AFFYMETRIX, INC. LIMITED RESEARCH AND DEVELOPMENT LICENSE AGREEMENT
Tiling Analysis Software Developers Kit (SDK) - Early Access
IMPORTANT - PLEASE READ CAREFULLY: By clicking "I Accept" below you are indicating that you agree to be bound by the following terms.
AFFYMETRIX, INC. SOFTWARE DEVELOPMENT KIT (SDK) AND DATA NON-COMMERCIAL USE LICENSE AGREEMENT
IMPORTANT - PLEASE READ CAREFULLY: This SDK and Data Non-Commercial Use License Agreement (the "Agreement") is a legally binding agreement between you (either an individual or an entity) and Affymetrix, Inc. for the software product(s) listed on the Affymetrix Developer Network home page currently located at http://www.affymetrix.com/partners_programs/programs/developer/index.affx (the "ADN Homepage"), which includes computer software in object code (or machine readable) and/or source code (human readable) form, and may also include related media, printed materials and/or electronic documentation (collectively, the "Software"). This Agreement contains terms and conditions which are applicable to your use of the Software. This Agreement also contains a license to download and use certain Data (as defined below) from the Affymetrix.com web site (the "Site") for your non-commercial purposes in connection with your use of the Software, and contains terms and conditions which are applicable to your use of such Data.
By clicking "Yes" or "I accept" during download or installation of the Software, or by downloading, accessing, viewing or otherwise using the Software, you are indicating that you agree to be bound by the following terms and conditions. If you do not agree to the terms and conditions of this Agreement, you are not licensed by Affymetrix by virtue of this Agreement to use or distribute the Software or Data.
1. OPEN SOURCE LICENSES. The Software may include or require use of one or more software programs or components (e.g., software code, algorithms, documentation) listed on the ADN Homepage that are made available by Affymetrix under an open source license (e.g., the Common Public License (CPL), the General Public License (GPL) or the Lesser General Public License (LGPL)). Notwithstanding any provision to the contrary in this Agreement, and except as otherwise provided in a separate written agreement between you and Affymetrix signed by an authorized corporate officer of Affymetrix, your license to use such open source program or component (including your right, if any, to reproduce, modify, create derivative works and/or distribute such program or component), when obtained by you as part of the Software, shall be governed exclusively by the terms of such open source license, which shall supercede this Agreement solely with respect to such open source program or component.
2. LICENSE GRANT - SOFTWARE. Subject to the terms and conditions of this Agreement and your payment to Affymetrix of the applicable then-current annual subscription fee (the "Subscription Fee"), Affymetrix grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download from the ADN Homepage, reproduce, install and internally use the Software to develop your own non-commercial software application(s) ("Your Software") capable of interfacing with Affymetrix(R) GeneChip(R) data file formats, Affymetrix Laboratory Information Management System (LIMS) software and data structures, and/or an Affymetrix GeneChip Operating Software (GCOS) database, provided that Your Software contains significant and primary functionality independent of the Software, Data and any know-how embodied therein, and further provided that you distribute Your Software at no charge. To the extent Your Software incorporates or practices any Affymetrix patent or other intellectual property right, this license does not include the right for Your Software, or any Distributable Component (as defined below) or other portions of the Software, to interface with, process or otherwise act upon data generated by any products other than Affymetrix GeneChip probe arrays or related Affymetrix products or services.
3. DERIVATIVE WORKS. If the Software includes a source code component (e.g., the PLIER algorithm SDK), then you are permitted to modify and make derivative works of such source code component for your internal use consistent with the terms and conditions of this Agreement, and you are permitted to distribute derivative works, or portions thereof, of such Software components to end users at no charge solely as Distributable Components in accordance with Section 5 below. However, you are not licensed to, and agree not to, identify or refer to such component by the name or other identifier given to it by Affymetrix (e.g., "PLIER") unless, when used under normal conditions as recommended by you for Your Software and permitted by this license, the derivative work processes or otherwise acts upon the validation data set(s), if any, provided or recommended by Affymetrix for testing such component, within the parameters of acceptable performance established by Affymetrix for such component. Furthermore, you agree that the name or other identifier that you use for such derivative work shall be unique, identify the original Software program or component from which it was derived, and indicate to the user that it is a derivative work of that program or component. However, except for the name or identifier given to the Software program or component by Affymetrix (e.g., "PLIER"), you are not licensed to and agree not to use any Affymetrix trademark, trade name or service mark, or other designation in connection with any such activities unless you are licensed to do so under a separate written agreement with Affymetrix signed by an authorized corporate officer of Affymetrix. You agree not to infringe upon the intellectual property or other rights of any other party, and to indemnify, defend and hold harmless Affymetrix and its licensors from and against any claim, lawsuit or related action for infringement, in accordance with Section 19 below.
4. LICENSE GRANT - DATA. Subject to all terms and conditions of this Agreement, the Site's terms and conditions of use (currently located at http://www.affymetrix.com/site/terms.affx), which are incorporated herein by reference, and any Third Party Terms, and your payment to Affymetrix of the Subscription Fee, Affymetrix grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download Data from the Analysis Center, internally use such Data to develop Your Software as permitted by this license, and non-commercially redistribute such Data with Your Software pursuant to Section 6 below. For purposes of this Agreement, the following terms have the following meaning:
"Affymetrix Data" means data, library files and other information that (a) are made available by Affymetrix for download through the Center, (b) are/were created, developed, generated, derived, selected, annotated or arranged by or specifically for Affymetrix, and (c) are specific to Affymetrix' GeneChip probe arrays or related Affymetrix products or services, including, without limitation: the selection, arrangement, identity, and nucleic acid sequence to the extent not already contained in Third Party Data, of consensus, exemplar, probe and target sequences represented on GeneChip probe arrays; probe IDs and definitions; protein annotation and alignments; and the identity of GENBANK accession numbers and/or identity of other Third Party Data specifically associated with any of the foregoing.
"Data" means collectively the Affymetrix Data and Third Party Data.
"Analysis Center" means the NetAffx Analysis Center currently accessible to registered users of the Site and currently located at http://www.affymetrix.com/analysis/index.affx.
"Third Party Data" means data and other information, if any, that (i) are made available by Affymetrix for download through the Analysis Center, (ii) are/were obtained from third party Web sites or otherwise made available publicly by third parties, or licensed to Affymetrix for use on the Site, and (iii) are not Affymetrix Data.
"Third Party Terms" means any third party copyright notice, license agreement, or other terms applicable to Third Party Data.
5. DISTRIBUTION OF CERTAIN SOFTWARE COMPONENTS. You are authorized to non-commercially redistribute, in object code form only, those components (the "Distributable Components") of the Software that you embed into Your Software's executable or library file, and only to the extent required for the proper functioning of Your Software when interfacing with Affymetrix(R) GeneChip(R) data file formats, Affymetrix Laboratory Information Management System (LIMS) software and data structures, and/or an Affymetrix GeneChip Operating Software (GCOS) database, as permitted by this license. Your distribution of Distributable Components shall occur solely in connection with your distribution of Your Software to your end user customers and pursuant to an end user license agreement with terms no less protective of the Distributable Components than those contained herein. For purposes of the preceding sentence, "distribution" includes your distribution of Your Software via a hosted web server operated by you or by another party. If Affymetrix makes available to you an installation program for a Distributable Component then you agree to use such installation program for such Distributable Component. You shall not permit further distribution of the Distributable Components except by your distributor(s) solely in connection with their distribution of Your Software at no charge to end users in accordance with the terms and conditions of this Agreement. Except for the name or identifier given to a Software component by Affymetrix (e.g., "PLIER"), you are not licensed to, and agree not to, use any Affymetrix trademark, trade name or service mark, or other designation in connection with any such activities unless you are licensed to do so under a separate written agreement with Affymetrix signed by an authorized corporate officer of Affymetrix.
6. REDISTRIBUTION OF DATA. You are authorized to redistribute the Data, in unmodified form (except for reformatting that does not alter the content or remove any identification, trademark, copyright or other notices), solely in connection with your distribution of Your Software to end users, provided that you redistribute the Data pursuant to an end user license agreement with terms no less protective of the Data than those contained herein (but consistent with Third Party Terms with respect to any Third Party Data to which they apply). You shall not permit further distribution of the Data except by your distributor(s) solely in connection with their distribution of Your Software at no charge to end users in accordance with the terms and conditions of this Agreement.
7. LICENSE TERM. The term of such licenses and this Agreement shall be one (1) year from the date you pay the Subscription Fee to Affymetrix, unless earlier terminated as provided herein. Following the initial term, this Agreement shall and shall renew for one or more subsequent one (1) year periods only upon your payment to Affymetrix of the Subscription Fee for each such renewal term. Affymetrix may terminate the licenses and this Agreement immediately if you are in material breach of any of its provisions, or if you fail to comply with the terms and conditions applicable to the Site or any product(s) to which the Software or Data pertains, or any Third Party Terms. Affymetrix has the right to inspect Your Software in source code/human readable form at any time during normal working hours, and under reasonable obligations of confidentiality, to ensure compliance with this Agreement.
10. USE OF ROBOTS. You are authorized to use automated retrieval mechanisms (i.e., "robots") to download Data as permitted herein at reasonable periodic intervals, provided that such activity does not create or threaten to create any significant or undue burden on, or security risk for, the Analysis Center, the Site or any system resources associated therewith. The Software currently includes the NetAffx SDK, which is a set of application programming interfaces (APIs) used to download Data from the Center. Notwithstanding the foregoing, Affymetrix reserves the right to suspend or revoke such authorization and/or block the use of any such mechanism temporarily or permanently at any time without notice to you; Affymetrix may attempt to provide you with advance notice where practical in its sole discretion, but shall no have liability for any failure to do so.
11. MARKS. You agree to identify "Affymetrix, Inc." as the source of the Software, Distributable Components (except as otherwise provided in Section 3 above) and Data, except as otherwise required by any Third Party Terms, and, for derivative works, to use the names or other identifiers given to Software components by Affymetrix in accordance with Section 3 above. You agree that all such uses shall be in accordance with Affymetrix' guidelines for proper trademark use, currently located at http://www.affymetrix.com/about_affymetrix/legal/trademark-guidelines.affx. No other license, right, or interest in any Affymetrix trademark, trade name, service mark, or other designation is granted hereunder. Without limiting the foregoing, you agree not to use any Affymetrix name, identifier, trademark, trade name, service mark, or other designation (a) to imply sponsorship or endorsement by Affymetrix, (b) to disparage Affymetrix, its products or services, (c) in conjunction with any products or services that in Affymetrix' sole judgment may diminish or damage the goodwill in Affymetrix' marks, (d) in such a way that Affymetrix' marks are displayed more prominently than the name/logo of your company, or (e) to infringe Affymetrix' intellectual property rights or violate any state, federal or international law. You further agree to indemnify, defend and hold harmless Affymetrix and its licensors from and against any claim, lawsuit or related action that arises or results from any such activities, in accordance with Section 19 below.
12. INTELLECTUAL PROPERTY RIGHTS. Except as expressly provided in this Agreement, all rights to Affymetrix' intellectual property are specifically reserved. Subject to your limited license to use the Software and Data as provided above, and except as otherwise provided in any Third Party Terms, you agree that Affymetrix owns all copyright, patent, trademark, trade secret, and all other intellectual property rights in the Software, Data and any modifications or enhancements to the Software or Data. You agree that Affymetrix at its sole discretion may incorporate as its own (including distribution in source code form under a commercial, open source or other license) any and all modifications or enhancements you make to the Software or Data and any feedback or guidance you provide regarding the Software or Data. Except where prohibited by any Third Party Terms with respect to Data, you hereby assign to Affymetrix all rights, title and interest in such modifications, enhancements, feedback and/or guidance and agree to execute all documents necessary to implement such assignment.
13. NO REVERSE ENGINEERING. You acknowledge that the Software and Data may contain or embody valuable trade secrets of Affymetrix and, therefore, except as otherwise permitted by law (but solely for the purposes permitted by such law) or any Third Party Terms (but solely with respect to the Third Party Data to which they apply), you agree not to attempt to analyze or review the Software or Data except as expressly provided herein or reverse engineer, disassemble, decompile or similarly manipulate or attempt to reconstruct or discover any source code or underlying ideas or algorithms for all or any portion of the Software or Data for any purpose except as expressly provided herein.
14. NO IMPLIED LICENSE. You acquire no rights or licenses, implied or otherwise, by virtue of this Agreement except those expressly granted herein. Without restricting the previous sentence, nothing herein shall be construed as a right or license to make, have made, use, sell, offer to sell, import, lease or distribute probe arrays or related products or services. Furthermore, nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any license or right under any patent, whether or not the exercise of any right herein granted necessarily employs an invention claimed by any existing or later issued patent, except as expressly and unambiguously granted by this Agreement.
15. NO WARRANTY. The Software and Data are provided "AS IS" and Affymetrix makes no warranty as to the Software or Data. Affymetrix shall have no obligation under this Agreement to correct any bugs, defects or errors in the Software or Data, or to otherwise support or maintain the Software or Data. No warranty with respect to performance specifications of the Software or Data is made. Support services are currently available from Affymetrix which you may purchase under separate agreement with Affymetrix at its then-current rates, provided however that Affymetrix shall not be obligated hereunder to provide any such services and reserves the right to discontinue offering the services at any time without notice to you. Without limiting the foregoing, you acknowledge that Affymetrix is not responsible for any Third Party Data and that Affymetrix shall have no liability for any damage or loss arising from your access to, use of or reliance on any Third Party Data. You further acknowledge and agree that Affymetrix may modify or cease providing or supporting the Software (including without limitation the Distributable Components) and/or Data at any time with or without notice and the entire risk of using the Software (including without limitation the risk of using the Distributable Components) and/or Data in connection with your software application(s), is borne by you. AFFYMETRIX DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OF INFORMATION, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE AND TITLE/NON-INFRINGEMENT, RELATED TO THE SOFTWARE, DATA, USE OR ANY INABILITY TO USE EITHER, THE RESULTS OF THEIR USE AND THIS AGREEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SOFTWARE, DATA, THE DOWLOAD CENTER AND THE SITE.
16. U.S. GOVERNMENT END USERS. If you are an agency, department, or other entity of the United States government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of this product, or of any related documentation of any kind, including technical data, is restricted in accordance with Federal Acquisition Regulation ("FAR") 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement ("DFARS") 227.7202 for military agencies. The Software is commercial computer software and commercial computer software documentation. The use of the Software by the Government is further restricted in accordance with the terms of this Agreement. The contractor/manufacturer is Affymetrix Inc., 3420 Central Expressway, Santa Clara, CA 95051.
17. LIMITATIONS OF LIABILITY AND DAMAGES. IN NO EVENT SHALL AFFYMETRIX BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUING NEGLIGENCE) OR UNDER ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR THE USE, THE RESULTS OF THE USE, OR THE INABILITY TO USE THE SOFTWARE, DATA, ANALYSIS CENTER OR THE SITE. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM RELATING TO THE FOREGOING IS TO STOP USING THEM. THE LIABILITY OF AFFYMETRIX, FOR ALL CLAIMS AND EVERY FORM OF DAMAGES, SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID BY YOU IN THE PRECEDING TWELVE (12) MONTH PERIOD FOR YOUR USE OF THE SOFTWARE AND DATA, OR FIFTY DOLLARS (U.S. $50.00), WHICHEVER IS GREATER. YOU ACKNOWLEDGE AND AGREE THAT THE RISKS OF LOSS HEREUNDER ARE REFLECTED IN THE PRICE OF THE SOFTWARE LICENSE, AND THAT THESE TERMS WOULD HAVE BEEN DIFFERENT IF THERE HAD BEEN A DIFFERENT ALLOCATION OF RISK.
18. NOT APPROVED FOR DIAGNOSTIC USE. The Software and Data are for research use only and not for use in diagnostic procedures. Neither the Software or Data has the approval of the U.S. Food and Drug Administration ("FDA"), the Japanese Minister of Health, Labor and Welfare ("MHLW") or other regulatory approval. No license is conveyed or implied for you to use, and you agree not to use, the Software, Data or any results generated therefrom in any manner requiring FDA, MHLW or similar regulatory approval FDA.
Should you have any questions concerning this license agreement, or if you desire to contact Affymetrix for any reason please write: Affymetrix, Inc., 3420 Central Expressway, Santa Clara, CA 95051, Attention: Legal Department; or phone 408.731.5000.
AS STATED ABOVE, USE OF THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT.