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The provided contact information will be used for the sole purpose to inform potential users of new releases and modifications of this software (ESME). The provided information will not be shared with third parties or will be used for other purposes. END USER LICENSE AGREEMENT This Software License Agreement ("Agreement") is made and entered into by and between Epigenomics AG, a company organized and existing under the laws of the Federal Republic of Germany ("EPIGENOMICS"), and each end-user ("YOU"). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING EPIGENOMICS' PROPRIETARY SOFTWARE ESME OR OBTAINING A LICENSE KEY TO THE SOFTWARE OR USING THE SOFTWARE. THE SOFTWARE IS COPYRIGHTED AND IS LICENSED TO YOU UNDER THIS AGREEMENT, NOT SOLD TO YOU. BY SELECTING THE CHECK BOX, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU ARE WILLING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD THEN CLICK THE "SUBMIT" BUTTON BELOW, STARTING THE DOWNLOAD PROCESS. THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN EPIGENOMICS AND YOU CONCERNING THE SOFTWARE, AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH EPIGENOMICS RELATING TO THE SOFTWARE. ------------------------- Section 1. Definitions ------------------------- "Agreement" means this Software License Agreement and its Annexes. "Software" means the current version and formats of the ESME software (epigenetic sequencing methylation) and tools provided with the ESME software ("esmetest.pl" and "esmeTK") available on the date of its downloading and as specified in Exhibit A, which is a program and tools that perform trace file analysis and a quantitative methylation analysis of the underlying trace file information of bisulfite converted DNA sequencing. Epigenomics shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software. "Modifications" mean any changes or extensions introduced into the Software or otherwise on or derived from the Software. Modifications may include, but are not limited to, corrections or deletions of functions or enhancement of existing functions of the Software, changes, or additions required to integrate the Software into other applications or to allow the Software to run under alternate operating systems or computer hardware configurations, and other adaptations of the Software and any improvement of any invention described in the Patent Rights conceived or reduced to practice by You during the Term, whether or not patentable. "Field" means Research Use only. "License" means the license granted under Section 2.1. "Patent Rights" means the patents and patent applications listed in Exhibit A. "Research Use" means internal, non-clinical, scientific research and discovery for the purpose of advancing scientific knowledge, including, without limitation, the testing of human specimens where the results of the test are not used for diagnostic or prognostic purposes, but expressly excluding any commercial use. "Term" has the meaning set forth in Section 4.1. ------------------------- Section 2. The License ------------------------- 2.1 Grant. Subject to the terms and conditions of this Agreement, Epigenomics hereby grants to You, and You accept, a non-exclusive, non-transferable license to use the Software in the Field and the ESME Manual accompanying the Software ("Documentation"), and to perform Modifications of the Software for use in the Field, and to make copies of the Software in original or modified as far as necessarily required for said use. This License permits you to install and use the Software on more than one computer systems. For purposes of this Agreement, "use" of the Software means installing the Software into the temporary or permanent memory of a computer. THE LICENSE GRANTED HEREUNDER IS EXPRESSLY LIMITED TO THE FIELD AS DEFINED ABOVE. ANY COMMERCIAL USE IS EXPRESSLY EXCLUDED. As far as Patent Rights are pending in the respective territory, the License also includes a non-exclusive, non-transferable license to use said Patent Rights in the Field (Licensed Patents Rights). The License does not include any right to sublicense, and You will not sublicense, any of the rights granted under this Agreement. You shall obtain no ownership in the Software. You acknowledge the right of Epigenomics to modify the Software that may be similar or functionally equivalent to Your Modifications and if You obtain patent protection for any Modification or improvement to the Software You agree not to allege or enjoin infringement or misappropriation by Epigenomics in it's patents by Epigenomics or Epigenomics' licensees obtaining Software Modifications or other improvements under license from Epigenomics. You shall retain in the Software and in any Modifications the proprietary notices and legends as provided by Epigenomics, including without restriction any and all copyright, trademark, patent notices and legends pertaining to attribution, source of developments, funding source, and disclaimer of risk, and, at the request of Epigenomics, shall promptly modify such proprietary notice and legends to conform with Epigenomics' reasonable requirements. You shall treat the Software as confidential information, and shall not distribute, publish, or otherwise transfer or allow to be transferred the Software or any modified or unmodified copies thereof, in whole or in part, without prior written permission of Epigenomics. 2.2 Instruction. The Software has been developed as part of research and development conducted at Epigenomics and is provided as a research courtesy. Therefore, the Software is experimental in nature and is available "as is", without obligation by Epigenomics to provide You services or support. However, without any legal obligation, Epigenomics will endeavor to correct program bugs relating to the Software's operation, and to provide to You reasonable advice and answer to inquiries. However, You acknowledge that the Software operates in an environment of emerging scientific information and program limitations directed at emerging scientific information are not program bugs for the purpose of this Agreement. Any inquiries are to be made in form of electronic mail to Epigenomics as the following address. Primary contact: firstname.lastname@example.org Any such efforts by Epigenomics, however, shall be on an "as available" base. 2.3 Compliance With Laws. In exercising the License, You will comply with all applicable laws, rules, regulations, orders and other requirements of any governmental authority having jurisdiction. ---------------------------------------------- Section 3. Protection of Proprietary Rights ---------------------------------------------- 3.1 Reservation of Rights. Epigenomics reserves ownership of the Software and Licensed Patent Rights. Except for the License, no right, title or interest in or to the Software and Licensed Patent Rights, any inventions, methods, processes, designs or other matters subject to the Software and Licensed Patent Rights is granted, assigned or otherwise transferred to You pursuant to or by virtue of this Agreement or by implication, estoppel or otherwise. 3.2 Third Party Infringement. Without limiting the generality of Section 3.1, Epigenomics reserves any and all rights to commence, prosecute, compromise and settle (by way of license or otherwise) any claim, action or proceeding for infringement, misappropriation or violation regarding the Software or any of the Licensed Patent Rights by any third party. 3.3 No Epigenomics Obligation. Epigenomics will not have any obligation to register, make any filing with respect to, make any payment with respect to, enforce or take any other action for the perfection, maintenance, preservation or protection of the Software or any Licensed Patent Rights. 3.4 No Contest of the Software and Licensed Patent Rights. To the fullest extent permitted by applicable law, neither You nor any of Your affiliates will contest or otherwise challenge (e.g., in any legal action or otherwise), or assist or encourage any other person or entity to contest or challenge, the validity of the Software or any of the Licensed Patent Rights. 3.5 Modifications. You will promptly disclose to Epigenomics any Modifications. You hereby grant to Epigenomics and its affiliates a worldwide, non-exclusive, non-transferable, royalty-free, perpetual and irrevocable license to use any such Modifications and any patents or other intellectual property rights of You covering any such Modifications for any purpose. ---------------------------------- Section 4. Term and Termination ---------------------------------- 4.1 Term. This Agreement is effective upon your acceptance of this Agreement, or upon your downloading, accessing, and using the Software, even if You have not expressly accepted this Agreement. This Agreement shall continue in effect until terminated as provided in Section 4.2 below (the "Term"). 4.2 Termination by Epigenomics. Epigenomics may terminate the Agreement by giving You written notice of such termination if You commit any material breach under this Agreement and fails to cure such breach within thirty (30) days after Epigenomics gives You written notice of its intent to terminate the Agreement. If the breach is not cured within such thirty (30) days period, this Agreement shall be considered to be terminated effective as of the expiration of said thirty (30) days period. 4.3 Effect of Termination. Upon termination of the Agreement the License is terminated, and You will not have any License or other right under the Licensed Patent Rights and the Software. You shall make sure that within ten (10) days after termination the Software and all Modifications thereof have been destroyed. The termination shall not affect any provision, which is by its nature intended to survive termination. -------------------------------------- Section 5. Disclaimer of Warranties -------------------------------------- THE SOFTWARE HAS BEEN DEVELOPED AS PART OF RESEARCH AND DEVELOPMENT CONDUCTED AT EPIGENOMICS AND IS PROVIDED AS A RESEARCH COURTESY. THE SOFTWARE IS EXPERIMENTAL IN NATURE AND IS AVAILABLE "AS IS", WITHOUT OBLIGATION BY EPIGENOMICS TO PROVIDE YOU SERVICES OR SUPPORT EXCEPT AS SPECIFIED IN THIS AGREEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. TO THE EXTENT LEGALLY PERMISSIBLE EPIGENOMICS DISCLAIMS AND YOU HEREBY WAIVES, ANY AND ALL REPRESENTATIONS AND WARRANTIES OF EPIGENOMICS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH REGARD TO THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EPIGENOMICS DISCLAIMS (A) ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SCOPE, COVERAGE, VALIDITY OR ENFORCEABILITY OF ANY OF THE LICENSED PATENT RIGHTS; AND (B) ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE (INCLUDING, BUT NOT LIMITED TO, ANY INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY AND ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE). FURTHER, EPIGENOMICS MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE OR THE LICENSED PATENT RIGHTS CAN BE USED FOR ANY PARTICULAR PURPOSE, THAT THE EXERCISE OF THE LICENSE WILL NOT INFRINGE ANY INTELLECTUAL PROPERTY RIGHTS RIGHT OF ANY THIRD PARTY, OR THAT YOU CAN SUCCESSFULLY USE THE SOFTWARE. -------------------------------------- Section 6. Limitations of Liability -------------------------------------- TO THE EXTEND LEGALLY PERMISSABLE, IN NO EVENT WILL EPIGENOMICS BE LIABLE TO YOU UPON ANY CLAIM, WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS OR LOST BUSINESS. --------------------------- Section 7. Miscellaneous --------------------------- 7.1 Relationship of the parties. This Agreement will not be interpreted or construed to create any partnership, agency, franchise or similar relationship between the parties or to impose any partnership, agency, franchise or similar obligation or liability upon a party. 7.2 Use of Names. You shall not use the name "Epigenomics AG" or "Epigenomics Inc", or the name of any Epigenomics personnel or identifiers of the Software without prior written approval from Epigenomics except as expressly authorized in this Agreement. 7.3 Attribution. You shall cite the publication listed on Exhibit A when You publish research utilizing or based on the Software and cites Epigenomics as source for the Software. 7.4 Nonwaiver. The failure of a party to insist upon or enforce strict performance by the other party of any of the provisions of this Agreement, or to exercise any right or remedy under this Agreement, will not be interpreted or construed as a waiver or relinquishment to any extent of that party's right to assert or rely upon any such provisions, rights or remedies in that or any other instance; rather, the same will be and remain in full force and effect. 7.5 Successors and Assigns. You shall not assign (whether voluntarily, involuntarily, by operation of law or otherwise, including, without limitation, any assignment in connection with any merger, consolidation or other corporate reorganization or any sale, assignment or other transfer of assets) the License, this Agreement or any of its right, title or interest under this Agreement or the License, without the prior written consent of Epigenomics, which consent will be in the sole discretion of Epigenomics. No assignment by You, with or without Epigenomics' consent, will relieve or release You from any of its obligations under this Agreement. Subject to the foregoing restrictions on assignment by You, this Agreement will be binding upon, inure to the benefit of, and be enforceable by each of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be void. 7.6 Jurisdiction. The parties hereby irrevocably submit to the jurisdiction of the Landgericht Berlin, Berlin, Germany for all actions, suits or proceedings arising in connection with this Agreement. You will not commence or prosecute any suit, proceeding or claim arising in connection with this Agreement, other than in the above courts. 7.7 Governing Law. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the Federal Republic of Germany, without reference to its rules relating to choice of law to the contrary. 7.8 Entire Agreement. This Agreement (including the attached or referenced Exhibits) constitutes the entire agreement, and supersedes any and all prior agreements, between the parties with regard to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement will be valid unless set forth in a written instrument signed by the party to be bound thereby. 7.9 Severability. Should a provision of this Agreement be invalid or become invalid or should this Agreement contain an omission, then the legal effect of the other provisions shall not thereby be affected. Instead of the invalid provision a valid provision is deemed to have been agreed upon which comes closest to what the parties intended commercially; the same applies in the case of an omission. --------- Exhibit A --------- Software and Licensed Patents Description: ESME is a program that performs trace file analysis and a quantitative methylation analysis of the underlying trace file information of bisulfite converted DNA sequencing. The Software is written in C++. The current version and format available is a precompiled version for Debian GNU/Linux 6.0 (Squeeze), 32 bit. Performance and functionality of ESME has not been tested on other systems. esmeTK is a GUI for ESME. esmetest.pl is a PERL script assessing ESME functionality. Publications: Lewin J, et al. Quantitative DNA methylation analysis based on four-dye trace data from direct sequencing of PCR amplificates. Bioinformatics (2004) 20 (17): 3005-3012. Eckhardt F, et al. DNA methylation profiling of human chromosomes 6, 20 and 22. Nat Genet. 2006 Dec;38(12):1359-60 Patents: Title: Method for the quantitative determination of the degree of methylation of cytosines at CpG position(s) Registration Publication No., Filing Date: EP 1369493, 05/06/02 Patent Applications: Title: Method for the quantitative determination of the degree of methylation of cytosines at CpG position(s) Serial Publication No., Filing Date: US 2004-0023279, 05/06/03
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