Everest Biolabs Software License Agreement

Effective Date: January 1, 2025

This Software License Agreement (“Agreement”) is entered into by and between Everest Biolabs, Inc., and the individual or entity that purchases, accesses, installs, or uses the Software (“Licensee”).

1. Scope and Acceptance. This Agreement governs Licensee’s access to and use of software provided by Everest Biolabs, whether embedded in an Everest Biolabs instrument, installed locally, or otherwise made available by Everest Biolabs (the “Software”). By purchasing, accessing, installing, downloading, or using the Software, Licensee agrees to be bound by this Agreement.

2. License Grant. Subject to Licensee’s compliance with this Agreement and payment of all applicable fees, Everest Biolabs grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable license to use the Software solely:

a. in connection with Licensee’s permitted use of Everest Biolabs products;

b. for Licensee’s internal research and development activities; and

c. in accordance with any documentation, specifications, or instructions provided by Everest Biolabs.

No sale of the Software is made under this Agreement. Any reference to a “purchase” of the Software means only the purchase of a license to use the Software under this Agreement.

3. Ownership. The Software is proprietary to Everest Biolabs and/or its licensors and is protected by copyright and other intellectual property laws. Everest Biolabs and its licensors retain all right, title, and interest in and to the Software, including all modifications, updates, enhancements, and related documentation.

Except for the limited license expressly granted in this Agreement, Licensee acquires no right, title, or interest in or to the Software.

4. Restrictions. Licensee shall not, and shall not permit any third party to:

a. copy the Software, except for one archival or backup copy if necessary for permitted use;
b. modify, adapt, translate, or create derivative works of the Software;
c. reverse engineer, decompile, disassemble, or otherwise attempt to derive source code, underlying ideas, algorithms, structure, or organization of the Software, except to the extent such restriction is prohibited by applicable law;
d. sell, rent, lease, lend, distribute, sublicense, assign, transfer, or otherwise make the Software available to any third party;
e. remove, alter, or obscure any proprietary notices, labels, or marks in the Software;
f. use the Software for any use not expressly authorized by Everest Biolabs; or
g. use the Software except as expressly permitted under this Agreement and applicable Everest Biolabs documentation.

The Software is provided as a general-purpose laboratory tool. If Licensee incorporates the Software into a Laboratory Developed Test (LDT) or other clinical workflow, Licensee acknowledges they are the ‘Developer’ of said test under applicable law. Everest’s role is strictly as a component supplier, and Everest assumes no liability for the clinical validity or utility of the Licensee’s resulting data.

5. Third-Party Software and System Requirements. Licensee must supply, at its own cost, all required third-party software, systems, and configurations specified by Everest Biolabs for operation of the Software.

Everest Biolabs is not responsible for performance issues caused by third-party software, hardware, operating systems, network environments, or configurations not specified or approved by Everest Biolabs.

6. Permitted Users. Licensee may permit its employees and contractors to use the Software solely on Licensee’s behalf and solely for Licensee’s internal permitted purposes, provided Licensee remains fully responsible for their compliance with this Agreement.

7. Updates and Support. Everest Biolabs may, in its discretion, provide updates, bug fixes, patches, or new versions of the Software. Unless otherwise stated by Everest Biolabs in writing, any such items will be deemed part of the Software and governed by this Agreement.

Any support, maintenance, or service obligations will be only as separately agreed in writing or as included with the applicable product or service purchase.

8. Term and Termination. This Agreement begins on the Effective Date and continues until terminated.

Everest Biolabs may terminate this Agreement upon written notice if Licensee materially breaches this Agreement and fails to cure that breach within fifteen (15) days after receiving written notice, except that Everest Biolabs may terminate immediately if Licensee breaches Section 4, misuses the Software in any diagnostic or clinical application, infringes Everest Biolabs’ intellectual property rights, or uses the Software in a manner that creates a material legal, regulatory, cybersecurity, or safety risk.

Licensee may terminate this Agreement at any time by ceasing all use of the Software, except to the extent the Software remains embedded in an Everest Biolabs instrument.

Upon termination, the license granted herein will end and Licensee shall cease all use of the Software and, upon request, delete or destroy all removable copies of the Software in its possession or control. For embedded copies that cannot reasonably be removed from Everest Biolabs instruments without impairing intended operation, Licensee may continue to use only the embedded object code solely as required to operate the applicable instrument already purchased by Licensee, unless the termination resulted from Licensee’s breach of Section 4 or misuse in a prohibited diagnostic or clinical application.

Sections 3, 4, 8, 9, 10, 11, 12, and 16 survive termination.

9. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN EVEREST BIOLABS’ APPLICABLE WRITTEN WARRANTY TERMS, THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE.” EVEREST BIOLABS DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

10. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEREST BIOLABS AND ITS SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF DATA, LOSS OF USE, LOSS OF PROFITS, OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATING TO THE SOFTWARE OR THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEREST BIOLABS’ TOTAL LIABILITY ARISING OUT OF OR RELATING TO THE SOFTWARE OR THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE LICENSE OR, IF THE SOFTWARE WAS PROVIDED AS PART OF AN INSTRUMENT OR PRODUCT, THE PORTION OF THE PRICE REASONABLY ALLOCABLE TO THE SOFTWARE.

11. Intellectual Property Claims. Everest Biolabs’ obligations, if any, with respect to claims that the Software infringes a third party’s intellectual property rights shall be governed by the applicable patent infringement and IP provisions in Everest Biolabs’ Terms & Conditions, including the limitations and conditions set forth there.

12. Governing Law and Venue. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to conflict of laws rules. Any action arising out of or relating to this Agreement shall be brought in the state or federal courts located in the districts including Middlesex County, Massachusetts, and the parties consent to personal jurisdiction and venue there.

13. Entire Agreement. This Agreement, together with Everest Biolabs’ applicable quotation, order confirmation, and Terms & Conditions, constitutes the entire agreement between the parties with respect to the Software and supersedes all prior or contemporaneous understandings regarding the Software, except where the parties have entered into a separate written agreement signed by both parties.

14. No Assignment. Licensee may not assign or transfer this Agreement, whether by operation of law or otherwise, without Everest Biolabs’ prior written consent. Any attempted assignment in violation of this section is void.

15. Severability. If any provision of this Agreement is held unenforceable, the remaining provisions will remain in full force and effect, and the unenforceable provision will be enforced to the maximum extent permitted by law.

16. Export and Compliance. Licensee shall comply with all applicable export control, sanctions, and import laws and regulations in its use of the Software and any Everest Biolabs products with which the Software is provided.