License Agreement: Label-free Morphological Analysis Software CellActivision

IMPORTANT - PLEASE READ CAREFULLY BEFORE INSTALLING OR USING:
THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND YOKOGAWA ELECTRIC CORPORATION AND/OR ITS SUBSIDIARIES (COLLECTIVELY, “YOKOGAWA”) FOR YOU TO INSTALL OR USE YOKOGAWA CELLACTIVISION SOFTWARE PRODUCT. BY INSTALLING OR OTHERWISE USING THE SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT INSTALL NOR USE THE SOFTWARE PRODUCT AND PROMPTLY RETURN IT TO THE PLACE OF PURCHASE FOR A REFUND, IF APPLICABLE. SHOULD THERE BE ANY DISCREPANCY BETWEEN THIS AGREEMENT AND ANY OTHER WRITTEN AGREEMENT MADE BETWEEN YOU AND YOKOGAWA, THE LATTER SHALL PREVAIL.

1. Scope

1.1 This Agreement applies to the CellActivision software products (the “Software Product”). The Software Product consists of: a) Standard Software Product: The software products listed in "General Specifications" of Yokogawa. b) Customized Software Product: The software products made by Yokogawa based on individually agreed specifications, which will be used with or in addition to the function of the Standard Software Product. 1.2 The Software Product includes, without limitation, computer programs, key codes, manuals and other associated documents, databases, fonts, input data, and any images, photographs, animations, video, voice, music, text, and applets (software linked to text and icons) embedded in the software. 1.3 Unless otherwise provided by Yokogawa, this Agreement applies to the updates and upgrades of the Software Product.

2. Grant of License

2.1 Subject to the terms and conditions of this Agreement, Yokogawa hereby grants to you a non-exclusive and non-transferable right to use the Software Product on the hardware specified by Yokogawa or if not specified, on a single hardware and solely for your internal operation use, in consideration of full payment by you to Yokogawa of the license fee separately agreed upon. Use of the Software Product shall be subject to the terms and conditions of this Agreement as well as those set forth in General Specifications.

2.2 Unless otherwise agreed or provided by Yokogawa in writing, the following acts are prohibited:
a) to reproduce the Software Product;
b) to sell, lease, distribute, transfer, pledge, sublicense, make available via the network or otherwise convey the Software Product or the license granted herein to any other person or entity;
c) to use the Software Product on any unauthorized hardware via the network;
d) to cause, permit or attempt to dump, disassemble, decompile, reverse-engineer, or otherwise translate or reproduce the Software Product into source code or other human readable format, or to revise or translate the Software Product into other language and change it to other formats than that in which Yokogawa provided;
e) to cause, permit or attempt to remove any copy protection used or provided in the Software Product; or
f) to remove any copyright notice, trademark notice, logo or other proprietary notices or identification shown in the Software Product.

2.3 Any and all technology, algorithms, know-how and process contained in the Software Product are the property or trade secret of Yokogawa or licensors to Yokogawa. All rights that are not expressly granted to you herein are retained by Yokogawa or licensors and none of such rights will be transferred to you, including, without limitation, (i) ownership of and all the rights in the Software Product, (ii) the right to discontinue developing, producing, licensing or distributing the Software Product, and (iii) the right to modify, replace or add to the Software Product in its sole discretion at any time. 

2.4 You agree to maintain the aforementioned property and trade secret of Yokogawa or licensors and key codes in strict confidence, not to disclose it to any party other than your employees, officers, directors or similar staff who have a legitimate need to know to use the Software Product and agreed in writing to abide by the obligations hereunder.

2.5 Upon expiration or termination of this Agreement, the Software Product and its copies, including extracts, shall be returned to Yokogawa and any copies retained in your hardware or any other media shall be deleted irretrievably. If you dispose of media in which the Software Product or its copy is stored, the contents shall be irretrievably deleted.

2.6 The Software Product may contain software which Yokogawa is granted a right to sublicense or distribute by third party suppliers ("Third Party Software"). If suppliers of the Third Party Software (“Supplier”) provide special terms and conditions for the Third Party Software which differ from this Agreement, the special terms and conditions separately provided by Yokogawa shall prevail over this Agreement. Some software may be licensed to you directly by Supplier.

2.7 The Software Product contains open source software (“OSS”), for which the special terms and conditions provided in Clause 13 shall take precedence over this Agreement.

3. Restrictions on Application

3.1 Unless otherwise agreed in writing between you and Yokogawa, the Software Product is not intended, designed, produced or licensed for actual use in patient care, diagnosis or treatment, aircraft operation or control, ship navigation or marine equipment control, or ground facility or device for support of the aforesaid operation or control, nor for planning, construction, maintenance or operation of any nuclear related facility.

3.2 If the Software Product is used for the abovementioned purposes, neither Yokogawa nor Supplier assumes liability for any claim or damage arising from the said use and you shall indemnify and hold Yokogawa, Supplier, their affiliates, subcontractors, officers, directors, employees and agents harmless from any liability or damage whatsoever, including any court costs and attorney's fees, arising out of or related to the said use.

4. Warranty

4.1 THE SOFTWARE PRODUCT IS PROVIDED "AS IS". TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOKOGAWA DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. YOKOGAWA DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE PRODUCT WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, THAT THE SOFTWARE PRODUCT WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE PRODUCT WILL BE CORRECTED, THAT THE SOFTWARE PRODUCT HAS NO INCONSISTENCY OR INTERFERENCE WITH OTHER SOFTWARE, THAT THE SOFTWARE PRODUCT OR THE RESULTS ARISING THEREFROM IS PRECISE, RELIABLE OR UP-TO-DATE, OR THAT THE SOFTWARE PRODUCT IS COMPATIBLE WITH ANY PARTICULAR SOFTWARE REQUIRED TO RUN THE SOFTWARE PRODUCT. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU.

4.2 If Yokogawa engineer or other engineer attends for repair, replacement or implementing a workaround at the site at your request, you will be charged for the site service fee. If Yokogawa deems necessary, you are required to initialize or stop the operation of the system, facility or equipment in or on which the Software Product is installed.

4.3 NOTWITHSTANDING THE FOREGOING, ANY WARRANTY FOR THE THIRD PARTY SOFTWARE AND/OR OSS IS SUBJECT TO THE SPECIAL TERMS AND CONDITIONS SET FORTH IN CLAUSE 13 OR THOSE SEPARATELY PROVIDED WITH RESPECT TO SUCH THIRD PARTY SOFTWARE.

5. Technical Support

Yokogawa will provide you with technical information and usage instruction about each analytical function of the Software Product through user’s manual and written tutorials. Yokogawa also offer technical support related to such technical information and usage instruction by email or other means agreed by Yokogawa, unless separately agreed in writing between you and Yokogawa.

6. Infringement

6.1 If you are warned or receive a claim by a third party that the Software Product in its original form infringes any third party’s patent (which is issued at the time of delivery of the Software Product), trade mark, copyright or other intellectual property rights (”Claim”), you shall promptly notify Yokogawa thereof in writing.

6.2 If the infringement is attributable to Yokogawa, Yokogawa will defend you from the Claim at Yokogawa’s expense and indemnify you from the damages finally granted by the court or otherwise agreed by Yokogawa out of court. The foregoing obligation and indemnity of Yokogawa shall be subject to that i) you promptly notify Yokogawa of the Claim in writing as provided above, ii) you grant to Yokogawa and its designees the full authority to control the defense and settlement of such Claim and iii) you give every and all necessary information and assistance to Yokogawa upon Yokogawa’s request.

6.3 If Yokogawa believes that a Claim may be made or threatened, Yokogawa may, at its option and its expense, either a) procure for you the right to continue using the Software Product, b) replace the Software Product with other software product to prevent infringement, c) modify the Software Product, in whole or in part, so that it become non-infringing, or d) if Yokogawa believes that a) through c) are not practicable, refund you the paid-up amount of the book value of the Software Product as depreciated.

6.4 Notwithstanding the foregoing, Yokogawa shall have no obligation nor liability for, and you shall defend and indemnify Yokogawa and its suppliers from, the Claim, if the infringement is arising from a) modification of the Software Product made by a person other than Yokogawa, b) combination of the Software Product with hardware or software not furnished by Yokogawa, c) design or instruction provided by or on behalf of you, d) not complying with Yokogawa’s suggestion, or e) any other causes not attributable to Yokogawa.

6.5 This section states the entire liability of Yokogawa and its suppliers and the sole remedy of you with respect to any claim of infringement of a third party’s intellectual property rights. Notwithstanding anything to the contrary stated herein, with respect to the claims arising from or related to the Third Party Software or OSS, the special terms and conditions set forth in Clause 13 or those separately provided for such Third Party Software shall prevail.

7. Limitation of Liability

EXCEPT TO THE EXTENT THAT LIABILITY MAY NOT LAWFULLY BE EXCLUDED IN CONTRACT, YOKOGAWA AND SUPPLIERS SHALL NOT BE LIABLE TO ANY PERSON OR LEGAL ENTITY FOR LOSS OR DAMAGE, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR OTHER SIMILAR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF MATERIALS OR PRODUCTS, LOSS OR DESTRUCTION OF DATA, LOSS OF AVAILABILITY AND THE LIKE, ARISING OUT OF THE USE OR INABILITY TO USE OF THE SOFTWARE PRODUCTS, OR ARISING OUT OF ITS GENERATED APPLICATIONS OR DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED IN WARRANTY (EXPRESS OR IMPLIED), CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE GROUNDS. IN NO EVENT YOKOGAWA AND SUPPLIER’S AGGREGATE LIABILITY FOR ANY CAUSE OF ACTION WHATSOEVER (INCLUDING LIABILITY UNDER CLAUSE 6) SHALL EXCEED THE DEPRECIATED VALUE OF THE LICENSE FEE PAID TO YOKOGAWA FOR THE USE OF THE CONCERNED PART OF THE SOFTWARE PRODUCT. 

IF THE PRODUCT DELIVERED BY YOKOGAWA IS ALTERED, MODIFIED OR COMBINED WITH OTHER SOFTWARE OR IS OTHERWISE MADE DIFFERENT FROM YOKOGAWA’S GENERAL SPECIFICATIONS, BASIC SPECIFICATIONS, FUNCTIONAL SPECIFICATIONS OR MANUALS WITHOUT YOKOGAWA’S PRIOR WRITTEN CONSENT, YOKOGAWA SHALL BE EXEMPTED FROM ITS OBLIGATIONS AND LIABILITIES UNDER THIS AGREEMENT OR LAW.

8. Assignment

You shall not assign its rights or obligations under this Agreement without prior written consent of Yokogawa. If you novate or assign this Agreement and the Software Product with Yokogawa’s consent, you shall transfer all copies and whole part of the Software Product to the assignee and shall delete any and all copy of the Software Product in possession irretrievably. This Agreement shall inure to the benefit of and shall be binding on the successors of the parties.

9. Export Control

You agree to comply with the export control and related laws, regulations and orders of Japan, the United States of America, and any other applicable countries and, if you export or reexport the Software Product, to obtain export/import permit and take all necessary procedures under your own responsibility and at your own expense.

10. Audit; Withholding

10.1 Yokogawa shall have the right to access and audit your facilities and any of your records in a commercially reasonable manner, including data stored on computers, in relation to the use of the Software Product as may be reasonably necessary in Yokogawa’s reasonable opinion to verify that the requirements of this Agreement are being met.

10.2 Even after license being granted under this Agreement, should there be any change in circumstances or environment of use which was not foreseen at the time of delivery and, in Yokogawa’s reasonable opinion, is not appropriate for using the Software Product, or if Yokogawa otherwise reasonably believes it is too inappropriate for you to continue using the Software Product, Yokogawa may suspend or withhold the license provided hereunder.

11. Termination

Yokogawa shall have the right to terminate this Agreement with immediate effect upon notice to you, if you or end users breach any of the terms and conditions hereof. Upon termination of this Agreement, you shall, and make end users, promptly cease using the Software Product and, in accordance with sub-clause 2.5, return or irretrievably delete all copies of the Software Product, certifying the same in writing. In this case the license fee paid by you for the Software Product shall not be refunded. Clauses 2.4 and 2.5, 6, 7, 12 and 13 shall survive any termination of this Agreement.

12. Governing Law; Disputes

This Agreement shall be governed by and construed in accordance with the laws of Japan. If you are a Japanese individual or entity, all disputes, controversies or differences which may arise between the parties hereto, out of, in relation to or in connection with this Agreement (“Dispute”) shall be brought exclusively in the Tokyo District Court (The Main Court) in Japan. If you are not a Japanese individual or entity, any Dispute shall be finally settled by arbitration in Tokyo, Japan in accordance with the Commercial Arbitration Rules of the Japan Commercial Arbitration Association. All proceedings in arbitration shall be conducted in the English language, unless otherwise agreed. The award of arbitration shall be final and binding upon both parties, however, each party may make an application to any court having jurisdiction for judgment to be entered on the award and/or for enforcement of the award.

13. Open Source License 

13.1 The Software Product uses or contains OSS listed below. Notwithstanding anything to the contrary stated hereunder, installation or use of OSS shall be subject to the following license terms. Some of OSS may, in its accompanying files, specify different version of the license terms and/or additional terms, which, if any, shall take precedence over the following license terms:

*LibSVM, License Agreement For Open Source Company Vision Library (3-Clause BSD License) 
[http://www.csie.ntu.edu.tw/~cjlin/libsvm/COPYRIGHT]

The text of the above license terms at the time of execution of this Agreement is provided below and available in the above website.

13.2 Each OSS shall be provided on an “AS IS” basis without warranty of any kind, and any express or implied warranties, including without limitation, any warranties of title, non-infringement, merchantability or fitness for a particular purpose are disclaimed.

13.3 In addition to and without limiting the generality of the limitation of liability provisions set forth in open source licenses or in the other clauses of this Agreement, unless otherwise required by applicable law, in no event shall Yokogawa, its affiliates and suppliers be liable, in relation to OSS, for any claim, loss or damage based upon or related to, a third party claim, actual or alleged infringement, malfunctions or loss of data, or any direct, indirect, incidental, consequential, special, exemplary or punitive damages, whether arising in tort, contract, or otherwise, even if Yokogawa, its affiliates or suppliers have been advised of the possibility of such claims or damages.


License Agreement for Open Source Computer Vision Library (3-Clause BSD License)

By downloading, copying, installing or using the software you agree to this license. If you do not agree to this license, do not download, install, copy or use the software.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

  • Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
  • Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
  • Neither the names of the copyright holders nor the names of the contributors may be used to endorse or promote products derived from this software without specific prior written permission.

This software is provided by the copyright holders and contributors “as is” and any express or implied warranties, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose are disclaimed. In no event shall copyright holders or contributors be liable for any direct, indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the use of this software, even if advised of the possibility of such damage.


14. Miscellaneous

14.1 This Agreement supersedes all prior oral and written understandings, representations and discussions between the parties concerning the subject matter hereof to the extent such understandings, representations and discussions should be discrepant or inconsistent with this Agreement.

14.2 If any part of this Agreement is found void or unenforceable, it shall not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms and conditions. The parties hereby agree to attempt to substitute for such invalid or unenforceable provision a valid or enforceable provision that achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.

14.3 Failure by either party to insist on performance of this Agreement or to exercise a right when entitled does not prevent such party from doing so at a later time, either in relation to that default or any subsequent one.

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