Proscia Pathology Cloud End User Agreement

In consideration of the obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to the Terms and Conditions set forth herein.

INTRODUCTION

1. The User and Licensor, identified above, agree that User will use the Licensor Service under the terms of this Service User Agreement ("Agreement"). As used in this Agreement, the term "Service" refers to the service as described on Schedule A hereto. Note that the Service can be offered by the Licensor in two versions: “free-tier” and “enterprise”. Both versions are included under the term “Service”. Any differences in policy between the two versions are explicitly described in the body of this Agreement. By accepting the terms of this Agreement, the User accepts the policies regarding the version of the Service in use by the User, unless otherwise expressed and agreed upon by both the Licensor and the User

LICENSE

2. Subject to the terms of this Agreement, Licensor grants User a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to remotely access, view and use the Licensor web portal included in the Service. User shall not (and shall not allow any third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of or improvements to the Service or the software available via such web portal, (ii) reverse engineer, decompile or disassemble or otherwise attempt to discover the source code of such software or determine how such Service is provided, (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Service, (iv) remove any proprietary or confidentiality notices or labels associated with the Service, or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the web portal or the delivery of the Service.

3. User shall not: (i) use the Service in any manner that violates any applicable law or rights of third parties, (ii) access, tamper with or use non-public areas of the Service or shared areas of the Service to which User has not been invited, (iii) interfere with or disrupt any user, host or network, or (iv) access or search the Service by any means other than Licensor’s publicly supported interfaces (e.g., scraping).

4. User is responsible for providing all installation and equipment, other software, facilities, and data necessary for its use, evaluation and testing contemplated under this Agreement at no charge to Licensor (“User’s Equipment”). User shall ensure that User’s Equipment meets the minimum system requirements for the Service set forth in the Service documentation.

5. User acknowledges and agrees that (i) Licensor is not obligated to make the Service available as a standard Licensor service; (ii) Licensor’s future plans concerning the Service are subject to change at any time without notice; (iii) Licensor shall have no obligations to execute such plans or, except as otherwise expressly provided herein, to provide the Service to User; and (iv) Licensor shall have no liability as a result of any such change.

CONFIDENTIAL INFORMATION

6. User and Licensor agree to maintain the confidentiality of any confidential or proprietary information of one party (the “disclosing party”) received by the other party (the “receiving party”) during the term of, or prior to entering into, this Agreement that the receiving party should know is considered confidential or proprietary by the disclosing party based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information (“Confidential Information”). The Licensed Software is copyrighted and shall be deemed Licensor’s Confidential Information. The Documentation is copyrighted material of Licensor. This section shall not apply to any information that is or becomes publicly available through no breach of this Agreement by the receiving party or is independently developed by the receiving party without access to or use of the Confidential Information of the disclosing party. The foregoing confidentiality obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable the other party to seek a protective order or otherwise limit such disclosure. The receiving party of any Confidential Information of the disclosing party agrees not to use the disclosing party’s Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party’s Confidential Information with no less than reasonable care. All the disclosing party’s information remains the property of the disclosing party.

7. User acknowledges that disclosure of Confidential Information could cause serious harm to Licensor and, as an essential term and condition of participating in the test, agrees not to disclose Confidential Information to any person or entity (other than Licensor) without the express prior written consent of Licensor.

8. User agrees to take all reasonable steps (including without limitation by instruction or agreement) to insure that its employees, officers, and agents or independent contractors who are permitted access to the Confidential Information fulfill User’s obligations hereunder to guard against and prevent disclosure of Confidential Information in accordance with the terms of this Agreement. User further agrees that User will provide access to the Confidential Information only to its employees, officers, agents and independent contractors who have a need-to-know such Confidential Information in order for the User to perform its obligations under this Agreement.

9. User is responsible for maintaining the confidentiality of all login and account information available to User for the use of the Service. User shall be fully responsible for any and all activities that occur under the Users’ login and/or account.

OWNERSHIP

10. User acknowledges that title to all applicable rights in patents, copyrights, trademarks, trade secrets and any other intellectual property rights in the Service and the software used by Licensor to provide the Service (the “Software”) shall remain in Licensor. User acquires no ownership of such rights or any Confidential Information from this Agreement and no right to use the Service or such Confidential Information or Software beyond the terms of this Agreement. User acquires no right to copy the Service, Software or Confidential Information, prepare derivative works or participate in development, manufacturing, marketing, and maintenance thereof.

RISKS FROM THE SERVICE

11. User understands that the Service may have errors and may produce unexpected results. USER AGREES THAT ANY USE OF OR RELIANCE UPON THE “FREE-TIER” VERSION OF THE SERVICE WILL BE ENTIRELY AT USER’S OWN RISK. User agrees to backup its data and take other appropriate measures to protect programs, data and the security of its networks and information technology. User agrees not to allow any third party to use the Service on User's hardware or otherwise and to indemnify and hold Licensor harmless from any damages or claims arising from use by any third party.

12. USER ACKNOWLEDGES AND AGREES THAT THE “FREE-TIER” SERVICE PROVIDED UNDER THIS AGREEMENT IS A RESTRICTED VERSION OF THE “ENTERPRISE” VERSION OF THE SERVICE. THE PARTIES THEREFORE ACKNOWLEDGE AND AGREE THAT Licensor IS PROVIDING THE SERVICE AS-IS AND WITHOUT ANY WARRANTIES EITHER EXPRESSED OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE PARTIES FURTHER ACKNOWLEDGE AND AGREE THAT WITH RESPECT TO SERVICE, THE PROVISIONS OF THIS AGREEMENT SUPERSEDE ANY AND ALL WARRANTY PROVISIONS AND INDEMNIFICATION PROVISIONS RELATED TO THE SERVICE, UNLESS ANY OTHER PROVISIONS ARE AGREED UPON IN ANOTHER AGREEMENT THAT THE USER MAY HAVE WITH Licensor TO THE EXTENT THAT THEY ARE INCONSISTENT WITH THE TERMS OF THIS AGREEMENT.

INFORMATION PROVIDED BY USER

13. Licensor does not want to receive and User agrees not to disclose to Licensor any information that is confidential or proprietary to User or others.

14. User agrees that the contents of all oral and written reports to Licensor and any other materials, information, ideas, concepts, and know-how provided by User (including corrections to problems in the Service and documentation) (collectively “Feedback”) become the property of Licensor and may be used by Licensor for all business purposes, without any accounting or any payment to User. Nothing in this Agreement shall prohibit or restrict Licensor from using data provided by User or otherwise gathered in relation to User’s use of the Service including, without limitation, as aggregated with other data and/or to product publicly available whitepapers, reports, and industry-wide statistics, provided that no such use shall expressly identify User as the source of such data. User hereby irrevocably assigns to Licensor all right, title and interest, including, without limitation, any and all copyright, trademark, patent, and other rights in and to any feedback provided by User or any User personnel in respect of the Service, including without limitation, any reports provided by User or User personnel as contemplated by this Agreement. Under no circumstances will Licensor become liable for any payment to User for any information that User provides, whether concerning the Service or otherwise, no matter how such information is used or exploited by Licensor or anyone else. If requested by Licensor, User agrees to execute and deliver to Licensor any documents and to take reasonable action as Licensor deems necessary, in order to evidence Licensor title to and ownership of the Service and the Confidential Information.

PUBLICITY

15. User grants Licensor the right, to be exercised in Licensor’s sole discretion, to use the facts, contents, and outcome of the User’s experiences with the Service, User’s comments, and User’s individual name, the names of User’s employees and agents participating in the test, and User’s trade names and trademarks in Licensor promotions, press releases, public relations, advertisements, and other sales and marketing activities. Such rights shall be unlimited in duration, and no compensation shall be required for Licensor exercise of such right. Additionally, this Agreement does not authorize User to use Licensor names or trademarks or the fact of the Agreement for any publicity, marketing or other activities.

TERMINATION

16. Licensor shall have the right to terminate this Agreement at any time. Upon any termination of this Agreement, User shall return to Licensor all copies of the Service documentation and all Confidential Information and, if requested by Licensor, shall so certify in writing. Notwithstanding the termination of this Agreement, Sections 9-25 hereof will survive such termination.

LIMITATION OF LIABILITY

17. IN NO EVENT SHALL LICENSOR BE LIABLE FOR LOST PROFITS OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE SERVICE, AND LICENSOR’S LIABILITY FOR ANY DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO LICENSOR UNDER THIS AGREEMENT. THE LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT SHALL APPLY REGARDLESS OF THE FORM OF ACTION (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHER ACTIONS IN TORT), AND WHETHER OR NOT LICENSOR HAS BEEN INFORMED OF OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES.

GENERAL PROVISIONS

18. No agency, partnership, joint venture, or other joint relationship is created by this Agreement. Licensor may enter into the same or similar Agreements with others. User may not assign any of its rights or delegate any of its obligations under this Agreement and any attempted assignment or delegation shall be null and void.

19. This Agreement, including any attachments hereto, constitutes the entire understanding between parties with respect to the subject matter expressed herein and may not be modified except in writing signed by both parties.

20. This Agreement shall be interpreted in accordance with the laws of the State of New Jersey without regard to its provisions concerning the applicability of the laws of other jurisdictions. Any action brought by User in respect of this Agreement shall be brought in the State of New Jersey.

21. User shall not export or re-export directly or indirectly any software made available to User (including, without limitation, software accessible through the website and features, functions and content thereon made available to User by Licensor pursuant to the Services through Licensor’s web portal), or any technical data derived there from, without first obtaining the written approval or required export license to do so in accordance with applicable law.