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Software Licensing Agreement

DEEPORIGIN, INC.

SOFTWARE LICENSING AGREEMENT

This SOFTWARE LICENSING AGREEMENT (this “Agreement”) is entered into between Deep Origin, Inc., a Delaware corporation having its principal place of business at 1000 Woodbury Road, Suite 102, Woodbury, New York 11797 (“Deep Origin”), and the Person or entity identified on the Service Order as the licensee of the Service (“Subscriber”).

RECITALS

A.      Deep Origin has developed and owns the rights to Software;

B.      Subscriber wishes to license such software for its and its Authorized Persons’ use on the Deep Origin Marketplace as set forth in this Agreement in exchange for the compensation described herein;

C.      Subscriber has entered or shall enter into a Master Service Agreement with Deep Origin, as well as one or more order forms or other itemization of services and access rights to the Deep Origin Marketplace (collectively the “Service Order(s)”) and Subscriber’s use of the Service shall be bound by the Master Service Agreement, the Service Order(s) and Deep Origin’s User Terms of Service and Privacy Policy (collectively, the “Terms”), as well as the terms of this Agreement; and

NOW THEREFORE, in consideration of the foregoing and other valuable consideration, receipt and adequacy of which is hereby acknowledged, Deep Origin and Subscriber agree as follows.

AGREEMENT

1.               Definitions.

The following terms will have the following meanings as used in this Agreement. The terms of the Master Service Agreement, the Service Order(s) and Deep Origin’s User Terms of Service and Privacy Policy (collectively, the “Terms”), available on the Deep Origin Sites, which, by this reference, are incorporated herein, shall continue to govern Subscriber’s access to and use of the Marketplace. All capitalized terms not defined herein shall be understood as defined in the Terms. If there is a conflict among the terms and conditions in this Agreement and any of the Terms, the descending order of precedence will be as follows: (1) Amendments or Addendums to this Agreement (if applicable), (2) this Agreement, (3) the Master Service Agreement; and (4) the Terms of Service and Privacy Policy.

1.1        “Affiliate” of a party shall mean and include any entity or association controlled by, controlling, or under common control with such party. For purposes of this definition, the term “control” shall mean the ownership of more than fifty percent (50%) of the voting shares in any entity or association.

1.2            “Event of Default” shall mean any of the following events: (a) a party becomes insolvent or is unable to pay its debts as they mature, or makes an assignment for the benefit of creditors; (b) a petition under any foreign, state or United States federal bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by a party; or (c) such a petition is filed by any third party, or an involuntary petition is not resolved favorably to such party within sixty (60) days after the petition is filed.

1.3            “Deep Origin Site(s)” shall mean Deep Origin’s websites located at https://deeporigin.com, https://deeporigin.io, as well as any successor or related site designated by Deep Origin, as shall be updated by Deep Origin from time to time.

1.4           “Intellectual Property Rights” shall mean any and all right, title, and interest, arising or existing as of the date of this Agreement or at any time thereafter, anywhere in the world, including, but not limited to, all patent, patent registration, copyright, trademark, trade name, service mark, service name, trade secret, or other proprietary right arising or enforceable under any United States federal or state law, rule or regulation, non-United States law, rule, or regulation or international treaty in any technology, system, invention, discovery, know-how, process, method, information, medium, or content, including, but not limited to, text, print, pictures, photographs, video, marks, logos, designs, drawings, artistic and graphical works, computer software, source code, algorithms, patterns, processes, techniques, and documentation, any other works of authorship and any form, method, or manner of expression or communication now known or hereinafter becoming known.

1.5           “Software” shall mean the software identified on the Service Order, which is incorporated by reference, as it may be revised and updated by the parties from time to time.

1.6           “Software Update” shall mean any revision or minor improvement to Software to maintain an operative status.

1.7           “Software Upgrade” shall mean a new version or release of the Software from Deep Origin which improves the functionality or adds functional capabilities to the Software that is not included in a Software Update

2.               License.

2.1            Grant of License to the Software. Subject to this Agreement, Deep Origin grants Subscriber, and its Authorized Persons (collectively referred to herein, as the Subscriber), a non-exclusive, non-transferable, revocable, limited right and license to access and use the Software (the “License”), by accessing the Deep Origin Marketplace.

2.2            Subscriber Access to Deep Origin Software. In order to access the Software from the Marketplace, Subscriber shall enter into a Master Service Agreement with Deep Origin, as well as one (1) or more order forms or other itemization of services and access rights to the Marketplace (the “Service Order(s)”).

(a)             For each License, all computers on which the Software is used must be owned or controlled by the Subscriber. The license type and duration shall be as set forth on the Service Order.

2.3            Fees. The Fees to be paid by Subscriber for the License to the Software shall be as set forth under the applicable Service Order. Such fee is exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Subscriber under this Agreement.

(a)             Academic Use. If Subscriber establishes to Deep Origin that Subscriber is an academic research facility, Subscriber may be granted a nonexclusive, non-transferable License to use the Software solely for educational or noncommercial (academic) research purposes and no Fees shall be owed to Deep Origin in consideration for such License (an “Academic License”). Subscriber’s use of the Software pursuant to an Academic License is subject to Subscriber’s compliance with the Terms, this Agreement, and the following conditions of use:

(i)              Subscriber may use the Software solely for educational or academic research purposes.

(ii)            use of the Software under an Academic License shall be limited, in time and/or compute or usage levels, to be determined by Deep Origin and set forth on the Service Order. If Subscriber exceeds the maximum parameters for those usage terms, Subscriber shall be charged Fees for such use, in accordance with Deep Origin’s then-current pricing terms for the Service.

(iii)          the Software may not be used for a benchmark or other comparative evaluation with competitive products unless otherwise explicitly agreed in advance by Deep Origin in writing. It is not allowed under an Academic License to reverse engineer, disassemble, decompile, or otherwise view or access or attempt to access the source code of the Software or its algorithms and architecture, nor may the Software be sublicensed, rented, or leased, or used for commercial or administrative purposes.

(iv)           Unless expressly pre-authorized by Deep Origin in writing, the Software may not be used under an Academic License to conduct penetration testing.  

(v)            Subscriber is not allowed to make any modifications or alterations to the Software and is not allowed to create any derivative works thereof. Any such use or attempted use of the Software or extensions of the Software to other systems, e.g. systems for commercial use, which do not have an educational or noncommercial (academic) research purpose, are prohibited under an Academic License.

(vi)           Any academic or scholarly publication arising from the use of this Software will include the following acknowledgment: The Software used in this research was created by Deep Origin Inc and Deep Origin Inc.

(vii)         IN NO EVENT WILL DEEP ORIGIN BE LIABLE TO ANY ENTITY OR PERSON FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF THE USE OF THIS SOFTWARE UNDER AN ACADEMIC LICENSE, EVEN IF DEEP ORIGIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. DEEP ORIGIN SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE IS PROVIDED “AS IS.” DEEP ORIGIN HAS NO OBLIGATION TO PROVIDE MAINTENANCE, SUPPORT, UPDATES, ENHANCEMENTS, OR MODIFICATIONS OF THE SOFTWARE.

2.4            Updates and Upgrades. Deep Origin shall make available Software Updates to Subscriber during the Term of the Agreement. The License does not include any Software Upgrades, unless stated otherwise on the Order Form.

2.5            Audit and Inspection Rights.

Deep Origin or its Affiliates or representatives may monitor and inspect Deep Origin’s and Deep Origin’s server, systems and other materials as necessary to monitor and verify that Subscriber’s and its Authorized Person’s usage of the Software is consistent with this Agreement. On request and during regular business hours, Deep Origin or its Affiliates or representatives may, at its own expense, reasonably inspect and audit Subscriber’s servers and systems, books, records, and other materials as necessary to monitor and verify usage consistent with the License granted to it under this Agreement. For a Subscriber subject to an Academic License, Deep Origin or its Affiliates or representatives shall monitor such usage to ensure that Subscriber’s use of the Software is for academic and/or educational purpose and that such Subscriber is not exceeding the time limits and usage levels granted to Subscriber under the Service Order for such use. Deep Origin may charge Subscriber for any use in excess of the scope of the License granted to Subscriber.

3.               Representations and Warranties of Deep Origin.

Deep Origin represents and warrants to Subscriber that: (a) it is a corporation, duly organized, validly existing, and in good standing under the laws of the State of Delaware; (b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required; (c) it has the full right, power, and authority to enter into this Agreement, to grant Subscriber the rights and Licenses set forth herein, and to perform its obligations hereunder; (d) the execution of this Agreement and the delivery of this Agreement by Deep Origin have been duly authorized by all necessary action on the part of Deep Origin; and (e) it has the full right, power, and authority (by ownership, license, or otherwise) to use all Intellectual Property Rights embodied in the Software and to grant Subscriber the rights and licenses set forth herein on the terms and conditions of this Agreement.

4.               Representations and Warranties of the Subscriber.

Subscriber represents and warrants to Deep Origin that: (a) neither Subscriber, nor any of the Authorized Persons permitted access to the Software, are a competitor of Deep Origin, nor affiliated directly or indirectly with a competitor of Deep Origin; (b) Subscriber is either an individual or a company duly organized, validly existing, and in good standing under the laws of appropriate jurisdiction; (c) if a company, Subscriber is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required; (d) it has the full right, power, and authority to enter into this Agreement, and to perform its obligations hereunder; and (e) the execution of this Agreement by the individual who accepted this Agreement and the delivery of this Agreement by Subscriber have been duly authorized by all necessary action on the part of Subscriber.

5.               Intellectual Property.

5.1            Ownership; Reservation of Rights. Subscriber shall have no rights in any Intellectual Property Rights of Deep Origin, and such Intellectual Property Rights remains the exclusive property of Deep Origin. Deep Origin owns and shall retain all right, title, and interest in and to any and all Intellectual Property Rights covering or embodied in the Software. Subscriber receives no right or license, by implication, estoppel, or otherwise, to any Intellectual Property Rights under this Agreement. Subscriber acknowledges that all Software code may constitute trade secrets or other Intellectual Property Rights of Deep Origin. Subscriber shall not make any effort to access, use, manipulate, copy or otherwise interact with the Software’s source code at any time.

5.2            Improvements. In the event that Subscriber provides any suggestions, recommendations, or feedback regarding the Software, Subscriber hereby grants to Deep Origin a non-exclusive, perpetual, irrevocable, and worldwide license to use and exploit all such suggestions or feedback in connection with Deep Origin’s products and services without restriction.

5.3            Prohibited use of the Software. Subscriber shall not:

(a)            Violate any third party’s rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;

(b)            Post or share anyone’s personal information (including, but not limited to, identification documents and sensitive financial information, such as bank account or credit card numbers);

(c)            Threaten, stalk, harm, bully, or harass others, promote bigotry or discrimination, or incite violence;

(d)            Solicit personal information from others;

(e)            Send bulk emails, surveys, or other mass messages, whether commercial in nature or not;

(f)             Engage in keyword spamming, or otherwise attempt to manipulate the Software’s search results or any third-party website;

(g)            Engage in unlawful multi-level marketing, such as a pyramid scheme;

(h)            Do anything unlawful, misleading, malicious, or discriminatory;

(i)             Produce any Content that can harm people, including biological weapons or any documentation about them;

(j)             Violate the Terms;

(k)            Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Software, except as expressly authorized by Deep Origin in a separate written contract;

(l)             Use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion of the Software or any related content;

(m)          Reverse engineer, decompile, or otherwise attempt to extract the source code of the software or any part thereof;

(n)            refer to or otherwise make use of the knowledge of operation of the Software to build a competitive product or service, or build a product using similar ideas, features, functions or graphics of the Software, or copy, or modify any ideas, features, functions or graphics of the Software or create derivative works or improvements of or to any aspect of the Software; or for any purpose that is to the Company’s commercial disadvantage.

(o)            Record, process, or mine information about other users;

(p)            Test the security of the Software or the Software, conduct penetration testing, or attempt to gain unauthorized access to the Software, user accounts, computer systems or networks connected to the Software through hacking, password mining or any other means;

(q)            Attempt to access portions of the Software which are not intended for public or invited usage (the use of any information obtained from non-public portions of the Software is expressly prohibited);

(r)             Take any action that imposes, or may impose, in Deep Origin’s sole discretion, an unreasonable or disproportionately large load on Deep Origin’s technology infrastructure or otherwise make excessive traffic demands of the Software;

(s)            Remove, circumvent, disable, damage, or otherwise interfere with any security-related features of the Software, features that prevent or restrict the use or copying of content or features that enforce limitations on the use of the Software;

(t)             Use any device, software or routine that interferes with the proper working of the Software (or the servers and networks which are connected to the Software), or otherwise attempt to interfere with the proper working of the Software;

(u)            Use the Software to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Software or any related content;

(v)        Use the Software or any related content to transmit any computer viruses, worms, defects, Trojan horses, or other items of a destructive nature (collectively, "Viruses");

(w)          Use the Software to mine cryptocurrency, operate blockchain, or similar technology; and

(x)            not refer to or otherwise make use of the knowledge of operation of the Software to build a competitive product or service, or build a product using similar ideas, features, functions or graphics of the Software, or copy, or modify any ideas, features, functions or graphics of the Software or create derivative works or improvements of or to any aspect of the Software or the Documentation; or for any purpose that is to Deep Origin’s commercial disadvantage

5.4        Open Source Software. The Software may contain certain third-party software that is licensed under an open source license. Nothing in this Agreement is intended to limit Subscriber’s rights to such open source software under the applicable open source licenses

6.               Term; Termination.

6.1            Term. The term of this Agreement shall be as set forth in the Service Order and shall begin as of the Effective Date (the “Term”). The Term of this Agreement will not automatically renew, unless otherwise stated on the Service Order.

6.2            Termination by Deep Origin. Deep Origin may terminate this Agreement and disallow access to or use of the Software (i) in its sole discretion; (ii) if Deep Origin’s relationship with a third party partner who provides software or other technology Deep Origin may use to provide the Software expires, terminates, or requires Deep Origin to change the way Deep Origin provides the Software or any necessary component thereof; or (iii) in order to comply with Applicable Law or the request of governmental entities. Such termination by Deep Origin shall be effective immediately upon written notice to Subscriber.

6.3            Termination by Either Party for Cause. Either party may terminate this Agreement immediately upon written notice at any time if the other party is in material breach of any warranty, term, or condition of this Agreement and has failed to cure that breach within thirty (30) days after written notice thereof, or the other party experiences an Event of Default (collectively, “Cause”).

6.4            Effect of Expiration or Termination.

(a)             Upon Expiration of the Term. Upon expiration of the Term of this Agreement or Termination of this Agreement for any reason, Subscriber shall immediately (i) cease all use of Software as consistent with the terms of this Agreement; (ii) remove all installations, and instances of Software from Subscriber’s computers or any other devices on which such Software has been installed, as consistent with the terms of this Agreement; (iii) immediately return or, if instructed by Deep Origin, destroy all Deep Origin Content in Subscriber’s possession; and (iv) pay all amounts due and remaining payable to Deep Origin under existing Service Order(s) relating to the Software.

(i)             The parties’ respective obligations and agreements under Sections 3 and 4 (“Representations and Warranties”); Section 5.1 (“Intellectual Property Rights”); Section 7 (“Warranty and Disclaimer”); Section 8 (“Limitations of Liability”); and Section 9 (“Miscellaneous”) shall survive the termination or expiration of this Agreement for any reason.

7.               Warranty and Disclaimer.

7.1            Software Licensed As-Is. Except as expressly set forth in this Agreement, the Software is being licensed on an “AS IS” condition, with all faults and defects. Except as expressly set forth in this Agreement, no representations or warranties have been made or are made and no responsibility has been or is assumed by Deep Origin as to the functionality of the software or its fitness for a particular purpose.

7.2            Disclaimer. THE EXPRESS LIMITED WARRANTIES CONTAINED IN SECTION OR ELSEWHERE IN THE AGREEMENT ARE THE EXCLUSIVE WARRANTIES MADE BY DEEP ORIGIN. DEEP ORIGIN MAKES NO OTHER WARRANTIES WHATSOEVER, AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS, CONDITIONS, AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WRITTEN OR ORAL, WITH RESPECT TO THE SOFTWARE OR ANY SUPPORT SERVICES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THESE DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8.               Limitations of Liability.

8.1            No Consequential Damages. IN NO EVENT SHALL DEEP ORIGIN BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL DAMAGES, OR THE LIKE, EACH OF WHICH IS HEREBY EXCLUDED REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER SUBSCRIBER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBSCRIBER ASSUMES ALL RESPONSIBILITY FOR THE SOFTWARE.

8.2            Monetary Cap. IN NO EVENT SHALL DEEP ORIGIN’S AGGREGATE LIABILITY TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENTS, LIABILITIES, COSTS, EXPENSES, OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT), AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE TOTAL FEES PAID BY SUBSCRIBER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $50,000, WHICHEVER IS LESS. THE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

8.3            Mutual Indemnification. Each party (the “indemnifying party”) agrees to indemnify, defend and hold harmless the other party, and its employees, agents, affiliates, parent companies, subsidiaries, successors and assigns (the “indemnified party”) against and from any and all losses, damages, and expenses, including reasonable court or arbitration costs and reasonable attorney’s fees (“Losses”), arising out of: a Third-party claim of (a) personal injury, property damage, breach of contract, or any other liability, arising from the actions or fault of the indemnifying party, its employees or agents; (b) material breach of this Agreement; and (c) violation of applicable law by indemnifying party.  

8.4            Subscriber Indemnification. Subscriber shall indemnify, defend, and hold harmless Deep Origin and its officers, directors, employees, agents, successors, and assigns (each, a “Deep Origin Indemnitee”) from and against any and all Losses incurred by such Deep Origin Indemnitee resulting from any Action by a third party (other than an Affiliate of a Deep Origin Indemnitee) that arise out of or result from, or are alleged to arise out of or result from: (a) the Software, including any processing of the Software by or on behalf of Deep Origin in accordance with this Agreement, and any claim that the Software, or any portion thereof, infringes upon any Intellectual Property rights held or alleged to be held therein by a Third-party; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Subscriber or any Authorized Person to Deep Origin, including Deep Origin’s compliance with any specifications or directions provided by or on behalf of Subscriber or any Authorized Person to the extent prepared without any contribution by Deep Origin; (c) allegation of facts that, if true, would constitute Subscriber’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Subscriber, any Authorized Person, or any third party on behalf of Subscriber, an Affiliate, or any Authorized Person, in connection with this Agreement; (e) any use of the Service or Documentation by or on behalf of Subscriber or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement or the Documentation or in any manner contrary to Subscriber’s instructions; (f) an investigation, claim or finding by a government that Subscriber, the Software, or Subscriber’s use of the Service is or may be in violation of any regulation, statute, or governmental ordinance of any jurisdiction, common law or otherwise; or (g) any data loss by Subscriber (including, but not limited to loss of any Software), whether it was caused by Deep Origin or any other parties.

8.5            Third-party Infringement Claims.

(a)             In the event a Third party claims the Service (other than Third party components of the Service) infringes its Intellectual Property or other rights, Deep Origin shall use reasonable commercial effort to acquire a license, modify the Service to avoid infringement, or otherwise resolve such claim, provided that if in Deep Origin’s judgment it is or will be unable to avoid such infringement, then Deep Origin shall have the right to terminate this Agreement, at least in respect of the infringing Content, and in such case, Deep Origin shall refund to Subscriber any prepaid subscription Fees, if any. The foregoing remedies are the sole and exclusive remedies available to Subscriber for alleged infringement by Deep Origin of Third-party Intellectual Property rights.

(b)            In the event a Third party claims the Software (other than Third Party components thereof, if any) infringes its Intellectual Property or other rights, Subscriber shall use reasonable commercial effort to acquire a license, modify the Software to avoid infringement, or otherwise resolve such claim, provided that if in Subscriber’s judgment it is or will be unable to avoid such infringement, then Subscriber shall have the right to terminate this Agreement, in respect of the infringing Content.

8.6            Procedure. Each party shall promptly give written notice of any such claims for which it reasonably believes it is entitled to indemnification pursuant to this Section; shall reasonably cooperate and provide reasonable assistance in the defense of such claim; and shall not unreasonably withhold consent from any settlement thereof. Notwithstanding the above, the indemnifying party shall not be obligated to defend, indemnify or hold the indemnified party harmless to the extent any claims, losses, damages, expenses or other amounts are suffered by the indemnified party as a result of its own negligent or intentional act, omission, failure to comply with this Agreement, or violation of law.

8.7            Legal Compliance. Subscriber shall at all times comply with all federal, state, and local laws, ordinances, regulations, and orders that are applicable to the operation of its business, and this Agreement and its performance hereunder. Without limiting the generality of the foregoing, Subscriber shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement.

8.8            Safety. Subscriber is solely responsible for selection of the Software for its intended use, for the safe and proper use of data and information output that may be generated by the Software, and for compliance with all applicable laws, rules, and regulations in the use of the Software.

9.               Miscellaneous.

9.1            Assignment. Subscriber shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Deep Origin. Any purported assignment or delegation in violation of this section shall be null and void. No assignment or delegation shall relieve Subscriber of any of its obligations hereunder. Deep Origin may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without Subscriber’s prior written consent.

9.2            Notices. All notices, requests, demands, and other communications hereunder shall be in writing and sent to the parties at their respective addresses, via email (if written confirmation may be obtained), personal delivery, overnight courier, or certified mail. If sent to Subscriber, notices will be sent to the billing address on file. If sent to Deep Origin, notices will be sent to 1000 Woodbury Road, Suite 102, Woodbury, New York 11797 and legal@deeporigin.com. The date and time of confirmation (for email), certification, or delivery (if notice is by personal delivery or overnight courier) shall be the date and time of such notice, unless such date and time do not fall between 9:00 a.m. and 5:00 p.m. (recipient’s time zone) on a business day, in which case the date and time shall be deemed to be 9:00 a.m. on the next business day. Courtesy copies of all communications sent to any party hereunder shall be sent to Deep Origin’s corporate counsel, Ropers Majeski PC, 545 Middlefield Road, Suite 245, Menlo Park, California 94025, Attention: François Laugier, francois.laugier@ropers.com.

9.3            Amendments. No alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement shall be valid or binding on either party unless mutually assented to in writing by authorized representatives of both parties.

9.4            Severability. If any provision of this Agreement is adjudged by a court to be invalid, void, or unenforceable, the parties agree that the remaining provisions of this Agreement shall not be affected thereby, that the provision in question may be replaced by the lawful provision that most nearly embodies the original intention of the parties, and that this Agreement shall in any event otherwise remain valid and enforceable.

9.5            Governing Law. This Agreement and any dispute arising from the performance or breach thereof will be governed by, construed, and enforced in accordance with, the laws of the State of California, without reference to conflicts of laws. This Agreement will not be governed by the Uniform Computer Information Transactions Act or the United Nations Convention on Contracts for the International Sale of Goods, the application of which are expressly excluded.

9.6            Jurisdiction. The parties agree that in any dispute exclusive jurisdiction and venue shall be in the state and federal courts of California. The parties mutually acknowledge and agree that they shall not raise in connection therewith, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing. The parties acknowledge that they have read and understand this section and agree voluntarily to its terms.

9.7            Force Majeure. Nonperformance of any party other than with respect to payment obligations will be excused to the extent that performance is rendered impracticable by pandemic, strike, fire, earthquake, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.

9.8            Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of any party to require the performance of any term or obligation of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.

9.9           Injunctive Relief. The Parties agree that if Subscriber provides or attempts to provide access to the Software to non-Authorized Persons, if there is a breach or threatened breach by Subscriber of any of its obligations under Section 3, it would cause Deep Origin irreparable harm for which monetary damages would not be an adequate remedy and agree that, in the event of such breach or threatened breach, Deep Origin will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without the necessity of posting a bond or proving actual damage, irreparable injury or lack of a remedy at law. All remedies are cumulative and injunctive remedies are not exclusive. For all equitable claims, the Parties hereby consent to the sole and exclusive venue and personal jurisdiction of state or federal courts located in San Francisco, California.

9.10         Export Compliance. Subscriber shall adhere to all applicable United States and foreign export control laws and regulations and will not export or re-export any technical data or Software to any proscribed country listed in the United States Export Administration regulations, or foreign national thereof, unless properly authorized by the United States Government.

9.11         Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties of the parties contained herein shall survive the expiration or earlier termination of this Agreement.

9.12         Counterparts. Any amendments to this Agreement must be in writing and may be executed in one (1) or more counterparts, each of which shall be deemed an original, and all of which, together shall constitute one in the same instrument. The parties consent to use of facsimile, electronic, and/or digital signatures, which shall be binding as if they were an original signature.  

9.13         Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise. Notwithstanding the previous sentence, the parties intend that Subscriber’s rights under Section 5 (“Warranty and Disclaimer”) and Section 6 (“Limitations of Liability”) are Subscriber’s exclusive remedies for the events specified therein.

9.14         Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.

9.15         Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments and appendices, constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings or agreements, whether written or oral, between Deep Origin and Subscriber with respect to such subject matter. The terms of this Agreement prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement, including any of Subscriber’s general terms and conditions contained in any Service Order or other document issued by Subscriber.

Please read this Agreement carefully before you start to use the Software. By using the Software, clicking to accept or agree, and/or continuing to use the Software, Subscriber agrees to conduct business electronically and affirms that Subscriber has reviewed and agrees to be legally bound by the terms of this Agreement, as well as all documents referenced herein. If you do not want to agree to the terms of this Agreement, you must not access or use the Software.

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