One Codex

The following terms of this End User License Agreement (“EULA”) and any updates made available at https://www.onecodex.com/legal/eula apply to Customer’s use of the One Codex Platform (as defined below).

1. Definitions.

As used herein, “including” will be deemed to be followed by the words “without limitation.”

“Customer” means the individual end user that is using the One Codex Platform or Services under this EULA.

“Derivative Data” means any and all data and other information that results or is derived from Customer’s or any End User’s use of the Services and that is used by One Codex in an aggregate, de-identified, and anonymized manner, including for indexing, maintaining, providing, and/or improving the Services.

“Input Customer Data” means the data and other information provided by Customer to One Codex for use in connection with the Services. “One Codex Data” means any data and other information that is not Input Customer Data or Output Customer Data that is (a) generated by One Codex in the course of providing the Services, including Derivative Data, service and usage data; and/or (b) otherwise collected by One Codex, whether as a result of the Services or otherwise, including from any other customers of One Codex.

“Output Customer Data” means the data and other information generated by One Codex on behalf of Customer and made available to Customer via the Platform.

“Platform” means One Codex’s proprietary software platform, which provides bioinformatics analysis, secure computation, and data management for microbial genomics.

“Services” means, collectively: (a) One Codex’s provision of the Platform; and (b) One Codex’s processing and use of Input Customer Data, and the production of Output Customer Data, which such Output Customer Data is made available to Customer via the Platform.

2. Provision of Services.

2.1 Services.

1. Access to Platform. During the Term One Codex will make the Platform available to Customer in accordance with this Agreement, including Section 2.3 herein, and One Codex hereby grants to Customer a revocable (solely as permitted herein), nonexclusive, non-transferable, non-sublicensable, license during the Term (as defined below) for Customer to access and use the Software and Platform solely as permitted herein. For clarity, the license granted by One Codex to Customer in this Section 2.1(a) (i) shall be to the Platform in object code form only and not to any source code related thereto, and (ii) does not include the right for Customer to create or have created on its behalf any derivative works based on the Platform or otherwise to adapt or modify the Platform or to have the Platform adapted or modified on its behalf.

2. Output Customer Data. As part of the Services, One Codex agrees to make Output Customer Data available to Customer via the Platform. One Codex may provide to Customer via the Platform certain features and functionality that permit the download and/or other export of certain Output Customer Data. Customer may utilize such features and functionality to download and/or export such Output Customer Data in the format provided by One Codex, which may be used solely as permitted herein. One Codex hereby grants to Customer a nonexclusive, non-transferable, non-sublicensable, license to the Platform during the Term for Customer to access and use the Output Customer Data solely for the foregoing purposes and in accordance with the terms of this EULA. To the extent the Output Customer Data includes any One Codex Data and/or Derivative Data, One Codex grants to Customer a limited, nonexclusive, non-transferable (except as permitted in Section 12), non-sublicensable license during the Term for Customer to use any such One Codex Data and/or Derivative Data solely in connection with Customer’s permitted use of the Output Customer Data and in no other capacity and for no other purpose.

2.2 Use and Protection of Customer Data.

1. Submission of Input Customer Data. By submitting Input Customer Data into the Platform, Customer hereby grants, and represents and warrants that it has all rights necessary to grant, all rights and licenses to the Input Customer Data required for One Codex and its subcontractors and service providers to use the Input Customer Data to provide the Services and for One Codex to generate any Derivative Data. Customer acknowledges and agrees that it shall be responsible in the event that any damage or loss of any kind results from Customer’s provision of any Input Customer Data to One Codex that is not owned or controlled by Customer. Except as permitted in Section 2.2(b), One Codex shall have no right to sell, resell, license, sublicense, assign, or otherwise transfer any Input Customer Data provided by Customer without Customer’s prior written consent. Notwithstanding the foregoing, Customer acknowledges and agrees that One Codex may create, collect, analyze, retain, and use Derivative Data (which, for clarity, shall be in aggregated and de-identified form) for the purposes of developing, operating, analyzing, improving, or marketing the Services and any related services associated with One Codex’s business, and One Codex agrees to protect such data in accordance with the terms of this EULA during the Term and after the expiration or termination of this EULA. Except as permitted in Section 2.2(b), if One Codex publishes, shares, or discloses any Derivative Data or Input Customer Data, such data will be aggregated or anonymized to reasonably avoid identification of Customer.

2. Sharing of Customer Data. The Platform may be configured to allow Customer, at Customer’s option, to share Input Customer Data and/or Output Customer Data (each, as applicable, “Shared Customer Data”) with other Platform users (each a “Sharee”). Customer is solely responsible for the decision to share Input Customer Data and/or Output Customer Data and for obtaining all necessary rights, authorizations, and consents necessary to share such Shared Customer Data. Customer acknowledges and agrees that once Customer has shared such Shared Customer Data it is no longer under Customer’s control and the Sharee of that Shared Customer Data is free to use that Shared Customer Data. For example, a Sharee may be able to download Shared Customer Data to its own computer and further disseminate such Shared Customer Data to others, including One Codex, even if such Shared Customer Data is removed from Customer’s account or Customer disables sharing of that Shared Customer Data. Customer acknowledges and agrees that One Codex has no liability arising out of Customer’s sharing of Shared Customer Data and One Codex expressly disclaims any liability with respect to such Shared Customer Data. One Codex has no obligation to assist Customer in resolving disputes arising from Customer’s sharing of Shared Customer Data with any third parties and Customer shall indemnify, defend, and hold One Codex harmless from any claim, dispute, or allegation brought by a third party against One Codex with respect to Shared Customer Data. Customer acknowledges and agrees that if it has shared such Shared Customer Data with a Sharee, such Sharee may have downloaded or copied such Shared Customer Data, and it may not be possible to recover such Shared Customer Data from such Sharee.

3. Terms of Service. Except as otherwise expressly provided in this EULA, all data submitted, used or otherwise existing on the Platform is subject to One Codex’s Platform Terms and Conditions, available at https://www.onecodex.com/legal/platform-terms, as the same may be amended from time to time in accordance with its terms.

2.3. General Restrictions. Customer will not, and will not permit any third party to: (a) use the Output Customer Data, Derivative Data, and/or One Codex Data except as permitted in this EULA; (b) decompile, disassemble, or reverse engineer the underlying software comprising the Platform or the Output Customer Data, Derivative Data, or One Codex Data (unless not permitted under applicable law); (c) sell, rent, lease or use the Platform, Output Customer Data, Derivative Data, and/or One Codex Data or any portion of any of the foregoing (except as expressly contemplated by this EULA); (d) remove, modify, or obscure any copyright or proprietary notices contained in the Platform, Output Customer Data, Derivative Data, and/or One Codex Data; (e) access or use the Platform to circumvent or exceed Platform account limitations or requirements; (f) use the Platform, Output Customer Data, Derivative Data, and/or One Codex Data for the purpose of building a similar or competitive product or service to the Platform or the Services, (g) obtain unauthorized access to the Platform, Output Customer Data, Derivative Data, and/or One Codex Data (including permitting access to or use of the Platform, Output Customer Data, Derivative Data, and/or One Codex Data via another system or tool, the primary effect of which is to enable input of requests or transactions by other than authorized users); (h) use the Platform, Output Customer Data, Derivative Data, and/or One Codex Data in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (i) publish, post, upload or otherwise transmit any data via the Platform that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (j) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Platform.

2.4. Reservation of Rights. Except to the extent otherwise expressly set forth in this EULA: (a) One Codex hereby reserves all rights in and to the Services, Platform, One Codex Data, and Derivative Data; and (b) Customer hereby reserves all rights in and to any Input Customer Data it provides hereunder. As between the parties, (x) One Codex owns all right, title and interest in and to the Services, Platform, One Codex Data, and Derivative Data (including any derivative works based on any of the foregoing), and (y) Customer shall own all right, title and interest in and to Input Customer Data and Output Customer Data.

2.5. New Services. The parties acknowledge and agree that any new features developed by One Codex as part of the Services or offered as part of the Platform at any time during the Term and provided to any of One Codex’s customers, whether or not created based on Feedback (collectively, “New Services”) shall belong to One Codex. Such New Services shall be deemed to be “Services” and included in the “Platform,” as such terms are defined herein. Except for the limited licenses expressly set forth herein, Customer shall have no rights to any such New Services (including with respect to creating derivative works thereof).

3. Representations and Warranties.

3.1. Representations and Warranties. Each party represents and warrants to the other that it has full right and power to enter into and perform under this EULA, without any third party consents or conflicts with any other agreement.

3.2. Warranty Disclaimer.

1. General Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS EULA: (I) ONE CODEX EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE; AND (II) THE PARTIES AGREE THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ONE CODEX MAKES NO OTHER WARRANTY AS TO THE SERVICES.

2. Results of Use of the Services, Output Customer Data, Derivative Data, and/or One Codex Data THE PARTIES ACKNOWLEDGE AND AGREE THAT THERE ARE CERTAIN RISKS INHERENT TO THEIR ENGAGEMENT HEREUNDER, AND THAT CUSTOMER’S USE OF, AND ONE CODEX’S PROVISION OF, THE SERVICES, OUTPUT CUSTOMER DATA, DERIVATIVE DATA, AND/OR ONE CODEX DATA MAY NOT RESULT IN ANY SPECIFIED RESULT. THE PARTIES FURTHER ACKNOWLEDGE AND AGREE THAT INFORMATION PROVIDED VIA THE PLATFORM, SUCH AS OUTPUT CUSTOMER DATA, DERIVATIVE DATA, AND ONE CODEX DATA IS INTENDED TO BE INFORMATIVE, AND SHOULD NOT BE CONSTRUED AS ADVICE OR RECOMMENDATIONS. ACCORDINGLY, ONE CODEX HEREBY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY RELIEVES ONE CODEX FROM, ANY CLAIMS, DAMAGES, COSTS, OR LIABILITIES THAT MAY ARISE FROM OR RELATE TO ANY ACTS OR OMISSIONS MADE BY CUSTOMER BASED IN WHOLE OR IN PART BASED ON ANY INFORMATION PROVIDED VIA THE PLATFORM, INCLUDING THE OUTPUT CUSTOMER DATA, DERIVATIVE DATA, AND ONE CODEX DATA.

4. Term and Termination.

4.1. Effective Date and Term. This EULA will remain in effect as long as One Codex is providing Services or Customer is receiving Services; provided, however, that One Codex may terminate this EULA at any time in its sole discretion.

4.2. Effect of Termination. Any terms that by their nature should survive do hereby survive termination or expiration of this EULA.

5. Limitation of Liability.

5.1. Liability Caps. IN NO EVENT SHALL ONE CODEX’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS EULA EXCEED ONE THOUSAND DOLLARS ($1,000.00).

5.2. Consequential Damages Waiver. IN NO EVENT SHALL ONE CODEX BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FOR ANY CLAIM OR DEMAND BY CUSTOMER, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF ONE CODEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6. Confidential Information.

6.1. Nondisclosure. One Codex and Customer each agree to retain in confidence the non-public information and know-how disclosed pursuant to this EULA which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within 30 days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). Notwithstanding any failure to so designate them, (i) the terms and conditions of this EULA, the Services, Derivative Data, and One Codex Data shall be One Codex’s Confidential Information; and (ii) Input Customer Data and Output Customer Data shall be Customer’s Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this EULA (and only to employees, contractors or agents who are subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is: (i) already publicly known without breach of this EULA; (ii) discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; or (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party. In addition, either party may disclose the Confidential Information of the other party to the extent such disclosure is required by law or court order; provided that, if legally permissible, the receiving party shall provide prompt notice thereof and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.

6.2. Remedies. Each party agrees and acknowledges that any breach or threatened breach of this Section may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this EULA or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.

6.3. Feedback. Customer may choose to or One Codex may invite Customer to submit comments or ideas about the Platform, Services, Output Customer Data, Derivative Data, and/or One Codex Data, including about how to improve the Platform, Services, Output Customer Data, Derivative Data, and/or One Codex Data or One Codex’s products (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place One Codex under any fiduciary or other obligation, and that all right, title, and interest in and to such Feedback shall belong to One Codex. Customer hereby assigns all right, title, and interest in and to such Feedback (which, for clarity, shall not include underlying Input Customer Data or Output Customer Data) to One Codex without any additional compensation to Customer or anyone else. Customer further acknowledges that, by acceptance of Customer’s submission, One Codex does not waive any rights to use similar or related ideas previously known to One Codex, or developed by its employees, or obtained from sources other than Customer.

7. Indemnification.

7.1. Disclaimer of One Codex Liability. One Codex assumes no liability hereunder for any claim or action based on, arising from, or related to: (i) any method or process in which the Platform, Services, Input Customer Data, Output Customer Data, Derivative Data, and/or One Codex Data may be used by Customer; (ii) any compliance with Customer’s specifications; or (iii) the combination, operation or use of the Platform, Services, Input Customer Data, Output Customer Data, Derivative Data, and/or One Codex Data with any programs or data not provided by One Codex or otherwise permitted in any documentation associated with the Platform and made available to One Codex’s customers. Customer shall indemnify defend and hold harmless One Codex and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) based on, arising from, or related to any third-party action to the extent based upon a claim of any kind based on any of the foregoing factors in (i) through (iii) (inclusive) in the foregoing sentence.

7.2. Customer Indemnification. Customer shall defend, indemnify, and hold harmless One Codex and its officers, directors, employees, agents, successors and assigns from and against any and all third-party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including attorneys’ fees) arising from or relating to: (a) One Codex’s ingestion, commingling, processing and use of the Input Customer Data in One Codex’s provision of the Services as contemplated in this EULA; or (b) Customer’s: (i) use of and access to the Platform or Services in a manner inconsistent with their documentation; (ii) a breach of Sections 2.1, 2.2, or 2.3; or (iii) negligence or willful misconduct.

7.3. Indemnity Procedures. The party seeking indemnification (the “Indemnified Party”) shall provide the party from whom indemnification is sought (the “Indemnifying Party”) with: (a) prompt written notice of any claim for which indemnification is sought (provided that a failure to provide such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that neither party may enter into a settlement of any kind that places any material obligation on the other party, or requires the other party to admit any liability, without the other party’s prior written approval, which will not be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense.

8. Compliance with Laws.

Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with this EULA (“Laws”).

9. Miscellaneous.

9.1. Assignment. Customer may not assign or otherwise transfer this EULA or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without the prior written consent of One Codex. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. One Codex may freely assign its rights and obligations under this EULA. Subject to this Section, this EULA shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.

9.2. Entire Agreement; Modification; Waiver; Severability. This EULA represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this EULA, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this EULA based on any representations other than those contained herein. No modification of or amendment to this EULA, nor any waiver of any rights under this EULA, shall be effective unless in writing and signed by both parties. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. If any provision of this EULA is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the EULA will remain in full force and effect.

9.3. Governing Law; Dispute Resolution. This EULA shall in all respects be governed by the laws of the State of Delaware without reference to its principles of conflicts of laws. Subject to the following arbitration requirements, the parties hereby agree that all litigation arising out of this EULA shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within New Castle County, Delaware. Customer hereby consents to the personal and exclusive jurisdiction and venue of these courts. For any dispute in connection with this EULA, the parties agree to first attempt to mutually resolve the dispute informally via negotiation. If the dispute has not been resolved after 30 days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this EULA, or the breach or alleged breach, by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in New Castle County, Delaware, unless otherwise agreed. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights.

9.4. Relationship of the Parties. Nothing in this EULA is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.

9.5. U.S. Government Restricted Rights. If the Platform is being licensed by the U.S. Government, the Platform is commercial computer software and documentation developed exclusively at private expense, and (i) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (ii) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.

9.6. Export Law Assurances. Customer understands that the Platform, Services, Output Customer Data, Derivative Data, and/or One Codex Data are or may be subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE PLATFORM, SERVICES OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL LAWS AND REGULATIONS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE PLATFORM, SERVICES OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.

9.7. Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this EULA, the prevailing party may be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.