User License Agreement

OmniTier, Inc.

UNIFIED USER LICENSE AGREEMENT

IMPORTANT: PLEASE READ THIS UNIFIED USER LICENSE AGREEMENT (“UULA” or “Agreement”) CAREFULLY. ACCESSING OR USING ANY COMPONENT OF LICENSED MATERIALS (DEFINED BELOW) OR CLICKING THE “ACCEPT” OR SIMILAR BUTTON, IF SUCH A BUTTON IS AVAILABLE, CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS USER AGREEMENT GOVERN YOUR RIGHTS TO THE LICENSED MATERIALS AND SERVICES TO BE SUPPLIED BY OMNITIER HEREUNDER.

YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS USER AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH OMNITIER, (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS USER AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY OR INSTITUTION NAMED AS THE CUSTOMER ON THE ORDERING DOCUMENT (DEFINED BELOW), AND TO BIND THAT COMPANY OR INSTITUTION TO THIS USER AGREEMENT. THE TERM “CUSTOMER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE CUSTOMER ON THE ORDERING DOCUMENT AND (4) YOU AGREE THAT YOUR USE WILL BE FOR RESEARCH PURPOSES ONLY. IF YOU DO NOT AGREE TO BE BOUND BY THIS USER AGREEMENT, YOU MAY NOT ACCESS OR USE ANY COMPONENT OF LICENSED MATERIALS.

THIS USER AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

PLEASE NOTE THAT THE TERMS OF THIS USER AGREEMENT ARE SUBJECT TO CHANGE BY OMNITIER IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, OMNITIER will make a new copy of the User Agreement available at the OMNITIER website or on the Licensed Device. OMNITIER will also update the “Last Updated” date at the bottom of this User Agreement. OMNITIER will request that you assent to the updated terms, provided that if you do not assent to the updated terms, then you may decline and discontinue all use of and access to the Licensed Materials. Otherwise, your continued use of any component of the Licensed Materials constitutes your acceptance of such change(s).

IF CUSTOMER IS DEEMED TO HAVE ORDERED LICENSED MATERIALS OR OTHER SERVICES (AS RELEVANT), OMNITIER’S ACCEPTANCE IS EXPRESSLY CONDITIONAL ON ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY THE CUSTOMER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OR ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF OMNITIER SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY.

NOTWITHSTANDING ANYTHING ELSE STATED HEREIN, IF CUSTOMER AND OMNITIER HAVE EXECUTED A WRITTEN AGREEMENT IN CONNECTION WITH CUSTOMER’S ACCESS TO THE LICENSED MATERIALS OR COMPONENT THEREOF AND SUCH AGREEMENT DOES NOT REFERENCE THIS AGREEMENT (“SIGNED AGREEMENT”), THEN THE TERMS OF THE SIGNED AGREEMENT SHALL GOVERN AND CONTROL WITH RESPECT TO THE SAME.  

OMNITIER SUGGESTS THAT YOU RETAIN A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE.

1. DEFINITIONS.

As used throughout this Agreement, the following terms shall have the meanings as set forth below:

1.1 “Add-on” means any additional software feature or executable not required for core function of, but enables additional functionality to a System.

1.2 “API” means any published application programming interface or integration modules for the Software, or Content that is provided or otherwise made available to Customer by OmniTier, if any.

1.3 “Authorized Reseller” shall mean any authorized reseller of OmniTier products who validly sells Customer OmniTier offerings subject to the terms and conditions of this Agreement.

1.4 “Content” means any information or content wholly owned by and made available by OmniTier directly or in connection with Customer’s access to or use of the API, Software or System Offering, including without limitation, OmniTier’s proprietary data, diagrams, graphs and analysis reports.

1.5 “Customer Biological Data” means all data that Customer or Customer Representative uploads to the Software, API or System offering or causes or requests that OmniTier upload into the Software, API or System Offering during the term of this Agreement, including without limitation any Variant Samples, gene lists, custom variant lists or other data.

1.6 “Customer Representative” shall mean any employee, agent, officer or contractor of Customer who accesses Licensed Materials (or any component thereof) for use on behalf of Customer.

1.7 “Documentation” means the written, audio, visual, and/or other user materials and documentation that OmniTier makes available for the API, Software, System, or Content. Open Source Software, Third Party Software, and all copies of the foregoing.

1.8 “Hardware” means computer hardware, related devices and other accessories including all embedded components (excluding Software).

1.9 “License” means the Standard End User License granted herein by OmniTier to Customer as follows:

(a) "Consumption License" means a license as indicated in the applicable Ordering Documents that when granted to Customer pursuant to the terms set forth in this Agreement enables the Customer to access and use the Licensed Materials in the manner defined as the Standard End User License for a set quantity of usage as identified in the Ordering Document and expires thereafter.

(b) "Date-based License" means a license as indicated in the applicable Ordering Documents that when granted to Customer pursuant to the terms set forth in this Agreement enables the Customer to access and use the Licensed Materials in the manner identified in the license section for the period of time identified by a start and end date in the Ordering Documents.

(c) “Perpetual License” means a license that gives the customer access to the Licensed Materials available at time of purchase, without a term end date.

(d) "Trial License" means a license as indicated in the applicable Ordering Documents that when granted to Customer pursuant to the terms set forth in this Agreement enables the Customer to access and use the Licensed Materials in the manner identified in the license section for the period of time identified in the Ordering Documents.

1.10 “Licensed Materials” means, collectively, the System, OmniTier Software, Content, Documentation, API, data utilities and any updates or upgrades of any of the foregoing made available by OmniTier to Customer or Customer Representatives in connection with this Agreement, and each component thereof.

1.11 “Maintenance” means a license issued in conjunction with and after a Perpetual License that grants access to Software updates issued during the period defined in the Ordering Documents.

1.12 “Models” means Results obtained based on Content and Customer Biological Data to derive a mathematical procedure for classification or prediction of data.

1.13 “OmniTier Software” means the code version of the software that is provided or made available to Customer pursuant to Ordering Documents as well as any corrections, enhancements, and upgrades to such software that are made available to Customer from time to time, and all copies of the foregoing, with the exclusion of Open Source Software and Third Party Software.

1.14 “Open Source Software” means software components provided by OmniTier that are subject to various open source software license terms as may be described in the software’s Documentation, within the provided source code of the software, or in an attribution or licensing file provided to Customer with the software.

1.15 “Ordering Document(s)” shall mean (a) an OmniTier sales order or other ordering document mutually approved and executed by the parties that includes certain commercial terms relating to the access to and use of the Licensed Materials, including pricing terms, geography, any associated services purchased, and/or the period of access (as relevant) and limitations or restrictions related to Customer’s access or use of the Licensed Materials; or (b) if in connection with any free access granted for an early access, beta, evaluation, promotional or other program, then email or other correspondence from OmniTier personnel describing the terms and duration of such early access, beta, evaluation, promotional or other program; or (c) an Authorized Reseller invoice or other ordering document agreed to between Customer and Authorized Reseller based on a valid OmniTier quote to the Authorized Reseller, where the access and use rights are indirectly purchased from OmniTier through the Authorized Reseller; or (d) an Ordering Document mutually approved by the parties that is attached hereto as an exhibit (if any). Multiple Ordering Documents may apply to this Agreement, provided that unless expressly stated otherwise in a mutually agreed upon Ordering Document, the terms specified in an Ordering Document shall be relevant only to the specific items listed on the relevant Ordering Document.

1.16 “Results” means the outputs generated by the API, Software or System based on analysis enabled by Licensed Materials, and/or Customer Biological Data.

1.17 “Report” means recorded Results obtained by use of the System.

1.18 “Software” means the combination of OmniTier Software, Open Source Software, and Third Party Software delivered by OmniTier under an applicable Order.

1.19 “System” means the Hardware and the Software.

1.20 “Third Party Software” means proprietary software delivered by OmniTier as part of the Software that is licensed by and subject to separate license terms provided by a third party.

1.21 “Variant Analysis” means one or more analyses (as specified in the Documentation and/or applicable Ordering Document) run in the System.

1.22 “Variant Sample” means a variant sample for an individual, patient or proband.

2. RIGHTS OF ACCESS AND USE

Customer’s use of and access to Licensed Materials depends on Customer’s license type. Multiple licenses may apply as indicated on the Ordering Documents:

2.1 Standard End User License. If Customer has paid fees to use the Licensed Materials subject to the terms and conditions of this Agreement, including the restrictions set forth in Section 3, OmniTier grants to Customer a limited, nonexclusive, nontransferable license to the following, solely on behalf of and for the benefit of Customer for Customer’s internal research and internal business purposes:

(a) to access and use Licensed Materials in accordance with Documentation supplied by OmniTier;

(b) to generate Results;

(c) to use, review and analyze Content and Results in accordance with Documentation supplied by OmniTier;

(d) to share Results through Reports, the Software or System as permitted by standard functionality enabled by Software or System and in accordance with Documentation, subject to the restrictions identified in section 3 (Customer Restrictions, Obligations, and Limitations) below;

2.2 Trial License Special Provisions. If OmniTier has granted Customer access rights based on an evaluation or trial, or early access, beta testing, promotion or other similar program, as identified in the relevant Ordering Document or communication between OmniTier and Customer, then the following shall also apply. Notwithstanding any contrary terms specified in any other sections of this Agreement: (a) the license and or access rights are limited to the term permitted by OmniTier; (B) the Licensed Materials are provided “As Is” without any warranty of any kind; (C) Customer shall not be entitled to indemnification by OmniTier and/or any support services; (D) OmniTier may terminate access or use rights in its own discretion at any time without prior notice to Customer; and (E) all additional restrictions and limitations identified in the Ordering Documents shall apply notwithstanding anything else herein;

2.3 Use of API. If OmniTier offers an API to Customer, then subject to Customer’s compliance with the terms of this Agreement, OmniTier grants Customer a limited, nonexclusive, non- transferable, non-sublicensable license to use the API solely for the purposes of: (i) creating sanctioned and custom interfaces and links from an internal Customer application to the Software or System and (ii) accessing the Software or System via such links to upload and analyze relevant Customer Biological Data, (iii) generating, using, viewing, analyzing, exporting and saving Results through these custom interfaces as permitted by the Documentation and Ordering Documents. OmniTier reserves the right to modify any API.

2.4 Open Software/Third Party Software. This Agreement does not apply to any other software components identified as subject to an open source license in the relevant notice, license and/or copyright files included with the Software (collectively the "Open Source Software") Furthermore, this Agreement does not apply to any other software for which OmniTier is only granted a derived right to use ("Third Party Software"). Open Source Software and Third Party Software may be supplied in the same electronic file transmission as the Software but are separate and distinct programs. If and insofar OmniTier provides Third Party Software, the license terms for such Third Party Software shall additionally apply and prevail. If Open Source Software is provided, the license terms for such Open Source Software shall additionally apply and prevail. OmniTier shall provide you with the corresponding source code of relevant Open Source Software, if the respective license terms of the Open Source Software include such obligation. OmniTier shall inform if the Software contains Third Party Software and/or Open Software and make available the corresponding license terms on request.

2.5 Reservation of Rights. Except as expressly set forth in this Section, OmniTier grants Customer no licenses of any kind to use or access the Licensed Materials, whether by implication, estoppel, or otherwise. All rights in and to Licensed Materials not expressly granted to Customer in this Agreement are expressly reserved for OmniTier and its suppliers.

3. CUSTOMER RESTRICTIONS, OBLIGATIONS AND LIMITATIONS.

3.1 General Restrictions. Except as expressly permitted in this Agreement, Customer and Customer Representatives agree not to:

(a) access or use the Licensed Materials in any way other than expressly permitted herein;

(b) access or use the Licensed Materials if Customer or Customer Representative is, or is acting on behalf of or in collaboration with, a competitor of OmniTier, except with OmniTier’s prior written consent;

(c) access or use the Licensed Materials for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose;

(d) access or use the Licensed Materials through any commercial software or system except those authorized under the Certified OmniTier Partner Program;

(e) use the Licensed Materials on behalf of or for the benefit of any third party or to provide services or products to any third party, whether on a service bureau or time-sharing basis or otherwise, unless Customer is an Authorized Service Provider having a valid use license and using systems in compliance with the terms herein;

(f) use the Licensed Materials to develop functionality, data or content similar to or competitive with any component of Licensed Materials;

(g) extract Content from the Licensed Materials or Results and incorporate it into any competitive application or service or offering;

(h) use the Licensed Materials or Results as a diagnostic product or service;

(i) modify or translate any portion of the Licensed Materials or Results to create any derivative work based on all or any portion of the Licensed Materials or Results, except to the extent expressly permitted herein or as otherwise expressly permitted under applicable law;

(j) grant any rights, assign, sell, rent, lease, loan, deal in, distribute, make available or otherwise transfer all or any portion of the Licensed Materials to a third party without the prior written consent of OmniTier excluding (i) the exporting, publishing or disclosing Results in a manner expressly permitted herein

(k) reverse engineer, decompile, decrypt, disassemble or reduce any Licensed Materials provided herewith to human-readable form, or otherwise attempt to recreate all or any portion of the Licensed Materials, except and only to the extent otherwise expressly permitted under applicable law;

(l) display or disclose the Licensed Materials or copies or parts thereof to any person other than for Customer’s internal research and internal business purposes, excluding export, sharing or publication of Results in the manner expressly permitted herein;

(m) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed or embedded on or in any Licensed Materials or Results;

(n) fail to use commercially reasonable efforts to prevent the transmission of any code, files, scripts, agents, or programs containing viruses, worms, Trojan horses or other harmful or deleterious computer code, files, scripts, agents, or programs;

(o) represent to any third parties that OmniTier’s Licensed Materials or Results provide any diagnosis of any disease or condition;

(p) modify or alter the whole or any part of the Software nor merge any part of it with another software nor separate any components of the Software from the Software nor, save to the extent and in the circumstances permitted by law, create derivative works from, or, reverse engineer, decompile, disassemble or otherwise derive source code from the Software or attempt to do any of these things

(q) copy the Software;

(r) use the Licensed Materials in any manner that infringes the intellectual property or other rights of OmniTier or any other party;

(s) cause, authorize, or assist any third party (including Customer Representatives) to do any of the foregoing.

The restrictions above shall apply to any component of Licensed Materials that is relevant to the restriction. The Licensed Materials are trade secrets of OmniTier and its licensors (collectively, “Trade Secrets”. No part of the Licensed Materials may be used or accessed by competitors of OmniTier to develop, design or market, data or content or functionality similar to or competitive with the Licensed Materials.

3.2 Other Customer Responsibilities and Limitations. Customer shall:

(a) be responsible and liable for any action or inaction of Customer Representatives that is in violation of this Agreement,

(b) not ingress (or cause to be uploaded) any Customer Biological Data if uploading it is unlawful, illegal, or otherwise in violation of a third party right or obligation Customer has to a third party,

(c) be responsible, assume the risk and be liable for the accuracy, quality, integrity and legality of Customer Biological Data and of the means by which Customer and Customer Representatives acquire, upload, transmit and process Customer Biological Data,

(d) use commercially reasonable efforts to prevent unauthorized access to or use of the Licensed Materials by anyone other than a Customer Representative and notify OmniTier promptly of any such unauthorized access or use,

(e) use the Licensed Materials only in accordance with OmniTier Documentation, this Agreement and applicable laws and government regulations,

(f) make any disclosures to and obtain any consents or permission as required by any applicable law, rule or regulation (including privacy laws) or contractual obligation (including confidentiality obligations) for the use, uploading, processing, transfer, disclosure, sharing, storage or access to Customer Biological Data

(g) access only Content to which they have all active licenses necessary with OmniTier and third party content providers (if applicable);

(h) be responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Licensed Materials, including, without limitation, computers, computer operating system and web browser.

3.3 Regulatory or FDA Compliance. OmniTier and Customer agree that the Licensed Materials and Results are not intended to be used as a medical device to directly diagnose a disease or other condition. The Licensed Materials and Results are not intended as a diagnostic tool by physicians or to be used as a substitute for professional healthcare advice. The Customer is responsible for ensuring compliance with applicable international, national, and local clinical laboratory regulations and other specific accreditation requirements. In case Customer is using the Licensed Materials as clinical decision support tool to generate patient reports, which is not permitted by this Agreement, it is the Customer's responsibility to ensure the Results are reviewed by a health care professional, in compliance with such rules, regulations and best practices. OmniTier shall not be responsible in any manner for ensuring that Customer’s use of the Licensed Materials or Results in the context of Customer’s interpretation of Customer Biological Data complies with the rules and regulations of the US Food and Drug Administration or any other US or international regulatory bodies. Customer shall not represent to any third parties that OmniTier’s Licensed Materials or Results provide any diagnosis of any disease or condition.

4. INTELLECTUAL PROPERTY.

4.1 Licensed Materials. Customer acknowledges that OmniTier and its supplier(s) own and shall retain all intellectual property rights and other proprietary rights in and to the Licensed Materials and any other materials and information OmniTier provides to Customer as part of this Agreement, including without limitation any derivatives, improvements or modifications of the foregoing, whether or not made by OmniTier. Customer Biological Data are not considered Licensed Materials. For clarity, biological discoveries that Customer makes while using the Licensed Materials derived from Customer Biological Data are not considered to be OmniTier intellectual property.

4.2 Feedback. To the extent Customer (and/or Customer Representatives) provide or make available to OmniTier any suggestions; ideas; improvements; modifications; feedback; error identifications; corrections or additions; variant classifications; or other content or information related to the Licensed Materials (other than the Customer Biological Data), Customer and Customer Representatives hereby grant OmniTier a fully paid-up, irrevocable, perpetual, worldwide, nonexclusive license, with full rights to sublicense, to: (i) use and exploit such Feedback to improve OmniTier’s products and services and, (ii) use, reproduce, prepare derivative works of, perform, display, make, sell and otherwise distribute products and services incorporating or utilizing such Feedback.

5. TERM AND TERMINATION. This Agreement commences when Customer first accepts the terms herein or accesses the any component of the Licensed Materials. It continues until terminated by either party in accordance with the terms herein (“Term”). For clarity, for so long as any license remains valid, this Agreement will continue, and if access rights are renewed based on a new license, this agreement will apply to the new license for as long as the user account is still valid and not terminated. Customer may terminate this Agreement for convenience at any time upon notice to OmniTier without any right of refund and any fees payable for the full Term or other outstanding amounts under this Agreement shall be immediately due and payable. OmniTier may terminate this Agreement for convenience at any time upon notice to Customer provided that OmniTier refund prorated fees paid, if any, associated with remaining license term.

5.1 This UULA, OmniTier Proprietary License, OSS Licenses, or Third Party License terms granted hereunder may be terminated:

(a) by mutual written agreement of OmniTier and Customer;

(b) by either party for reasons arising out of a material uncured breach of this UULA by the other party, that the breaching party fails to cure to the non-breaching party’s reasonable satisfaction within 30 days following its receipt of notice of the breach.

5.2 Upon termination of this UULA or expiration or termination of a license for any reason, all rights granted to Customer for the applicable Licensed Materials shall immediately cease and Customer shall immediately:

(a) cease using the applicable Licensed Materials;

(b) remove all copies, installations, and instances of the applicable Licensed Materials from all Customer computers and any other devices on which the Licensed Materials was installed;

(c) upon OmniTier’s request give OmniTier written certification made by an officer or other authorized official of Customer, within ten days, that Customer has complied with all of the foregoing obligations.

6. SURVIVAL. Any provision of this UULA that requires or contemplates execution after termination of this UULA or after termination or expiration of any of the licenses granted hereunder, is enforceable against the other party and their respective successors and assignees, notwithstanding such termination. Termination of this UULA or a license shall be without prejudice to any other remedies that the terminating party may have under law, subject to the limitations and exclusions set forth in this UULA.

7. EXPORT. Customer acknowledges that the Hardware, Software and Documentation may be subject to the export control laws, rules, regulations, and restrictions including, without limitation, the United States Export Administration Regulation, and laws of other applicable foreign agencies (the "Export Controls"). Customer shall abide by the Export Controls. Customer hereby agrees to use the Hardware, Software and Documentation in accordance with the Export Controls, and shall not export, re-export, sell, lease or otherwise transfer the Hardware, Software or Documentation or any copy, portion or direct product of the foregoing in violation of the Export Controls. Customer is solely responsible for obtaining all necessary licenses or authorizations relating to the export, re-export, sale, lease or transfer of the Hardware, Software or Documentation and for ensuring compliance with the requirements of such licenses or authorizations. Customer shall indemnify OmniTier for all liabilities, penalties, losses, damages, costs or expenses that may be imposed on or incurred by OmniTier in connection with any violations or alleged violations of such laws and regulations by Customer. Customer shall not do anything to cause OmniTier to be in violation of such export control laws and regulations.

8. ADDITIONAL INTERNATIONAL PROVISIONS. The following provisions shall apply only if Customer or Customer Representative is located in the countries listed below.

8.1 United Kingdom. A third party who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.

8.2 Germany. Notwithstanding anything to the contrary in Section 9, OmniTier is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).

9. CONFIDENTIALITY AND SECURITY.

9.1 Confidentiality. By virtue of this UULA, each party hereto may have access to information that is confidential to the other party (Proprietary Information). Unless otherwise agreed to in a separate writing executed by each of the parties hereto, Proprietary Information shall include, without limitation, the OmniTier Software, the terms and pricing under this UULA, and all information disclosed by the disclosing party as confidential, including information disclosed before the execution of this UULA. Customer shall not disclose the results of any benchmark tests of the OmniTier Software to any third party without OmniTier’s prior written approval. Each party shall disclose Proprietary Information only to its employees or contractors who have a need to know and are bound by obligations of confidentiality. The parties agree to hold each other’s Proprietary Information in confidence during the term of this UULA and at all times after termination of this UULA. On the earlier termination of this Agreement or OmniTier’s written request, Customer shall cease use of Proprietary Information and return or destroy all Proprietary Information disclosed by OmniTier. The parties agree, unless required by law, not to make each other’s Proprietary Information available in any form to any third party for any purpose without the express written consent of the party who disclosed the information, unless requesting such consent and thereby notifying the disclosing party of the third party inquiry is expressly prohibited by law or legal authority. Each party shall protect the Proprietary Information, using the same degree of care as it uses to protect its own confidential information, but no less than a reasonable degree of care. Each party shall use a similar degree of care to ensure that Proprietary Information is not disclosed or distributed by its employees or agents in violation of the terms of this UULA. The parties’ obligations under this clause are perpetual and shall survive termination and neither party shall be relieved of its obligations hereunder, unless the other party releases such obligations in writing.

9.2 Proprietary Information. A party's Proprietary Information shall not include information that:

(a) is or becomes a part of the public domain through no act or omission of the other party;

(b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;

(c) is lawfully disclosed to the other party by a third party who has affirmatively represented to the other party that it is without restriction on disclosure;

(d) is independently developed by the other party.

9.3 Security Measures. Customer acknowledges and agrees that maintaining the confidentiality and secrecy of Trade Secrets are of the utmost importance to OmniTier and that any disclosure of Trade Secrets may diminish the value and strength of the Trade Secrets. OmniTier and Customer shall each take all steps, using the same degree of care, but no less than a reasonable degree of care, as each party uses to protect its own confidential information, that are reasonably necessary to protect the secrecy of the Trade Secrets and prevent them from entering the public domain or falling into the hands of others not bound by this UULA or pledged to secrecy.

10. WARRANTY DISCLAIMER; CUSTOMER ACKNOWLEDGEMENT.

OMNITIER AND ITS SUPPLIERS PROVIDE THE LICENSED MATERIALS AND ANY SERVICES IN CONNECTION WITH THIS AGREEMENT ON AN “AS IS” BASIS, AND MAKE NO WARRANTY, EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE, WITH RESPECT TO LICENSED MATERIALS, SERVICES DELIVERED HEREUNDER OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, AVAILABILITY, RELIABILITY, USEFULNESS, DATA ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER OMNITIER NOR ANY OF ITS SUPPLIERS WARRANTS THAT THE LICENSED MATERIALS OR ANY PART THEREOF OR SERVICES DELIVERED HEREUNDER WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, AVAILABLE, SECURE OR ERROR- FREE, OR THAT ANY ERRORS WILL BE CORRECTED.

VARIANT CLASSIFICATIONS AND FILTERS ARE CUSTOMIZABLE AND ARE INTENDED FOR REFERENCE AND DECISION SUPPORT PURPOSES ONLY. THE LICENSED MATERIALS ARE NOT TO BE USED DIRECTLY FOR TREATMENT OR THERAPEUTIC DECISION-MAKING, AND UNDER NO CIRCUMSTANCES REPRESENT OMNITIER RECOMMENDATIONS. CUSTOMER ACKNOWLEDGES AND AGREES THAT CONTENT AND RESULTS ARE NOT INTENDED TO BE STATEMENTS OF FACT OR TRUTH. OMNITIER ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OF UNDERLYING LITERATURE AND DATABASES NOR FOR THE OPINIONS AND RECOMMENDATIONS OF AUTHORS OF CURATED LITERATURE AND DATABASES.

CUSTOMER ACKNOWLEDGES THAT OMNITIER PROVIDES MULTIPLE, CONFIGURABLE OPTIONS FOR VARIANT FILTERING AND CLASSIFICATION, AND CUSTOMER ACCEPTS FULL RESPONSIBILITY FOR SPECIFYING AND/OR SELECTING THE APPROPRIATE VARIANT CLASSIFICATION AND/OR FILTERING OPTIONS, AS APPROPRIATE. CUSTOMER ALSO ACKNOWLEDGES AND AGREES THAT CONTENT AND RESULTS ARE NOT INTENDED TO BE MEDICAL ADVICE OR INSTRUCTIONS FOR MEDICAL DIAGNOSIS, TREATMENT OR CARE OF PERSONS OR ANIMALS, AND NO PHYSICIAN-PATIENT RELATIONSHIP IS, OR IS INTENDED TO BE, CREATED BY CONTENT PROVIDED THROUGH THE SERVICES. THE CONTENT IS NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, EXAMINATION, DIAGNOSIS OR TREATMENT AND SHOULD NOT BE USED TO DIAGNOSE, TREAT, CURE, OR PREVENT DISEASE WITHOUT SUPERVISION OF A DOCTOR OR QUALIFIED HEALTHCARE PROVIDER.

ALTHOUGH MOST CONTENT IS OBTAINED FROM SOURCES CONSIDERED BY OMNITIER TO BE RELIABLE, SOME CONTENT IS SOURCED FROM THE COMMUNITY OF USERS AND LABS WORLDWIDE. THE ACCURACY AND COMPLETENESS OF CONTENT IS NOT GUARANTEED AND NEITHER OMNITIER NOR ANY OF ITS THIRD PARTY LICENSORS OR CONTENT PROVIDERS SHALL HAVE ANY RESPONSIBILITY OR LIABILITY FOR ERRORS, DELAYS, INTERRUPTIONS, OMISSIONS, OR MALFUNCTIONS WITH RESPECT TO CONTENT OR ITS DELIVERY, REGARDLESS OF THE CAUSE OR SOURCE THEREOF. OMNITIER ASSUMES NO RESPONSIBILITY FOR UNINTENDED, OBJECTIONABLE, INACCURATE, MISLEADING OR UNLAWFUL THIRD PARTY CONTENT MADE AVAILABLE AS PART OF LICENSED MATERIALS. CONTENT PROVIDERS MAY REQUIRE SEPARATE CONTENT LICENSES DIRECTLY WITH CUSTOMER, AND OMNITIER MAY RESTRICT ACCESS TO ANY SUCH THIRD PARTY CONTENT UNTIL THE CONTENT PROVIDER NOTIFIES OMNITIER THAT CUSTOMER MAY ACCESS SUCH THIRD PARTY CONTENT. OMNITIER IS NOT RESPONSIBLE OR LIABLE IN ANY WAY FOR ANY THIRD PARTY CONTENT OR ANY REPRESENTATIONS OR STATEMENTS MADE BY A CONTENT PROVIDER ABOUT ITS THIRD PARTY CONTENT AND ITS INTENDED USE, INCLUDING (BUT NOT LIMITED TO) ANY STATEMENTS THAT CONTRADICT THIS PARAGRAPH, AND CUSTOMER AGREES THAT IN NO EVENT WILL OMNITIER BE LIABLE TO CUSTOMER OR ANY CUSTOMER REPRESENTATIVE IN CONNECTION WITH ANY THIRD PARTY CONTENT, MATERIALS, OR PRACTICES OF ANY THIRD PARTY.

OMNITIER IS NOT RESPONSIBLE FOR ANY LIABILITY OR DAMAGES ARISING FROM CUSTOMER UPLOADING BIOLOGICAL DATA, OPTING-IN FOR COMMUNITY FEATURES (INCLUDING, BUT NOT LIMITED TO, SHARING OF POOLED, ANONYMOUS ALLELE FREQUENCY INFORMATION), OR SHARING OR ACCESSING CONTENT OR RESULTS IN VIOLATION OF ANY AGREEMENT OR LAW OR POLICY OR ANY THIRD PARTY AGREEMENT OR RIGHTS; CUSTOMER IS SOLELY LIABLE AND RESPONSIBLE FOR THESE ACTIONS BY CUSTOMER AND CUSTOMER REPRESENTATIVES.

11. LIMITATION OF LIABILITY.

IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS BE LIABLE TO THE OTHER FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY OR SERVICES, LOSS OF PROFITS, THEFT, CORRUPTION, LOSS, OR DESTRUCTION, UNAUTHORIZED ACCESS TO, UNINTENTIONAL DISCLOSURE OR ALTERATION OF ANY DATA, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. EACH PARTY’S TOTAL LIABILITY ARISING OUT OF OR UNDER THIS AGREEMENT OR FOR BREACH OF THIS AGREEMENT OR IN CONNECTION WITH THE PROVISION OF ACCESS TO ANY PRODUCTS OR ANY SERVICES HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE AMOUNTS PAID TO OMNITIER BY CUSTOMER FOR THE SPECIFIC LICENSED MATERIALS OVER THE PRECEDING TWELVE (12) MONTH PERIOD (AND IN THE CASE OF CUSTOMER’S LIABILITY ANY AMOUNTS PAID OR DUE FOR THE SPECIFIC LICENSED MATERIALS OVER THE PRECEDING TWELVE (12) MONTH PERIOD) IN CONNECTION WITH THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO ANY FEES DUE TO OMNITIER HEREUNDER OR ANY BREACH OF SECTIONS 2 (RIGHTS OF ACCESS AND USE), 3 (CUSTOMER RESTRICTIONS, OBLIGATIONS AND LIMITATIONS) OR 9 (CONFLICT OF INTEREST, CONFIDENTIALITY AND SECURITY), OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

IN NO EVENT WILL OMNITIER BE RESPONSIBLE FOR THE PROVISION, FUNCTIONALITY, COSTS OR PERFORMANCE OF ANY SOFTWARE, HARDWARE OR SYSTEM PROVIDED BY A THIRD PARTY.

12. INDEMNIFICATION.

(a) Customer as indemnitor will indemnify, defend and hold harmless OmniTier, its directors, officers, employees and representatives as indemnitees from and against any and all third party losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs, arising out of any third party claim alleging that Customer Biological Data or Customer’s use of Licensed Materials in violation of this Agreement violates, infringes, misappropriates third party right or violates applicable laws. In addition, Customer will indemnify the OmniTier Indemnitees from and against all losses, damages, liability, costs and expenses incurred by the OmniTier Indemnitees arising out of any breach by Customer.

(b) If Customer has paid for a license to access Licensed Materials, then OmniTier as indemnitor will defend or settle, and hold harmless Customer, its directors, officers, employees and representatives (“Customer Indemnitees”) from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, to the extent based on any claim, suit or proceeding brought by a third party against Customer Indemnitees alleging that Customer’s use of the Licensed Materials in accordance with this Agreement and applicable Documentation for which Customer has paid OmniTier a fee directly infringes a U.S. patent or copyright and pay such damages or costs as are finally awarded against the indemnitees attributable to such claim. If such claim occurs, or in OmniTier 's opinion is likely to occur, OmniTier may, at its option and expense, procure for the indemnitee the right to continue using the infringing item(s) or to replace or modify the same so that it becomes non-infringing or, if neither of the foregoing alternatives is reasonably available, cease providing the Licensed Materials and refund to Customer all paid and unused amounts on a pro-rata basis for any unused term. Notwithstanding the foregoing, OmniTier shall have no liability for any claim to the extent arising from or relating to (i) the combination, operation, or use of the Licensed Materials with equipment, devices, or software not supplied by OmniTier or (ii) any alteration or modification of or any illegal use of the Licensed Materials or use of the Licensed Materials in violation of this Agreement.

THE FOREGOING STATES THE ENTIRE OBLIGATION OF OMNITIER AND ITS SUPPLIERS WITH RESPECT TO CLAIMS OUTLINED ABOVE, INCLUDING INFRINGEMENT OF PROPRIETARY RIGHTS, INCLUDING BUT NOT LIMITED TO PATENTS AND COPYRIGHTS.

(c) Each party’s forgoing obligations are subject to (i) the indemnitee promptly notifying the indemnitor in writing of the third party proceeding or action, (ii) the indemnitee giving the indemnitor full authority and control of the action with counsel of indemnitor’s choice, and (iii) the indemnitee providing the indemnitor information and assistance for defense of such claim.

13. NO IMPLIED WAIVER. The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.

14. GOVERNING LAW AND VENUE. This UULA shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflict of laws provisions’ thereof. Any action seeking enforcement of this UULA or any provision hereof shall be brought exclusively in the state or federal courts located in Santa Clara County, California. Each party hereby agrees to submit to the jurisdiction of such courts and, to the extent permitted under applicable law, waives any objection to such jurisdiction including, without limitation, claims relating to lack of personal or subject matter jurisdiction and forum non conveniens. Further, each party agrees to waive any requests for a trial by jury.

15. COUNTERPARTS/ELECTRONIC SIGNATURES. This UULA may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this UULA, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.

16. ASSIGNMENT. Except as otherwise set forth herein, Customer shall not, in whole or part, assign or transfer any part of this UULA, the licenses granted under this UULA or any other rights, interest or obligations hereunder, whether voluntarily, by contract, by operation of law or otherwise without the prior written consent of OmniTier. Any attempted transfer or assignment by Customer that is not permitted by this UULA shall be null and void.

17. SEVERABILITY. Whenever possible, each provision of this Agreement, will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.

18. ENTIRE AGREEMENT. This Agreement, together with the Order and any and all other subsequently added schedules and exhibits, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior understandings, both written and oral, between the Parties.

19. NOTICES. Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given in person, by overnight courier, or by mail (registered or certified mail). All notices, requests, demands or communications shall be deemed effective upon personal delivery or, if sent by mail, four days following deposit in the mail in accordance with this paragraph.

20. FORCE MAJEURE. Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reasons beyond its reasonable control, including any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications or utilities, or any act or failure to act by the other party or such other party’s officers, employees, agents or contractors; provided, however, that lack of funds shall not be deemed to be a reason beyond a party’s reasonable control.

21. HEADINGS. Headings used in this UULA are provided for convenience only and shall not be used to construe meaning or intent.

CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMER REPRESENTS TO OMNITIER THAT CUSTOMER UNDERSTANDS THOSE TERMS AND CONDITIONS AND AGREES TO BE BOUND BY THEM.