LICENSE

This tool is part of the cytoverse framework. 

FRED HUTCHINSON
SOFTWARE LICENSE AGREEMENT

This SOFTWARE LICENSE AGREEMENT (the “Agreement”) is made by and between Fred Hutchinson Cancer Research Center (“Fred Hutch”), a Washington nonprofit corporation, and the Authorized User.  By downloading the code, Authorized User agrees to all terms and conditions of this agreement.
1.    Definitions.
    “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" for purposes of this Agreement means the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of more than fifty (50%) of the voting securities, by contract, or otherwise.  "Controlled by" and "under common control with" have correlative meanings.
    “Authorized User” means an individual natural person authorized to use and access the Software in accordance with Section 9. 
    “Confidential Information” has the meaning given to it in Section 13.1 below.
    “Documentation” means user manuals, technical manuals and any other materials provided by Fred Hutch, in printed, electronic or other form, that describe best practices or the installation, operation, use or technical specifications of the Software.
    “Feedback” means comments or suggestions from Licensee or its Authorized Users regarding the possible creation, modification, correction, improvement or enhancement to the Software, including without limitation ideas for the development of new products and services and any Licensee testimonials submitted by Licensee to Fred Hutch. Notwithstanding the foregoing, Feedback excludes Confidential Information of Licensee.
    “Intellectual Property Rights” means any and all intellectual property or proprietary rights, including without limitation patent, copyright, trademark, service mark, trade secret, moral, and contract rights in any country or jurisdiction in the world, whether or not registered or registerable, and all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues of them now or hereafter in force. 
    “Permitted Purposes” means the permitted purposes described in Exhibit A.
    “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
    “Representative” of a party means such party’s employees, independent contractors, directors, officers, attorneys, accountants, and other agents and representatives.
    “Software” means the software identified on Exhibit A together with any associated Documentation.
    “Term” means the term of this Agreement set forth on Exhibit A, as it may be earlier terminated as permitted by this Agreement.
2.    License.  Subject to Licensee’s strict compliance with all terms of this Agreement, Fred Hutch grants to Licensee a limited, non-exclusive, non-transferable license within the Territory and during the Term to use, access, install, and run the Software solely for the Permitted Purposes described in Exhibit A, solely through Licensee’s Authorized Users, and solely on and through devices owned or controlled by Licensee, Licensee’s Affiliates, or sublicensees (to the extent sublicensing is permitted hereunder).
3.    Ownership.  The Software is licensed, not sold or transferred, to Licensee.  As between Fred Hutch and Licensee, Fred Hutch shall remain the sole and exclusive owner of all right, title, and interest in and to the Software, including all Intellectual Property Rights associated therewith.
4.    EULA.  Licensee and its Authorized Users shall comply with the End User License Agreement for the Software, which EULA is made a part of this Agreement.  Fred Hutch may modify and update the EULA from time to time by providing Licensee with written notice of such new version at least thirty (30) days prior to the effective date of such new version.   
5.    Other Restrictions.  Licensee and its Authorized Users shall (a) use the Software in compliance with all applicable laws, regulations, ordinances, orders; (b) not use the Software for any purpose other than the Permitted Purpose; not use the Software outside the Territory; and comply with any additional terms, conditions, or restrictions set forth in Exhibit A.  
6.    Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software, whether such access or use is permitted by or in violation of this Agreement.
7.    Authorized Users. Only employees and independent contractors of Licensee, Licensee’s Affiliates, and any sublicensee (to the extent sublicensing is permitted hereunder), and the employees of such Affiliates and independent contractors, in each case who have agreed to comply with the terms of this Agreement and the EULA, may be designated as Authorized Users and permitted to use and access the Software.  
8.    Sublicensing.  Licensee may not sublicense its rights under this Agreement without Fred Hutch’s prior written consent.  For clarity, Licensee’s permitting an Authorized User to use and access the Software on Licensee’s or its Affiliate’s behalf at no charge in accordance with Section 9 shall not be deemed a “sublicense” hereunder and therefore shall not be subject to the conditions and restrictions set forth in this Section 10.  Any sublicense shall not exceed the scope of rights granted to Licensee hereunder. Licensee shall require all sublicenses to be in writing and to: (a) include an agreement by the sublicensee to be bound by the terms and conditions of this Agreement, (b) include Fred Hutch's right to enforce its rights in the Software; (c) provide that the term of the sublicense thereunder shall not extend beyond the Term; and (d) indicate that Fred Hutch is a third party beneficiary and entitled to enforce the terms and conditions of the sublicense. Licensee shall enforce all sublicenses at its cost and shall be responsible for the acts and omissions of its sublicensees with respect to such sublicenses. All sublicense rights shall terminate effective as of the termination or expiration of this Agreement.  Notwithstanding any sublicense agreement, Licensee shall remain primarily liable to Fred Hutch for all of Licensee's duties and obligations contained in this Agreement, including the payment of all Royalties due. Any act or omission of a sublicensee that would be a breach of this Agreement if committed or omitted by Licensee will be a breach by Licensee. Each sublicense agreement shall contain a right of termination by Licensee for the sublicensee's: (a) breach of any payment or reporting obligations affecting Fred Hutch; or (b) breach of any other terms or conditions of the sublicense agreement that is also set forth, in substance, in this Agreement, which breach would constitute a breach of this Agreement if Licensee failed to comply therewith. In the event of a sublicensee breach of these obligations, and if after a reasonable cure period provided in the sublicense agreement, not to exceed sixty (60) days, the sublicensee fails to cure the sublicensee breach, then Licensee shall terminate the sublicense agreement by written notice to the sublicensee within five (5) days thereafter and concurrently provide a copy of such notice to Fred Hutch.
9.    Updates to the Software.  Fred Hutch may, but is not obligated to, develop modifications or updates to the Software from time to time in its sole reasonable discretion.  During the term of this Agreement, if Fred Hutch develops bug fixes or security patches for the Software, Fred Hutch shall provide such bug fixes or security patches to Licensee at no additional charge.  If Fred Hutch develops any other modifications or updates (e.g., modifications that add new features or functionality), Fred Hutch may determine in its sole discretion whether to provide such modifications or updates to Licensee at no additional charge whether to make them available only for  additional compensation. 
10.    Term and Termination.
10.1    Term.  The Term of this Agreement is set forth in Exhibit A.  
10.2    Termination for Cause.  Either party may terminate this Agreement, effective upon written notice to the other party if the other party breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the breaching party does not cure such breach within thirty (30) days after receipt of written notice of such breach.
10.3    Termination Due to Insolvency.  Fred Hutch may terminate this Agreement, effective upon written notice to Licensee if Licensee (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within 45 days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
10.4    Termination for Convenience.  This Agreement may be terminated Licensee for convenience upon ninety (90) days’ prior written notice to Fred Hutch.  If Licensee terminates this Agreement for convenience, any fees paid by Licensee to Fred Hutch shall not be refunded.
10.5    Other Rights of Termination.  The rights of termination provided in this Section 12 are in addition to, and not in lieu of, any other rights of termination described elsewhere in this Agreement.
10.6    Consequences of Termination; Survival.  Upon termination of this Agreement for any reason, (a) any payment obligations incurred prior to the termination will immediately become due and payable, (b) all rights and obligations of the parties under this Agreement shall immediately terminate except as expressly provided herein, (c) each party shall return to the other or destroy all Confidential Information of the other party in its possession or control, and (d) Licensee shall cease using the Software and shall destroy all copies, if any, of the Software in its possession; provided, however, that Licensee may retain copies of any reports, data files, our other output generated using the Software prior to termination. The termination of this Agreement, regardless of how it occurs, will not relieve Licensee of any obligations that have accrued prior to termination, including payment obligations.  Where the context, nature, or express terms of any provision indicates intent that it shall survive the term or termination or expiration of this Agreement, then it shall survive the same.  This includes, but is not limited to, the sections of this Agreement entitled “Ownership,” “Compensation,” “Confidentiality,” “Term and Termination”, “Limited Warranties,” “Limitations of Liability,” “Indemnification,” and “General.”
11.    Confidentiality
11.1    Definition.  “Confidential Information” means any information that either party (the “Disclosing Party”) discloses to the other party (the “Recipient”) or that the Recipient otherwise learns or acquires in connection with the parties’ performance under this Agreement that the Disclosing Party designates as confidential or which Recipient should reasonably know is confidential due to the nature of the information or the circumstances surrounding its disclosure, whether such information is of a technical, business or other nature, and regardless of form or media now known or later developed.  Confidential Information includes, without limitation, (a) information regarding third parties which the Disclosing Party is obligated to keep confidential, (b) information or data relating to Disclosing Party’s business and technology, including by way of example and without limitation information concerning current or proposed projects, concepts, ideas, business models, processes, methods, trade secrets, know-how, inventions, discoveries, designs, technical specifications, source code, documents, marketing plans, sales information, strategies, financial information, and customer and supplier identities.  Confidential Information may be contained in tangible materials, such as documents, drawings, reports and computer programs, or may be in the nature of unwritten information that is disclosed orally or merely observed.  Confidential Information excludes any information that Recipient demonstrates (i) is or becomes generally known or available to the public through no failure on the Recipient’s part to preserve its confidentiality; (ii) is already in the possession of the Recipient, with no obligations of confidentiality, at the time of disclosure; (iii) is disclosed to the Recipient by a third party who has the right to disclose it without restriction on its further disclosure or use; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information.  Confidential Information of Fred Hutch includes, without limitation, all information about the Software that is not publicly available, including without limitation its source code and functionality.
11.2    Restrictions on Use and Disclosure.  Except as expressly permitted by this Agreement, Recipient will not, during or subsequent to the term of this Agreement use the Confidential Information for any purpose whatsoever other than the performance of its obligations under this Agreement or disclose the Confidential Information to any third party except with Disclosing Party’s prior written permission; provided, however, that Recipient may disclose the Confidential Information on a need-to-know basis to those employees, consultants, suppliers, and other agents and representatives of Recipient who (a) require access to such Confidential Information for the purpose of performing Recipient’s obligations under this Agreement; (b) are informed by Recipient of the confidential nature of such Confidential Information and the obligations of Recipient under this Agreement; and (c) have executed written restricted nondisclosure agreements with Recipient containing restrictions on use and further disclosure consistent with the terms of this Section 13.  Recipient shall be responsible for any breach of this Agreement by its agents or representatives.  Recipient agrees to take reasonable precautions to prevent any unauthorized disclosure, access, or use of Confidential Information, including implementing reasonable technical, administrative, and physical safeguards.
11.3    Disclosure Required by Law.  This Section 13 will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that if Recipient is subpoenaed or otherwise compelled by valid law or a court order to disclose Confidential Information, prior to disclosure, Recipient shall first give prompt written notice to Disclosing Party of the receipt of any subpoena or other request for such disclosure sufficiently in advance to permit Disclosing Party to contest the subpoena or requested disclosure and/or seek a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued; and provided further that Recipient shall provide Disclosing Party with reasonable assistance with any such action.
11.4    Notification Obligations.  Recipient will promptly notify Disclosing Party if Recipient becomes aware of any unauthorized disclosure or use of Confidential Information of the Disclosing Party and will cooperate with Disclosing Party to assist it in regaining possession of the Confidential Information and to prevent its further unauthorized disclosure or use.
11.5    Ownership.  Recipient agrees that all Confidential Information is and will remain the sole exclusive property of Disclosing Party or the applicable third party, as the case may be. 
11.6    Return or Destruction. Upon any written request from Disclosing Party, including after termination of this Agreement, Recipient shall promptly return or destroy all copies of Confidential Information (including backups, summaries, and excerpts) in its possession or control, and within ten (10) business days of Disclosing Party’s request, certify in writing to Disclosing Party that such return or destruction has been completed.
11.7    Relationship to Other Confidentiality Agreement.  The rights, obligations, conditions, and restrictions set forth in this Section 13 are in addition to, and not in lieu of, of any other confidentiality, or non-disclosure agreement entered into by and between the parties before, on, or after the date of this Agreement.  To the extent reasonable, this Section 13 and such other agreement shall be interpreted to be consistent with each other.  However, to the extent such interpretation is not reasonable, and to the extent of any conflict or inconsistency between this Section 13 and such other agreement, the provisions that are more protective of Confidential Information shall take precedence.
12.    Feedback.  Licensee grants Fred Hutch the right to use Feedback provided by Licensee or its Authorized Users.  Licensee agrees information disclosed by Fred Hutch during discussions related to Feedback shall be considered Fred Hutch Confidential Information.  Licensee grants to Fred Hutch a non-exclusive, perpetual, irrevocable, worldwide, royalty-free license, without restriction, remuneration, or attribution of authorship to use, publish, reproduce, distribute, display, perform, and disclose Feedback in any manner via any media without reference to the source.  Licensee acknowledges that Feedback disclosed to Fred Hutch under this Agreement is only intended as suggestions and is not intended to be binding upon Fred Hutch in any way.
13.    Warranty Disclaimer and Limitations of Liability
13.1    Warranty Disclaimer.  THE SOFTWARE IS PROVIDED “AS IS” WITH NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY, SECURITY, OR ACCURACY.  FRED HUTCH DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS ARISING FROM CUSTOM OR TRADE USAGE OR FROM COURSE OF DEALING OR PERFORMANCE.  WITHOUT LIMITATION TO THE FOREGOING, FRED HUTCH PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE 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 PROVIDED ERROR FREE, UNINTERRUPTED, SECURE, OR VIRUS-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
13.2    NO LIABILITY FOR CONSEQUENTIAL DAMAGES.  IN NO EVENT WILL FRED HUTCH BE LIABLE TO THE LICENSEE OR ANY THIRD PARTY UNDER ANY THEORY OR CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO INTERRUPTED COMMUNICATIONS, LOSS OR CORRUPTION OF DATA, A SECURITY INCIDENT OR OTHER BREACH OF SECURITY, OR LOST REVENUE OR PROFITS, EVEN IF FRED HUTCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.  
13.3    LIABILITY CAP.  AT NO TIME SHALL THE CUMULATIVE LIABILITY OF FRED HUTCH, TOGETHER WITH ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, AND REPRESENTATIVES, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THE SOFTWARE OR THIS AGREEMENT IN ANY WAY, UNDER ANY THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO FRED HUTCH BY LICENSEE UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE MOST RECENT CLAIM. 
13.4    APPLICABILITY.  THE LIMITATIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF THE REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
13.5    Bargained For Allocation of Risk.  Licensee acknowledges that the limitations of liability contained in this Agreement are an essential element of the Agreement between the parties and that in the absence of such limitations, the pricing and other terms set forth in this Agreement would be substantially different.
14.    Indemnification
14.1    Licensee’s Indemnification Obligations.  Licensee will indemnify, defend, and hold harmless Fred Hutch and its Representatives from and against all liabilities, losses, damages, injuries, harm, expense, expenditure and disbursement of every nature (including, without limitation, costs of investigation, travel expenses, and value of time expended by personnel), fines, fees, costs, and expenses of litigation, including, without limitation, reasonable attorneys’ fees incident to any of the foregoing (collectively, “Losses”) arising from or related to (a) Licensee’s use of the Software; (b) the acts or omissions of Licensee, its Representatives, its Authorized Users, any other Person whom Licensee or its Representatives provides with access to the Software; and (c) Licensee’s breach of any of the provisions of this Agreement.  Notwithstanding the foregoing, in no event shall Licensee be required to indemnify, defend, or hold Fred Hutch harmless from or against any Losses caused by (i) Fred Hutch’s material breach of this Agreement; (ii) any negligent, reckless, or intentionally wrongful act or omission of Fred Hutch or its Representatives; or (iii) any third party claim or allegation that the Software infringes, misappropriates, or violates a third party’s Intellectual Property Rights, unless such claim or allegation arises from (A) Licensee’s combination, operation or use of the Software with technology, content, data or other materials not supplied by Fred Hutch or (B) modifications to the Software made by or on behalf of Licensee.
14.2    ‎‎ Indemnification Procedures and Conditions.  All indemnification obligations set forth in this Agreement, whether in this Section 16 or elsewhere, are subject to the following terms:
(a)    Conditions to Indemnification.  The obligations set forth in this ‎Section shall apply only if the indemnitee (a) notifies the indemnitor in ‎writing of a claim promptly upon learning of or receiving the same and (b) provides the indemnitor with reasonable assistance requested by the indemnitor, at the indemnitor’s expense, for the defense and settlement, if applicable, of any ‎claim.  The indemnitee’s failure to perform any obligations or satisfy any conditions under this Section shall not relieve the indemnitor of its obligations hereunder except to the extent that the indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.  
(b)    Control of Defense.  After receipt of notice, the indemnitor shall be entitled, if it so elects, at its own cost, risk and expense: (a) to take control of the defense, investigation, and compromise or settlement, if applicable, of such lawsuit or action; and (b) to employ and engage attorneys of its own choice to handle and defend the same.  If the indemnitor fails to assume the defense of such claim within ten (10) business days after receipt of notice of the claim, the indemnitee against which such claim has been asserted will (upon delivering notice to such effect to the indemnitor) have the right to undertake, at the indemnitor’s cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnitor; provided, however that such claim shall not be compromised or settled without the written consent of the indemnitor.  In the event the indemnitee assumes the defense of the claim, the indemnitee will keep the indemnitor reasonably informed of the progress of any such defense, compromise or settlement.  Notwithstanding the foregoing, the indemnitee shall be entitled to conduct its own defense at the cost and expense of the indemnitor if the indemnitee establishes that the conduct of its defense by the indemnitor would reasonably be likely to prejudice materially the indemnitee due to a conflict of interest between the indemnitee and the indemnitor; and provided further that in any event, the indemnitee may participate in such defense at its own expense.
(c)    ‎Relationship to Insurance.  The parties’ rights and liabilities hereunder are for the benefit of the indemnified parties, their heirs and their legal representatives, and are not intended to relieve a primary insurer of its coverage obligations.
15.    Export Restrictions.  Licensee shall not export, re-export, or provide access in any manner to the Software to any country, person, or entity subject to United States export restrictions or export restrictions of any country, or use the Software in any manner prohibited by the United States export laws, restrictions, or regulations, or the export laws, restrictions, or regulations of any country.
16.    General
16.1    Entire Agreement. This Agreement, together with its exhibits and any other documents incorporated herein by reference, contains the full understanding of the parties with respect to the subject matter hereof and, except as otherwise expressly provided herein, supersedes and replaces all prior understandings and writings related to such subject matter.  
16.2    Amendment. Any amendment to this Agreement must be in writing and signed by both parties.
16.3    Waiver.  No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the waiving party. Except as otherwise set forth in this Agreement, no failure or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16.4    Equitable Remedies.  The parties agree that any material breach of this Agreement by either party or its directors, officers, employees, affiliates, agents, advisers, attorneys, accountants, consultants, bankers, or other representatives may cause immediate and irreparable harm, for which monetary damages would be inadequate or difficult to ascertain.  The parties therefore agree that, upon the existence of any such breach or threatened breach, the non-breaching party may immediately seek a temporary restraining order or other appropriate form of equitable relief, without posting a bond or other form of security.  This paragraph will not limit either party’s rights to obtain monetary damages in addition to or as substitution for such equitable relief.
16.5    Governing Law; Venue.  This Agreement and all matters related thereto will be construed and interpreted under and governed by the laws of the State of Washington and the federal laws of the United States of America, in each case excluding their conflicts of laws provisions, and not under the United Nations Convention on Contracts for the International Sales of Goods.  Any dispute arising out of or related to this Agreement (including any agreements or documents incorporated herein by reference), or the breach thereof shall be brought in the state or federal courts sitting in King County, Washington, and the parties hereby waive any claim or defense that such forum is not convenient or proper.  Each party hereby agrees that any such court shall have personal jurisdiction over it and consents to service of process in any manner authorized by Washington law.
16.6    Attorneys’ Fees. In the event that any action, suit, arbitration, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
16.7    Assignment.  Neither party may assign any of its rights and/or obligations hereunder, in whole or in part, including by operation of law, to any third party, without the prior written consent of the other party which shall not be unreasonably withheld, and any attempt to assign any of the rights, duties or obligations of this Agreement without such consent is void.  Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement [to an Affiliate] or purchaser of all or substantially all of the assets of such party or the surviving entity in a merger, reorganization, or other business combination involving such party, provided that notice of such assignment is given in advance to the non-assigning party and the surviving or acquiring company has agreed in writing to be bound by the terms of this Agreement.  Subject to the foregoing limitations, this Agreement shall inure to the benefit of and be binding upon the parties, their successors and permitted assigns.
16.8    Notices.  Notice of breach of or default under this Agreement, notice of early termination, and notice provided pursuant to Section 16 (Indemnification) must be provided in writing and delivered by hand, by certified or registered mail, or by nationally or internationally recognized courier.  Any other notices permitted or required under this Agreement may be delivered by any of the foregoing methods or by email.  Notice shall be deemed given: when received, if delivered by email, hand, or nationally or internationally recognized courier; or three (3) business days after the date mailed by certified or registered mail.  Notice must be addressed to the party to be notified at the address or email address set forth below its signature hereto, or at such other address or email address as such party may designate by advance written notice to the other party.
16.9    Remedies Cumulative.  Except as otherwise provided in this Agreement, all remedies provided for in this Agreement will be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise. 
16.10    Severability.  The invalidity or unenforceability of any term of this Agreement in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms or the validity or enforceability of such term in any other situation or in any other jurisdiction.  If a final judgment declares any term hereof to be invalid or unenforceable, the court making the determination shall have the power to limit the term, to delete specific words or phrases, or to replace it with a term that is valid and enforceable and that comes closest to expressing the intention of replaced term, and this Agreement shall be enforceable as so modified.  In the event that such court declines to modify such provisions, then the parties will in good faith negotiate a modification to the provision to the minimum extent necessary to render it valid and enforceable in conformity with the parties’ intent as manifested herein.  
16.11    Counterparts; Electronic Transmission. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
16.12    Interpretation.  The headings used in this Agreement shall not be considered in the interpretation of this Agreement.  For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole, including any exhibits or documents incorporated herein by reference. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
16.13    No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right.
(Signatures follow)
 
    
Exhibit A to Software License Agreement

Software   cytoqc R package. 
Permitted Purpose     Academic research
Restrictions Non-academic or commercial use, including, but not limited to development of derivative works for commercial purposes including consulting is not permitted under this license.
Source Code Rights    Licensee does have the right to access the Software in source code form
Territory    Worldwide
Quantitative Limitations    None
Sublicensing    Sublicensing is not permitted under this Agreement
Additional Restrictions    Derviative works must be free, open source, and non-commercial, academic, research only. Commercial and internal business use is not permitted.
License Commencement Date    The date the Software is made available to Licensee 
Term   1 years, beginning on the License Commencement Date set forth above
Modification Rights     Licensee may develop bug fixes, security patches, and otherwise modify and create derivative works of the Software (“Licensee Improvements”).  Licensee shall be the sole and exclusive owner of such Licensee Improvements, excluding any portions of the Software embodied therein.  For clarity, Fred Hutch shall remain the sole and exclusive owner of the Software that such Licensee Improvements are based on.
Licensee grants to Fred Hutch a non-exclusive, perpetual, irrevocable, fully paid, royalty-free, transferable, sublicensable through multiple tiers, worldwide right and license to use, reproduce, display, perform, distribute, publish, modify, and create derivative works of any such Licensee Improvements.  Licensee shall promptly disclose any Licensee Improvements to Fred Hutch in source code form.