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Updated: June 8, 2017
IMPORTANT – READ CAREFULLY. This End User License Agreement (“Agreement”) is a legal contract between you (“Licensee”) and Neogen Corporation, a Michigan corporation (“Neogen”), governing the use of, and access to, Neogen’s software, software as a service, its website, and any other information related technology provided by Neogen to Licensee, together with the intellectual property and any algorithms embodied therein or thereon and any updates or other modifications supplied by Neogen for use with such software, and all manuals, help files or documentation (collectively the “Software”).
BY CLICKING ON THE “AGREE” BUTTON OR BY DOWNLOADING, INSTALLING, ACCESSING OR OTHERWISE USING THE SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSEE MUST NOT USE THE SOFTWARE.
Neogen may update this Agreement from time to time, and any such update takes effect upon Licensee’s continued use of the Software. The date this Agreement was last revised is identified at the top of the page. Licensee is responsible for ensuring Neogen has an up-to-date active and deliverable email address for Licensee and for periodically visiting this Agreement to check for any changes.
License. Neogen grants Licensee, a non-exclusive, non-transferable license to use the Software solely for Licensee’s business purpose and internal use and solely in connection with the purchase of Neogen’s instruments and consumable products. Licensee may make copies of the Software as necessary for archive, testing, or backup purposes only. Licensee agrees to reproduce and include any copyright notices, trademarks, or other legends or credits included in the Software, or requested in writing by Neogen, in and on every copy made by Licensee of the Software, or part thereof. The existence of any copyright notice shall not be construed as an admission or presumption of publication of the Software.
LICENSEE MAY NOT (i) DISCLOSE THE SOFTWARE TO UNRELATED THIRD PARTIES OR SUBCONTRACT, SUBLICENSE OR OTHERWISE ALLOW USE OF THE SOFTWARE BY UNRELATED THIRD PARTIES; OR (ii) USE THE SOFTWARE FOR FEE FOR SERVICES ACTIVITIES OR SERVICE BUREAU ACTIVITIES UNLESS PERMISSION IS GRANTED BY NEOGEN IN WRITING.
- License Fees. Licensee agrees to pay the license, maintenance, and renewal fees, if any, as agreed to by Licensee electronically at the time of purchase, or otherwise pursuant to a written agreement between the parties, of the License for the Software (“Additional Terms”). All license and maintenance fees are non-refundable. Licensee acknowledges that its failure to timely pay any of the fees payable will be a material breach of this Agreement for which Neogen may, in addition to pursuing all other remedies, withhold the Software or terminate this Agreement as provided in Section 5.
Restrictions. Licensee shall not: remove or destroy any proprietary rights marks or legends on or in the Software; adapt, translate, modify, enhance, or create derivative works of the Software; assign, distribute, sublicense, rent, lease, sell, post on the Internet, or otherwise transfer the Software in print or through any electronic or other medium; or make copies of the Software other than for archival, testing, and backup purposes. Licensee shall have no rights with respect to any Software source code and Licensee agrees not to reverse engineer, disassemble, decompile, or otherwiseattempt to derive such source code.
Licensee agrees to hold the Software in confidence and shall not disclose the Software, or any part thereof, without prior written approval of Neogen, except to its employees to whom disclosure is necessary for use of the Software or as otherwise permitted in this Agreement. Licensee acknowledges that the Software may contain certain encryptions, or other devises which may prevent or detect unauthorized use of the Software. Temporary use of the Software on backup equipment may require assistance from Neogen.
Where any of Neogen’s rights to the Software, or part thereof, arise under an agreement with a third party supplier, such supplier shall have the benefit of Neogen’s rights hereunder and shall be a third party beneficiary of this Agreement.
- Ownership.Neogen is the owner or licensee of all right, title and interest, including all intellectual property rights, in and to the Software. The Software may include software licensed from third parties. Any improvements made by Licensee to the Software are owned by Neogen, and Licensee hereby grants, and agrees to grant to Neogen, all of Licensee’s right, title and interest in and to such improvements. No title to the Software is transferred to Licensee.
Term. Unless otherwise stated in any Additional Terms, the term of Agreement commences when Licensee installs, uses, or accesses any of the Software and will continue in effect until terminated by Licensee or Neogen as set forth in this Section 5 or as otherwise agreed in writing by Neogen.
Except as agreed by the parties under any Additional Terms:
(a) Neogen may terminate this Agreement at any time without notice and for any reason, including if it ceases to support the Software, which Neogen may do in its sole discretion.
(b) Licensee may terminate this License at will on thirty (30) days prior written notice to Neogen. Within ten (10) days after termination, Licensee shall certify in writing to Neogen that all copies, in whole or in part, in any form, of the Software have been destroyed or returned to Neogen.
- Disclaimer of Warranty. THE SOFTWARE IS PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEOGEN, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE OR LICENSEE DATA, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, NEOGEN PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO LICENSEE.
- Remedy; Limitation of Liability. IN NO EVENT SHALL NEOGEN OR ITS DISTRIBUTORS BE LIABLE TO LICENSEE FOR INDIRECT, SPECIAL, EXEMPLARY, MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES, FOR LOSS OF ANTICIPATED PROFITS OR BUSINESS, LOSS OF DATA OR SAMPLES, LOSS OF BUSINESS REPUTATION OR FOR INTERRUPTIONS IN BUSINESS, WITH RESPECT TO ANY CLAIM OF ANY KIND RESULTING FROM THE SOFTWARE OR LICENSEE DATA OR THEIR USE OR MISUSE, WHETHER THE BASIS OF SUCH LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY), STATUTORY OR ANY OTHER LEGAL THEORY WHATSOEVER. NEOGEN’S AND ITS DISTRIBUTORS’ LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE DOLLAR AMOUNT PAID FOR THE SOFTWARE IN THE PREVIOUS FOUR (4) MONTHS. THE REMEDIES SET FORTH IN SECTION 7 SHALL BE LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF NEOGEN’S WARRANTIES.
- Indemnification. Licensee agrees to indemnify, defend, and hold harmless Neogen and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, arising from or relating to Licensee’s use or misuse of the Software or Licensee’s breach of this Agreement, including but not limited to the content Licensee submits or makes available through the Software.
If Licensee chooses, or is provided with, a user name, password or any other piece of information as part of Neogen’s security procedures, Licensee shall treat such information as confidential, and Licensee shall not disclose it to any other person or entity. Licensee also acknowledges that Licensee’s account is personal to Licensee and agrees not to provide any other person with access to the Software or portions of it using Licensee’s user name, password or other security information. Licensee shall notify Neogen immediately of any unauthorized access to or use of Licensee’s user name or password or any other breach of security. Licensee shall ensure that Licensee exits from its account at the end of each session. Licensee shall use particular caution when accessing the Software from a public or shared computer so that others are not able to view or record Licensee’s password or other personal information.
Neogen has the right to disable any user name, password or other identifier, whether chosen by Licensee or provided by Neogen, at any time in Neogen’s sole discretion for any or no reason, including if, in Neogen’s opinion, Licensee has violated any provision of this Agreement.
- Export Regulation.The Software, or its application, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, reexport, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the U.S.
- U.S. Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Licensee is an agency of the U.S. Government or any contractor therefor, Licensee receives only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
- Privacy and Data.
- Notices. In order for Neogen to deliver the Software, including associated analysis, reports and information, as required by Licensee, Neogen collects data from clients and third parties in the course of delivering the Software (the “Licensee Data”). Neogen may be required to share Licensee Data with third parties in the course of delivering the Software, Neogen may also aggregate the Licensee Data that it collects from other clients (the “Aggregated Data”) to perform market analysis and to improve the Software (the “Data Purpose”). Licensee authorizes Neogen to incorporate any Licensee Data obtained in providing the Software to Licensee into the Aggregate Data, as long as the Licensee Data and Aggregate Data are both in a de-identified and anonymized form, and provided further that: (i) no confidential information (including the identity of Licensee or its suppliers, customers or employees) will be disclosed by Neogen or be otherwise used or processed by Neogen in a manner that enables the identity of Licensee to be deduced or extracted; and (ii) the Licensee Data shall be used exclusively for the incorporation into the Aggregate Data, which shall be used exclusively for the Data Purpose. Licensee acknowledges that Neogen may utilize third parties to assist in the delivery of Licensee Data and review of Aggregated Data and shall hold Neogen completely harmless in accordance with Section 8 for such data sharing.
- Notices. All notices to Neogen shall be in writing and addressed to Neogen Corporation, Attn: President & COO, 620 Lesher Place, Lansing, Michigan 48912. All communications will be deemed given when hand-delivered; or if mailed, by registered mail with verification of receipt, upon date of mailing; or if by electronic mail or facsimile, when received (with verification of transmission sent promptly to the receiving party along with a hard copy of the communication); or if by national overnight carrier, the next day (with verification of delivery or declined delivery).
- Governing Law and Venue. The Agreement shall be governed exclusively by the laws of the USA and the State of Michigan. Any action brought by either party related to this Agreement shall be initiated and maintained in Ingham County, Michigan, or in the U.S. District Court of the Western District of Michigan, Southern Division, and the parties expressly submit to the exclusive personal jurisdiction and venue of these courts.
- Non-U.S. Resident Licensees
(a) If any dispute, controversy or claim arises out of or in connection with this Agreement with respect to Licensee who is not a resident of the United States or who is not doing business in the United States, including any question regarding its existence, validity, interpretation, breach or termination (a “Dispute”), it shall be referred, upon written notice (a “Dispute Notice”) given by one party to the other, to a senior executive from each party. The senior executives shall seek to resolve the Dispute on an amicable basis within fourteen (14) days of the Dispute Notice being received. Any Dispute not resolved within fourteen (14) days of the Dispute Notice being received may be referred by either party to arbitration as provided in Section 13.3(b)
(b) The Dispute shall be referred to and finally resolved by arbitration pursuant to the rules of the International Chamber of Commerce (“ICC”), which rules are deemed to be incorporated by reference into this Section 13.3. The tribunal shall consist of three (3) arbitrators, two (2) of whom shall be nominated by the respective parties. The chairman of the tribunal shall be nominated by agreement between the two party-nominated arbitrators within fourteen (14) days of the nomination of the second such arbitrator. Failing such agreement, the chairman shall be appointed by the ICC. The seat of arbitration shall be Lansing, Michigan. The language of the arbitration shall be English. The governing law of this contract shall be the substantive law of Michigan.
- Severability. Any part of this Agreement held to be invalid or unenforceable shall be revised so as to make it valid and enforceable and consistent with the intent of the parties expressed in that provision. All other provisions of this Agreement will remain in full force and effect.
- Entire Agreement. This Agreement (including all information incorporated by reference) constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and may be amended only by a writing signed on behalf of both parties. Electronic mail shall not be deemed to constitute a signed writing for purposes of this modification provision. No waiver of any right or remedy will be effective unless given in writing and signed on behalf of the party making such waiver.
- Binding Effect. These Terms and Conditions shall be binding on and insure to the benefit of Neogen and Licensee and their respective heirs, successors, or permitted assigns.
- Limitation of Action. No Action arising out of this License, regardless of form, may be brought by either party against the other more than the longer of (a) two (2) years after the cause of action has accrued or (b) such cause of action has been discovered.
- Attorney’s Fees. The prevailing party in any litigation involving this Agreement shall be entitled to recover, in addition to any other relief obtained, the costs and expenses, including reasonable attorney’s fees and expenses, incurred by the prevailing party.
- Construction of Agreement. There shall be no presumption against the party who drafted this Agreement when interpreting the meaning of its provisions. This Agreement has been executed in English, and the parties hereby agree that English shall be the governing language of this Agreement.
Upon termination, all rights granted to Licensee under this Agreement will also terminate. Licensee must immediately cease all use, and access, of the Software and delete all copies of the Software in its possession. For certainty, termination will not limit any of Neogen’s rights or remedies at law or in equity.