1. THIS END USER LICENSE AGREEMENT
(this “Agreement”) governs your access to and use of the proprietary, cloud-based software platform for computational reproducibility (the “Platform”) made available by Code Ocean, Inc., a Delaware Corporation (“Code Ocean”). “You” and its derivatives refers to an individual with credentials to access the Platform, whether provided by an entity with which you are associated (i.e., your employer or academic institution) that has a direct agreement with Code Ocean (the “Organizational Agreement”) or if you have been invited to access the Platform independently (i.e., when a colleague at an institution with an Organizational Agreement invites you to review certain work). To the extent you are an authorized user under an Organizational Agreement, the Organizational Agreement will control in the event of any conflict with this Agreement.
2. CODE OCEAN PLATFORM
- Grant. Code Ocean hereby grants you a worldwide, non-transferable, non-sublicensable, non-exclusive right during the Term (the “License”) to access and use the elements of the Platform made available to you as permitted under the Organizational Agreement or to analyze and use data sets to which you are invited in connection with the review and reproduction of scientific studies and related endeavors.
- Restrictions. Except as explicitly permitted herein, you will not, directly or indirectly, attempt to: (a) modify or create derivative works of the Platform; (b) decompile, reverse engineer, or otherwise translate any portion of the Platform into human-readable form; (c) rent, lease, share, distribute, or sell the Platform to any third party, including on a time sharing, service bureau, or other similar basis; (d) remove, alter or deface proprietary notices, labels or marks in the Platform; (e) disclose the results of testing or benchmarking of the Platform; (f) circumvent or disable the Platform’s license management or security mechanisms; or (g) use the Platform in violation of any applicable law or to violate the rights of any third party.
- Usage Information. Code Ocean owns all (a) data regarding installation, registration, and use of the Platform; and (b) data related to performance of the Platform, including response times, load averages, usage statistics, activity logs, (collectively, “Usage Information”). Usage Information is used to contribute to analytical models used by Code Ocean, to monitor and improve the Platform, and perform related services.
3. YOUR RESPONSIBILITIES
- You may not share your credentials that allow you to access the Platform (“Credentials”), must keep Credentials confidential and secure, and are responsible for all activity that occurs under your account. You must immediately inform Code Ocean of any suspected unauthorized use or access of the Platform using your Credentials. To the greatest extent allowed under law, Code Ocean explicitly disclaims all liability for any loss or damage directly arising from (a) your failure to safeguard Credentials, or (b) unauthorized use of such Credentials.
- Your Data. As between the parties, you are solely responsible for any information, including all software code, methodologies, analysis, instructions, data sets, etc., that you upload to the Platform or otherwise provide to Code Ocean under this Agreement (collectively, “Your Data”). Code Ocean expressly disclaims any liability arising from Your Data. In addition to the restrictions set forth in Section 1.2, You may not use the Platform to transmit, store, display, distribute or otherwise make Your Data available that (a) is unlawful, tortious, defamatory, vulgar, obscene, or libelous; (b) violates, or encourages any conduct that would violate, any applicable law or regulation; (c) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; or (d) is violent or threatening, or promotes violence or actions that are threatening to any other person.
- Platform. Except for the license granted in Section 1.1, Code Ocean or its licensors retain all right, title and interest in the Platform (including all intellectual property rights therein), the Usage Information, and any modifications and derivative works thereof.
- Your Data. As between You and Code Ocean, You retain all right, title, and interest in Your Data and any output generated by Your use of the Platform that is specific to such data. You grant Code Ocean a worldwide, royalty-free, sub-licensable, nonexclusive license during the Term to use Your Data solely as required in connection with the Platform and to perform its obligations hereunder.
- Feedback. You hereby grant Code Ocean a worldwide, perpetual, irrevocable, royalty-free right and license to use and exploit any ideas, suggestions, comments, recommendations, enhancement requests or other input provided by you about the Platform to Code Ocean.
- Open Source Software. Certain elements of the Platform may be subject to “open source” or “free software licenses” (“OSS”) owned by third parties. OSS is not licensed under Section 1. Instead, each item of OSS is licensed under the terms of the end-user license that accompanies such OSS. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of the applicable end-user license for such OSS.
- Confidential Information. Unless otherwise specified within the Platform, you will treat all content available on the Platform as confidential and not disclose it except to others who you know have the right to access such content or who have been approved in writing from the owner of such content for disclosure. In maintaining the confidentiality of such information, you will exercise the same degree of care that you exercise with your own confidential information of a similar nature, and in no event less than a reasonable degree of care. The Platform and Usage Information will be confidential information of Code Ocean.
- Exceptions. The terms of Section 5.1 will not apply to information that you can demonstrate (a) was generally known to the public other than as a result of breach of your obligations hereunder; (b) was rightfully known to you prior to the date of disclosure free of any obligations of confidentiality; or (c) was independently developed by you without use of or reference to information on the Platform.
6. WARRANTY DISCLAIMERS
- Platform As Is. CODE OCEAN PROVIDES THE PLATFORM AND ANY OUTPUT “AS IS” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND.
- General Disclaimer. CODE OCEAN EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT) OR ARISING FROM A COURSE OF DEALING. IN ADDITION, CODE OCEAN DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY FAILS OF ITS ESSENTIAL PURPOSE AND, TO THE EXTENT THIS DISCLAIMER IS BARRED BY APPLICABLE LAW, IT WILL BE INTERPRETED TO PROVIDE ONLY THE WARRANTIES REQUIRED BY LAW.
7. LIMITATION OF LIABILITY
- Disclaimer; Limits. CODE OCEAN WILL HAVE NO LIABILITY TO YOU WITH RESPECT TO CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, MULTIPLE, PUNITIVE OR INDIRECT DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES..[MB1]
- Governing Law; Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of New York without giving effect to any conflicts of laws principles that would require a different result. You irrevocably consent to the jurisdiction of the state and federal courts located in New York County, New York for any action or proceeding arising out of or relating to this Agreement, and expressly waive any objection you may have to such jurisdiction or venue. Any claim related to an individual who is an authorized user under an Organizational Agreement will be governed by such agreement.
- Entire Agreement; Amendment. This Agreement (and, to the extent applicable, the Organizational Agreement) is the entire agreement between the parties with respect to its subject matter. No alterations or modifications of this Agreement will be valid unless made in writing and signed by the parties.