Non-commercial license agreement

CryoSPARC Non-Commercial Software License Agreement
Last Updated May 27, 2020
This Non-Commercial Software License Agreement (the "Agreement") is made between you (the "Licensee") and Structura Biotechnology Inc. (the "Licensor"). By installing or otherwise using cryoSPARC (the "Software"), you agree to be bound by the terms and conditions of this Agreement as may be revised from time to time at Licensor's sole discretion. If you do not agree to the terms and conditions of this Agreement, do not install or use the Software.
1.
NON-COMMERCIAL USE. Licensor hereby grants to Licensee one (1) non-exclusive, non-transferable license (the "License") to install and use the Software for Non-Profit Academic Research and processing of cryo-electron microscopy ("cryo-EM") data (the "Intended Purpose").
"Software" includes the executable computer programs, code and any related printed, electronic and online documentation, manuals, training aids, user guides, system administration documentation and any other files that may accompany the code.
"Non-Profit Academic Research" means practicing, making, using, improving upon, importing and exporting (but not selling, leasing or otherwise monetizing) academic or scholarly research, for individual (personal) or academic institutional research purposes, in good faith, and expressly excludes, without limitation, purposes that are intended to (or result in, whether by intent or otherwise): (i) create a commercial advantage for any Person; (ii) generate monetary compensation for products or services; (iii) generate commercialization rights for any Person; (iv) be used in an ongoing business concern; or (v) result in an ongoing business concern obtaining any intellectual property rights in any research or results linked to the Non-profit Academic Research.

2.
RESTRICTIONS. Licensee may not: (i) modify, enhance, reverse-engineer, decompile, disassemble or create derived forms of the Software; (ii) copy the Software; (iii) sell, sub-license, lease, assign, transmit, distribute or otherwise transfer rights in/to the Software; (iv) allow third-party use of Licensee's installation of the Software; or (v) pledge, hypothecate, alienate or otherwise encumber the Software to any third party. Use of the Software is restricted to the Intended Purpose only.

3.
NO WARRANTY. The Software is provided "as is" without warranty of any kind. Licensor makes no representations, warranties or covenants to Licensee, either express or implied, with respect to the Software or with respect to any Confidential Information (as defined herein) disclosed to Licensee. Licensor specifically disclaims any implied warranty or condition of non-infringement, merchantable quality or fitness for a particular purpose. Licensee acknowledges that the Software is of an experimental nature, that no particular results can be guaranteed, and that it has been advised by Licensor to undertake its own due diligence with respect to all matters arising from the Agreement.

4.
LIMITATION OF LIABILITY. In no event is Licensor liable for any damages on any basis, in contract, tort or otherwise, of any kind and nature whatsoever, arising in respect of this Agreement, howsoever caused, including damages of any kind and nature caused by Licensor’s negligence or by a fundamental breach of contract or any other breach of duty whatsoever. Licensee is advised to safeguard important data, use caution and not rely in any way on the correct functioning or performance of the Software and/or accompanying materials.

5.
NO IMPROVEMENTS. Licensor is under no obligation to provide Improvements to the Software. "Improvements" means any improvements, updates, variations, modifications, alterations, additions, error corrections, enhancements, functional changes or other changes to the Software, including, without limitation: (i) improvements or upgrades to improve software efficiency and maintainability; (ii) improvements or upgrades to improve operational integrity and efficiency; (iii) changes or modifications to correct errors; and (iv) additional licensed computer programs to otherwise update the Software.

6.
NO FUTURE ENTITLEMENT. Nothing in this Agreement shall be construed as creating any obligation on Licensor to continue to develop, commercialize, offer, make available or support (i) the Software; or (ii) any feature, functionality or Improvement as may be encompassed in the Software from time to time.

7.
SUSPENSION. Licensor reserves the right to modify, suspend or discontinue, temporarily or permanently, the Software, with or without notice and without liability to Licensee.

8.
OWNERSHIP. Licensor retains title to and ownership of the Software and any Improvements. Nothing in this Agreement shall be construed as granting any express or implied ownership rights to Licensee in respect of the Software, associated documentation or Confidential Information, including but not limited to any patent, copyright, trademark or other intellectual property right.

9.
INTELLECTUAL PROPERTY. All Intellectual Property, Intellectual Property Rights and distribution rights associated with or arising from the Software or Licensor’s Confidential Information remain exclusively with Licensor. “Intellectual Property” includes, without limitation, all technical data, designs, specifications, software, data, drawings, plans, reports, patterns, models, prototypes, demonstration units, practices, inventions, methods and related technology, processes or other information, and all rights therein, including, without limitation, patents, copyrights, industrial designs, trade-marks and any registrations or applications for the same and all other rights of intellectual property therein, including any rights for which arise from the above items being treated by the Parties as trade secrets or confidential information (the rights being “Intellectual Property Rights”).

10.
CONFIDENTIAL INFORMATION. “Confidential Information” means any and all confidential or proprietary information of Licensor or Licensee which may be exchanged between the Parties at any time prior to and during the term of this Agreement, including, without limitation, business and marketing information, technology, know-how, ideas, reports, techniques, methods, processes, uses, composites, skills, and configurations of any kind. Without limiting the generality of the foregoing, Licensor’s Confidential Information includes: (i) the Software, including its features, functionality, performance, application and use; (ii) the computer code underlying the Software, including source and compiled code and all associated documentation and files; (iii) information relating to the performance or quality of the Software; (iv) the details of any technical assistance provided to Licensee during the term of this Agreement; (v) any other products or service made available to Licensee by Licensor during the term of this Agreement; and (vi) information regarding Licensor’s business operations or research and development activities. 
Neither party shall: (i) disclose, either directly or indirectly, any Confidential Information or any part thereof belonging to the other party, to any person except as is specifically contemplated in this Agreement; or (ii) use any Confidential Information or any part thereof belonging to the other party, for any purpose except as is specifically contemplated in this Agreement. The obligations of confidentiality set forth herein shall not apply to the extent that the information: (i) was already known to the relevant party without restriction at the time the information was disclosed to such party; (ii) was generally available to the public or otherwise was part of the public domain at the time of its disclosure to the relevant party; (iii) became generally available to the public or otherwise part of the public domain after its disclosure to the relevant party through no act or omission of such party; or (iv) was disclosed to the relevant party without restriction by a third party who, to the best of such party's knowledge and belief, had no obligation not to disclose such information.

11.
FEEDBACK. Licensee may communicate to Licensor, whether or not at Licensor’s request, suggestions and comments regarding the Software, including without limitation, performance, user interface, experiment results, and errors (collectively, “Feedback”). Licensor shall have worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid up rights to use such Feedback. Without limiting the generality of the foregoing, Licensor shall have the unencumbered right to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of/incorporating the Feedback as part of any product, technology, service, specification or other documentation and to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend anonymized copies of the Feedback (and derivative works thereof) as part of any product.

12.
PERFORMANCE DATA AND ANALYTICS. Licensor may collect usage and performance data relating to Licensee’s installation of the Software. including, without limitation, data relating to: (i) software use, including the number of users, projects and experiments associated with an installation; (ii) error information, including error messages and user-submitted feedback; (iii) performance data, including experiment run times and failed experiments; (iv) hardware utilization, including the number of active nodes and memory usage; and (v) license status information, including confirmation of valid license status.

13.
TERMINATION. Licensor reserves the right to terminate this Agreement immediately and without notice in the event Licensee fails to comply with any provision of this Agreement. On termination of this Agreement, whether by reason of expiry or otherwise, Licensee shall promptly discontinue use of the Software, destroy its installation of the Software and, at Licensor's request, return the Software to Licensor at no cost to Licensor. Licensor may exercise any or or more of the remedies available to it under the terms of this Agreement, in addition to any remedy available at law. Failure of Licensor to enforce a right under this Agreement shall not act as a waiver of that right.

14.
GOVERNING LAW. This Agreement is made in Ontario and governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. The Parties attorn to the exclusive jurisdiction of the Courts of the Province of Ontario.

15.
SURVIVAL. The provisions of subsections 2-12 shall survive termination of this Agreement.

16.
SEVERABILITY. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the Parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.

17.
NO AGENCY. No provision of this Agreement or action by the Parties will establish or be deemed to establish any partnership, joint venture, principal-agent or employer-employee relationship in any way, or for any purpose, between Licensor and Licensee.

18.
ENTIRE AGREEMENT. This Agreement including all schedules hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior or collateral agreements, communications, representations, understandings, negotiations and discussions, oral or written.
© 2020 Structura Biotechnology Inc.
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