BIOTURING LICENSE AGREEMENT

THIS LICENSE AGREEMENT (“Agreement”) is entered into by and between You (“CUSTOMER”), and BioTuring, INC., having its registered office at 4445 Eastgate Mall, suite 200, San Diego, California 92121 USA (“BioTuring”) on the Effective Date. CUSTOMER and BioTuring may be hereinafter referred to individually as a “Party” or collectively “Parties” and each of them being a “Party”.

The Software designated herein (“Software License” or “Software”) includes any updates or error corrections by BioTuring, and its online or electronic documentation. As of the Effective Date, CUSTOMER may use the designated portion of the Software for the License Term in exchange for payment of the License Fee. The Parties agree to be bound by all the terms and conditions of this Agreement for the period of the Term.

DEFINITIONS

“Affiliate” means in relation to a Party, an organization that, whether now or in the future, is controlled by or is under common control with that Party. For the purposes of this definition, the terms “controls”, “controlled by”, and “under common control with” as used with respect to an organization, mean the possession (directly or indirectly) of more than fifty (50) percent of the voting stock or other equity interest with the power to vote of such organization, or the power in fact to control the management decisions of such organization through the ownership of securities or by contract or otherwise.

“Analysis Results” means any and all data or results generated using CUSTOMER Data through use of the BioTuring Software during the Term.

“Authorized Users” means all officers, directors, and employees of CUSTOMER authorized to use the Software.

“Computer” means a virtual or physical device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions, including without limitation desktop computers, laptops, tablets, mobile devices, Internet-connected devices, and hardware products capable of operating a wide variety of productivity, entertainment, or other software applications.

“CUSTOMER Data” means all data, materials, or other information in whatever form: uploaded, transferred, or otherwise provided or made available by or on behalf of CUSTOMER for processing through the Software pursuant to this Agreement or at the written request or instruction of CUSTOMER and includes all associated metadata.

“Effective Date” means the date that this Agreement becomes effective. The Agreement becomes effective on the date the CUSTOMER purchases the Software License.

“License Fee” means the fee charged by BioTuring to CUSTOMER for the Software License set forth in the BioTuring Sales Quote and related Invoice.

“Sales Quote” means quote issued by BioTuring to the CUSTOMER at the time of Software License purchase. The quote will contain License Fee, details of the Software purchased and Term of the License.

“Software” means all components of the BioTuring Ecosystem or any combination of individual components, including but not limited to BBrowserX, Talk2Data, BioTuring Lens, BioStudio, BioVinci and BioTuring Enterprise Server Platform plus (BESP+).

“Term” means the term of this Agreement, starting as of the Effective Date and unless terminated earlier pursuant to Sections 2, 10 or 12, shall continue in effect for one (1) year until the expiration of the License.

“Update” means any modification, update, error correction, or revision provided by BioTuring to the Software that may contain new features, functions, or enhancements.

LICENSE FEES, TERMS AND CONDITIONS.

Under the terms and conditions of this Agreement, BioTuring grants to CUSTOMER a non-exclusive, non-assignable, non-transferable, non-sublicensable, limited, and revocable License to use the Software. BioTuring shall maintain the Software and provide CUSTOMER with the necessary service, security and support to enable the use of the Software. CUSTOMER is liable to strictly comply with the terms of the License that CUSTOMER is granted by BioTuring and this Agreement. CUSTOMER shall not access BioTuring’s system in order to extend or modify the permissions granted to CUSTOMER or attempt to modify the software. In the event of a breach of the preceding sentence, BioTuring can terminate CUSTOMER’s License without CUSTOMER’s consent.

Under this Agreement, CUSTOMER shall pay BioTuring the full, stipulated License Fee (“License Fee”) stated in the Sales Quote issued to the CUSTOMER. All sums payable under this Agreement shall be paid in United States dollar (“USD”) via wire transfer direct to the appropriate bank account or electronic payment as designated by BioTuring. All costs of transmission shall be borne by the CUSTOMER.

If CUSTOMER is paying via wire transfer:

BioTuring will provide CUSTOMER a BioTuring Sales Quote with payment instructions.
Customer will generate a Purchase Order (“PO”) and provide BioTuring a copy of the PO with invoice submission instructions, relayed to the following email addresses: accounting@bioturing.com with copy to support@bioturing.com.
BioTuring will then issue an invoice with the CUSTOMER PO number and submit per CUSTOMER instructions.
CUSTOMER shall confirm the receipt of the invoice for payment via email to accounting@bioturing.com, copy to support@bioturing.com upon which BioTuring will activate the License.
Payment shall be made within thirty (30) days upon CUSTOMER’s receipt of the corresponding invoice from BioTuring.

If CUSTOMER is paying via electronic payment:

BioTuring will provide CUSTOMER with pricing and a link for electronic payment.
CUSTOMER will remit the payment within 3 days of receipt of the payment link.
BioTuring will then issue an invoice with the CUSTOMER PO number and submit per CUSTOMER instructions.
As soon as the CUSTOMER pays the License Fee via the electronic payment system, BioTuring will activate the License.

Amounts payable hereunder do not include any sales, use, excise, value added ("VAT") or other applicable Taxes. If any taxing authority imposes a VAT, goods and services tax, income, sales, use, service, consumption, business or similar tax (“Tax”) with respect to the work undertaken hereunder, the CUSTOMER agrees to pay that Tax amount. Without limiting the generality of the foregoing, if Applicable Law requires withholding of Tax imposed upon any payments made hereunder, CUSTOMER shall make such withholding payments to the government taxing authority in their country of incorporation as required, independent of the amount due to BioTuring.

PUBLIC DATA PROTECTION.

If CUSTOMER is granted a License to access published datasets available in the Software, CUSTOMER shall use the Software to open, visualize, analyze the published datasets, and download public datasets and objects in accordance with the terms set forth in their License. If CUSTOMER wishes to download or export datasets beyond those specified in the original License, transfer or import downloaded datasets into other programs by any means and in any form, CUSTOMER will need BioTuring’s consent and may need to enter other agreements with BioTuring on the use of published datasets outside of the Software.

For the avoidance of doubt, published datasets shall not include Analysis Results and all intellectual property rights in or in respect of Analysis Results shall vest in CUSTOMER absolutely.

UPDATE

CUSTOMER hereby agrees that BioTuring has the right to update, revise, supplement, and otherwise modify this Software and to impose new or additional, policies, terms, or conditions (“Additional Terms”) with respect to the Software. CUSTOMER will be informed of any relevant Updates to the Software that apply to their purchased License. CUSTOMERS continued use of the Software following such Updates will be deemed to constitute their acceptance of any and all such Additional Terms and shall take effect immediately. CUSTOMER shall be responsible for maintaining a back-up of all CUSTOMER data at all times. CUSTOMER hereby agrees that BioTuring shall not be liable for any change, incompatibility or loss of CUSTOMER’s data arising from, or in connection with, the Update except for BioTuring’s gross negligence or willful misconduct.

VERIFICATION AND INSPECTION

CUSTOMER hereby agrees that BioTuring verifies Authorized User Software License each time CUSTOMER opens the Software. In this verification process, the Software will send the information about the License, CUSTOMER email ID, URL and related API used to access the Software. By installing, accessing, or otherwise using the Software, CUSTOMER agrees to the transmission of such information. Any action or attempt to disable, interrupt, bypass, circumvent, spoof, or otherwise modify this transmission is forbidden.

For the enforcement of BioTuring’s rights under this Agreement and applicable law, BioTuring or BioTuring’s authorized representative(s) shall have the right to inspect and audit CUSTOMER’s use of the Software, with or without prior written notice, to investigate any reported or apparent violation of this Agreement, or to verify that the CUSTOMER is legally authorized by BioTuring to install, access or otherwise use the Software and in compliance with the Agreement. If such inspection(s) or audit(s) prove your violation of the Agreement, then CUSTOMER must pay all the unpaid license fees and any reasonable costs of the inspection(s), and the license for the Software shall terminate. BioTuring or BioTuring’s representative(s) shall have the right to use and disclose the information obtained during the inspection or audit for the enforcement of BioTuring’s right under this Agreement and applicable law, or when such uses and disclosures are required by a court of competent jurisdiction. Nothing in this Section, or nothing in this Agreement, shall be deemed to limit any remedies that BioTuring can implement if any violation of this Agreement occurs.

INTELLECTUAL PROPERTY RIGHTS.

The Software is copyrighted and is licensed to CUSTOMER, not sold. BioTuring owns the title to the Software and all other rights that are not expressly granted to CUSTOMER under this Agreement at all times. CUSTOMER shall strictly comply with the copyright law and all other applicable laws of the United States and all other applicable jurisdictions including, but not limited to, export control laws. All the following actions are expressly prohibited:

CUSTOMER shall not (or shall not allow or authorize any third party to) reproduce or modify the Software in any form or by any means, or reverse assemble, reverse engineer, or decompile the Software, except to the extent applicable laws specifically prohibit such restriction.
CUSTOMER shall not (or shall not allow or authorize any third party to) sublicense, rent, lease, loan, lend, sell, distribute the Software or any portion of the Software in modified or unmodified form without BioTuring’s authorization.
CUSTOMER shall not translate, adapt, arrange, or create derivative works for the purpose outside of the scope of this Agreement based on the Software in any manner, and CUSTOMER shall not exploit the Software in any unauthorized way.
CUSTOMER shall not copy or otherwise replicate the Software for any purposes other than that required for reasonable memory backup or data stripping.
CUSTOMER shall not remove, destroy, erase, alter, exploit, or otherwise modify BioTuring’s or the Software’s logo(s) or any copyright or other proprietary notices from the Software or the user documentation without BioTuring’s authorization.

Notwithstanding any other provision of this Agreement, BioTuring shall have the right to modify access to the Software or any portion of the Software at any time if BioTuring has reasonable need to do so. Under no circumstances will BioTuring be liable for such change if the Software is suspended due to (a) CUSTOMER’S gross negligence or willful misconduct, (b) CUSTOMER’S breach of its obligations under this Agreement, or (c) Force Majeure Event defined in Section 12.

DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY.

THIS SOFTWARE, DATA CONTAIN THEREIN AND USER DOCUMENTATION ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

The limitations of liability provided for the paragraph immediately above shall not apply in relation to (a) any liability or right for indemnification under Section 9, (b) any damages arising from any material breach of obligations under this Agreement, including but not limited to, confidential and non-use obligation under Section 8, and (c) any damages arising from the gross negligence or willful misconduct by a Party.

CONFIDENTIALITY

“Confidential Information” shall mean all confidential and proprietary information, including but not limited to, all information, procedures, developments, results, data, know-how, marketing strategies, protocols, clinical reports, investigator brochures, conclusions, technologies and inventions, intellectual property rights, trade secrets, technical or non-technical, which a Party discloses (“Disclosing Party”) to the other Party (“Receiving Party”) under this Agreement, directly or indirectly in verbal form, written form, or through observation. “Confidential Information” shall not include any information which:

is at the time of the disclosure by the Disclosing Party hereunder publicly known or available;
after the disclosure by the Disclosing Party hereunder, becomes publicly known or available by publication or otherwise, other than by an unauthorized act or omission by the Receiving Party;
is in the possession of the Receiving Party without confidentiality restriction at the time of the disclosure by the Disclosing Party hereunder;
is lawfully received by the Receiving Party from any third party having the lawful right to make such disclosure, without obligation of confidentiality; or
is independently developed by the Receiving Party without use of or reference to Confidential Information, as demonstrated by records contemporaneous with such development or any other reasonable and competent proof.

BioTuring agrees not to use CUSTOMER Confidential Information for any purpose other than to support bug fixing, software improvements, feature implementations, or software demonstration and training to CUSTOMER or to support any partnership projects for CUSTOMER, if any (collectively “the Purpose”).

Both parties agree not to disclose the other Party’s Confidential Information, other than to the Parties’ Authorized Users, employees, Affiliates, officers and directors (collectively, “Representatives”) who have a need to know such information for the Purpose and agree to be responsible for any breach of its obligations under this Agreement by any of its Representatives.

Except as expressly set out in this Agreement, nothing contained in this Agreement shall be construed as granting any right or license to the Disclosing Party’s Confidential Information or to any invention or discovery derived from such Confidential Information and no patent application may be filed by the Receiving Company regarding or involving the Disclosing Company’s Confidential Information.

Upon written request or upon expiration or termination of this Agreement, all Confidential Information in the form of written, printed or other tangible documents, and all copies thereof shall be returned to the Disclosing Party and Confidential Information in the form of electronic data and files, and all copies thereof shall be deleted from the Receiving Party’s Computer systems and electronic data storage devices. Notwithstanding the foregoing, (i) any Confidential Information that the Receiving Party is required to retain by any applicable laws, rules and regulations including without limitation laws and regulations providing for a duty to preserve documents for a civil lawsuit may be retained in accordance with such laws, rules and regulations, (ii) digital backup files automatically generated by the Receiving Party’s customary electronic data processing system may be retained and properly stored as confidential files for the sole purpose of backup and will be deleted in accordance with the Receiving Party’s retention policy, and (iii) a single copy of the Confidential Information may be retained in the files of the Receiving Party for the sole purpose of determining the scope of obligations incurred by it under this Agreement or for legal purposes of compelled disclosure; provided that, in each case of the foregoing, the Receiving Party shall abide by the provisions in Articles 6(i) through 6(iv) which shall be applied mutatis mutandis to such retained information.

INDEMNIFICATION.

Each Party shall indemnify, defend, and hold harmless the other Party, its Affiliates, officers, directors, employees, agents, successors and permitted assigns (each, an “Indemnitee”) from and against any and all losses, liabilities, settlements, and expenses (Including without limitation costs and attorney fees) (“Losses”) incurred by the Indemnitee resulting from any claim or action by a third party (“Claim”) related to (a) its breach of this Agreement; (b) its gross negligence or willful misconduct; provided, however, that obligations pursuant to this Section will not apply to the extent such Losses result from the gross negligence or willful misconduct of any of the Indemnitee.

BioTuring shall indemnify, defend, and hold harmless Indemnitee on CUSTOMER’s side (“CUSTOMER’s Indemnitee”) from and against any and all Losses incurred by CUSTOMER’s Indemnitee resulting from any Claim related to CUSTOMER’s use of Software to the extent that CUSTOMER is in compliance with the obligations related to such use hereunder.

INDEMNIFICATION PROCEDURES A Party’s obligations to defend, indemnify and hold harmless under the first paragraph of Section 10 are conditioned on the other Party (i) promptly giving the indemnifying Party written notice of the Claim, and (ii) giving the indemnifying Party sole control of the defense and settlement of the Claim provided that (a) the indemnifying Party shall not settle any Claim or otherwise consent to an adverse action against the indemnified Party in such Claim that diminishes the rights or interests of the indemnified Party without the express written consent of the indemnified Party, (b) the indemnified Party shall provide to the indemnifying Party reasonable cooperation and assistance in the investigation and defense of any matter of indemnification at the indemnifying Party’s expense and (c) the indemnified Party may also participate, at its own discretion and expense, in such defense and settlement.

TERM OF AGREEMENT.

This Agreement commences on the Effective Date and continues until twelve (12) months from the Effective Date.

Termination for Cause.

A Party may terminate this Agreement for cause (i) if a material breach is curable, effective upon thirty (30) days written notice to the other Party of a material breach (specifying in reasonable detail the nature and circumstances of the material breach) if such material breach is not cured within such time, (ii) if a material breach is not curable, effective upon the date specified in written notice, or (iii) upon written notice if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

Termination without Cause.

Either Party may terminate this Agreement without cause upon thirty (30) business days prior written notice. In such an event, CUSTOMER acknowledges that it will not receive a refund of previous fees paid.

GENERAL PROVISIONS.

Any attempt or action to modify the purchased license, by or on behalf of CUSTOMER needs or is required to purchase is strictly prohibited, including but not limited to the use of multiplexing or pooling (hardware or software to pool connections, reroute information, or increase the number of Authorized Users that directly access or use the Software).

THE SOFTWARE IS DESIGNED FOR ANALYTIC AND RESEARCH PURPOSES ONLY. AS SUCH BIOTURING INSISTS THAT CUSTOMER SHALL USE THE SOFTWARE IN CONJUNCTION WITH ADDITIONAL METHODS, CHECKS AND EXPERTS’ GUIDANCE, BEFORE RELYING ON THE SOFTWARE FOR ANY SORT OF DIAGNOSTIC OR CLINICAL PURPOSES.

Parties shall not violate the export control laws of the United States of America and may be subject to other countries’ export or import laws and regulations. CUSTOMER hereby agrees to comply strictly with all such regulations and acknowledge that CUSTOMER is liable to obtain licenses to export, re-export, or import Software.

If any provision, or any portion of a provision, is found void or unenforceable by a court of competent jurisdiction, the validity and enforceability of any remaining portion of such provision and all other provisions remaining elsewhere herein shall remain in full force and effect and shall not be affected by such invalidity or unenforceability.

This Agreement constitutes the complete and exclusive statement of the Parties with respect to the Software use and supersedes all prior or contemporaneous agreements and understandings, including but not limited to all terms and conditions contained in any purchase order, order acknowledgment form, invoice, advertisement, catalog or other publication or statement.

No breach of any provision of this Agreement will be waived except with the express written consent of the Party not in breach.

The provisions of clauses 3, 6, 8, and 9, shall survive the expiration or termination of this Agreement for any reason.

Neither Party shall use the name, trademark, trade name or logo of the other Party or its employees in any publicity, news release or disclosure relating to any of this Agreement, its subject matter, or the activities of the Parties hereunder without the prior express written permission of the other Party.

FORCE MAJEURE.

Neither Party shall be considered in default in the performance of an obligation under this Agreement or be liable for any damages due for any failure, inability or delay of performance occurring due to acts of God, including severe acts of nature or weather events; war; terrorist act; government regulation, restriction or order which includes government allocation of materials, equipment, and facilities; any state of emergency, riots; disaster; strikes; pandemic and pandemic- related events such as shelter-in-place orders, quarantines, government shutdowns, substantial interruption to air travel, substantial interruptions in supply chains; any one of which make performance commercially impracticable, illegal or impossible (a “Force Majeure Event”). In the event of such a Force Majeure Event, the affected Party shall promptly inform the other Party. Any deadline or time for performance specified hereunder that falls due during or subsequent to occurrence of any Force Majeure Event will be automatically extended for a period of time equal to the period of such disability.

GOVERNING LAW AND DISPUTE RESOLUTION.

This Agreement shall be governed and construed with the laws of the State of California, U.S.A, excluding its conflicts of law rules, and of the United States of America. The Parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.

LANGUAGE.

The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations.

PRIVACY POLICY

BioTuring does not track any CUSTOMER search history including but not limited to gene and cell type queries and does not view the CUSTOMER data in the disk storage. The CUSTOMER may choose, at their own discretion, to share any data with BioTuring for support and troubleshooting within the Software. BioTuring does not assume any liability for consequences arising from such actions. For security purposes, BioTuring can see the email address of the CUSTOMER Authorized Users when they log-in to the Software and anonymized usage statistics. The Software automatically verifies License information every time the CUSTOMER launches the Software. This license verification process sends the user email to BioTuring to check the validity of the CUSTOMER License. Collected information is clearly listed in the Verification term herein.

If CUSTOMER shares any data with BioTuring, the data will be available in the CUSTOMER’S BioTuring workspace. Only the CUSTOMER has access control over this data and workspace. BioTuring will never use the information for anything other than the Purpose without CUSTOMER permission. CUSTOMER can delete the shared data at any time. Otherwise, the Software will retain shared data as long as there is no valid authorized action taken by the CUSTOMER.

BioTuring protects CUSTOMER information with Secure Sockets Layer (SSL) technology, to keep it from being stolen or exploited by a third party when CUSTOMER enters it. BioTuring highly recommends double-checking CUSTOMER security before uploading or submitting data, by checking the URL and the annotation next to it. CUSTOMER is accessing a secure server if the URL contains “https’’, and there is a closed lock (or an unbroken key) icon to the left of it.

Under no circumstances does BioTuring collect your credit card information. If CUSTOMER chooses to remit the License Fee via electronic payment, then the payment is processed and secured by Stripe, a third-party online payment platform. We chose them in part because they also claim not to retain your credit card information. Please refer to Stripe’s security clause here: https://stripe.com/privacy

For security purposes, the CUSTOMER shall not provide BioTuring any information that can be used by itself or in combination with other available information to identify a specific individual for example patient records, clinical sample information, - any direct identifiers, or key-coded or pseudonymized data relating to individual persons. All information provided to BioTuring should be sufficiently pseudonymized to prevent the reattribution of information or samples to any individual or be “De-Identified Information” that does not contain any “Protected Health Information” (as that term is defined under the Health Insurance Portability and Accountability Act of 1996, Subtitle D of the Health Information Technology for Economic and Clinical Health Act of 2009, and regulations and other guidance promulgated under both laws, as may be amended from time to time (collectively, “HIPAA”) in accordance with safe harbor rule of the HIPAA regulations.

BioTuring will notify Authorized Users about any update to the Software, terms, and its policy through the email address that Authorized Users provided BioTuring during the registration. Authorized Users can change the email address or unsubscribe from this mailing list at any time by sending an email to (support@bioturing.com.).

BioTuring always strives to keep CUSTOMER information secure with organizational, technical, and administrative measures. However, no data transmission or storage system is guaranteed to be 100% secure. If CUSTOMER believes that its interaction with the Software or BioTuring is no longer secure, please contact BioTuring immediately.

COUNTERPARTS

This Agreement may be executed in separate counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one and the same agreement. Any such counterparts even if executed and/or transmitted electronically via the trusted electronic signature vendor, including scanned signed documents or digital signatures, shall bind the Parties to the same extent as documents with original signatures.