Licensee's jurisdiction and Licensee's use of Products complies with all such laws, regulations and policies. The Licensed Software should be used by qualified professionals in strict accordance with applicable instructions, warnings and other information in user manuals and other Documentation. The burden of proof for safe use and handling of the Licensed Software is entirely the responsibility of Licensee.
4.3 U.S. Government End Users. The Licensed Software and Documentation provided by 10x pursuant to this Agreement are "commercial items," as the term is defined at 48 C.F.R. §2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the commercial computer software and commercial computer software documentation are licensed to United States Government end users (i) only as commercial items and (ii) with only those rights as are granted pursuant to the terms of this Agreement.
4.4 Other Software and Other License Terms. The Licensed Software may contain, be accompanied by and/or be intended by 10x to interact with, Other Software, which is provided under separate Other License Terms. Such Other Software and/or the applicable Other License Terms may be listed or identified in the Licensed Software or Documentation or contained in a file or directory provided with the delivery of the Licensed Software. Licensee's use of such Other Software in conjunction with the Licensed Software in a manner consistent with the terms of this Agreement is permitted. However, the Licensee may have broader rights with respect to the Other Software under the applicable Other License Terms and nothing in this Agreement is intended to impose further restrictions on the Licensee's use of such Other Software. For more information on Other Software contained within the Licensed Software, please contact [email protected] and include with your request the name and version of the applicable Licensed Software.
5.0 Usage Data; Improvements
6.0 Disclaimer of Warranty and Limitation of Liability
6.1 No Standalone Warranty for Licensed Software. 10x makes no standalone warranty with regard to Licensed Software. THE LICENSED SOFTWARE (AND ANY OTHER SOFTWARE) IS PROVIDED BY 10x "AS-IS" WITHOUT (AND 10x HEREBY DISCLAIMS) ANY WARRANTY, STATUTORY, EXPRESS OR IMPLIED. 10x's product warranty for each 10x Instrument (including its use in connection with the most current version of Licensed Software, or, with 10x approval, a previous version of the Licensed Software) is included with shipment of such 10x Instrument, or can be obtained directly by contacting 10x. 10x may, at Licensee's request, furnish technical assistance, advice and information with respect to the Licensed Software (beyond the scope of 10x's applicable product warranty or service contract for the 10x Instrument(s) used by Licensee in connection with the Licensed Software). It is expressly agreed that there is no obligation to provide such assistance, advice or information, which are provided "AS IS," without additional charge, and at Licensee's sole risk.
6.2 Disclaimer; No Other Warranties. ANY WARRANTY PROVIDED IN CONNECTION WITH THE 10x INSTRUMENT(S) USED BY LICENSEE IN CONNECTION WITH THE LICENSED SOFTWARE AND/OR OTHER SOFTWARE (AND ANY REMEDY THEREIN PROVIDED) ARE IN LIEU OF, AND 10x HEREBY DISCLAIMS, ALL REMEDIES AND WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF THE LICENSED SOFTWARE AND/OR OTHER SOFTWARE (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), IN EACH CASE HOWEVER ARISING, INCLUDING WITHOUT LIMITATION FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE, OR OTHERWISE. IN NO EVENT SHALL 10x BE LIABLE FOR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES FOR BREACH OF WARRANTY.
6.3 Limitation of Liability. EXCEPT AS OTHERWISE EXPRESSLY AGREED BY 10x IN WRITING, 10x'S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE LICENSED SOFTWARE AND/OR OTHER SOFTWARE SHALL BE LIMITED TO THE AMOUNT PAID (IF ANY) BY THE LICENSEE FOR THE LICENSED SOFTWARE AND/OR OTHER SOFTWARE GIVING RISE TO THE LIABILITY, OR ONE HUNDRED UNITED STATES DOLLARS (US$100.00), WHICHEVER IS GREATER, AND IN NO EVENT SHALL 10x'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE LICENSED SOFTWARE AND/OR OTHER SOFTWARE EXCEED THE TOTAL AMOUNTS RECEIVED BY 10x UNDER THE APPLICABLE AGREEMENT(S) WITH 10x GOVERNING LICENSEE'S PURCHASE OF THE 10x INSTRUMENT(S) WITH WHICH THE LICENSED SOFTWARE IS USED BY LICENSEE. In no event will 10x or its suppliers be liable to you or to any third party UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, WARRANTY, PURSUANT TO ANY STATUTE, OR ON ANY OTHER BASIS, for costs of substitute goods or services, any lost profits, lost data, interruption of business, or other special, indirect, incidental or consequential damages of any kind arising out of the use or inability to use the Licensed Software or any components or other Products supplied therewith, even if 10x has been advised of the possibility of such loss or damages and whether or not such loss or damages are foreseeable, including, WITHOUT LIMITATION, DAMAGES ARISING FROM OR RELATED TO LOSS OF USE, LOSS OF DATA, OR DOWNTIME, OR FOR LOSS OF REVENUE OR PROFITS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6.4 Third Party Disclaimers. Unless otherwise expressly indicated in the Quotation, Documentation or any Other License Terms, none of 10x's suppliers or licensors of any Product or other item provided by 10x, or portion thereof (under this Agreement or otherwise) (each, a "Supplier") provides ANY WARRANTY WHATSOEVER, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, TO LICENSEE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE DISCLAIMED. IN NO EVENT SHALL ANY SUPPLIER BE LIABLE TO LICENSEE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, DIRECT, INDIRECT OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS.
6.5 Indemnification of 10x. Licensee agrees to defend 10x against any third party claim, proceeding or action ("Claim") that arises in connection with Licensee's use of the Licensed Software and/or Other Software (a) for any clinical purpose or application, (b) in violation of any applicable law or regulation, or (c) in the provision of services under any 'fee for service' agreement or other arrangement. Licensee will pay all damages awarded, and settlements approved by Licensee, in connection therewith, provided that (i) 10x provides to Licensee written notice of the Claim within thirty (30) days of receipt by 10x of such Claim, (ii) 10x allows Licensee to control the defense and settlement of the Claim, and (iii) 10x provides to Licensee reasonable assistance in connection therewith, at no charge to Licensee. 10x may employ counsel at its own expense to assist it with respect to any such Claim, provided that this shall not obligate Licensee or its counsel to consult with or advise such 10x counsel, nor affect Licensee's control of the defense and settlement of the Claim.
7.1 Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by first class mail (registered or certified if available; air mail if overseas), postage prepaid, or otherwise delivered by hand, commercial courier service, messenger or telecopy, addressed to 10x at the address set forth in the Documentation or at such other address furnished with a notice in the manner set forth herein. Such notices shall be deemed to have been effective when delivered or, if delivery is not accomplished by reason of some fault or refusal of the addressee, when tendered (which tender, in the case of mail, shall be deemed to have occurred upon posting, and in the case of telecopy (fax), shall be deemed to have occurred upon transmission). All notices shall be in English.
7.2 Governing Law and Venue. This Agreement and any disputes arising out of or relating do this Agreement (including its formation or termination) or 10x's goods, software or related services ("Disputes") shall be governed by and interpreted in accordance with the laws of the State of California, U.S.A., excluding its choice of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. If Licensee is located within the U.S., any Disputes may be brought in the state courts located in Alameda County, California or the U.S. District Court for the Northern District of California, and each party consents to the personal and non-exclusive jurisdiction and venue of these courts. If Licensee is located outside the U.S., any Disputes shall be resolved by final and binding arbitration under the rules and auspices of the International Centre for Dispute Resolution in Alameda County, California, in English language proceedings whereby either party can request a written opinion from the arbitrator(s) appointed in accordance with the rules, which shall award legal fees (including reasonable attorneys' fees) to the party winning the proceedings, provided however, that either party may seek injunctive relief (including preliminary and permanent injunctive relief) before any court of competent jurisdiction. This section shall not apply if Licensee is an agency of the U.S. Government.
7.3 Export Controls. Licensee agrees that it will not export or transfer the Licensed Software, Other Software, or Documentation for re-export in violation of any United States laws or the laws of any other jurisdiction, or to any denied or prohibited person, entity, or embargoed country in violation of such laws.
7.4 Severability. If any section, paragraph, provision or clause or any portion thereof in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, the remainder of this Agreement shall be valid and enforceable and the parties shall negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties' intent in entering into this Agreement.
7.5 Force Majeure. Neither party shall be liable to the other party for any failure or delay in the performance of any of its obligations under this Agreement for the period and to the extent such failure or delay is caused by civil unrest, threat of or actual acts of terrorism or war, embargoes, governmental actions, acts of God, earthquakes, floods, storms, fires, supplier delay , accidents, explosions, epidemics, quarantine restrictions, or other such contingencies beyond the reasonable control of the applicable party ("Force Majeure"). The party affected shall notify the other party as soon as practicable of any anticipated delay due to Force Majeure.
7.6 No Third Party Beneficiaries. This Agreement has been made and is made solely for the benefit of 10x and Licensee and their respective permitted subsidiaries, successors and assigns. Except as set forth in Section 6.4 (with respect to Suppliers), nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any persons or entity other than the parties to this Agreement and their respective permitted successors and assigns, or relieve or discharge the obligation or liability of any third persons or entities to any party to this Agreement.
7.7 General. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The English language shall govern the meaning and interpretation of this Agreement. This Agreement (including without limitation all exhibits hereto and all attachments thereto, which are incorporated herein by this reference as though fully set forth in the body of this Agreement) embodies the final and complete understanding of the parties with respect to the subject matter hereof, superseding all prior oral or written communications between them, and neither of the parties shall be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided herein. Each party acknowledges that it has not entered into this Agreement in reliance on any statement or representation not expressly set out herein. No oral explanation or oral information by either party hereto shall alter the meaning or interpretation of this Agreement.