Terms and Conditions

ROSETTA BIOSOFTWARE WEB SITE
TERMS OF USE AGREEMENT
PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY

Last modified: September 15, 2009

Introduction

This Rosetta Biosoftware Web Site Terms of Use Agreement (this "Agreement") is between you ("User") and either Rosetta Inpharmatics LLC, through its business unit Rosetta Biosoftware (“RBS US”) or Rosetta Biosoftware UK Limited (“RBS UK”) (RBS US and RBS UK collectively referred to as "Rosetta Biosoftware"). User's use of the Rosetta Biosoftware Web site (the "Web Site") is conditioned on User's acceptance of the terms and conditions contained in this Agreement. User will be invited to indicate User's acceptance of these terms and conditions at the end of this Agreement.

This Agreement applies to users of the Web Site who seek access to certain restricted Web pages and Content (as defined below) as customers of a particular Rosetta Biosoftware product or products.

Note: Beginning September 15, 2009, Ceiba Solutions Inc. is operating the Web Site as Rosetta Biosoftware’s agent, acting on behalf of Rosetta Biosoftware.

By clicking on the "Accept Terms & Conditions of Use" button, User agrees that User has read, understands, accepts, and agrees to be bound by this Agreement, and User also confirms that User has the authority to agree to be so bound to this Agreement. IF USER DOES NOT AGREE TO THIS AGREEMENT OR DOES NOT HAVE AUTHORITY TO SO AGREE, USER MUST IMMEDIATELY LOG OFF AND NOT ACCESS OR FURTHER USE THE WEB SITE.

1. License.

1.1 Use. Rosetta Biosoftware hereby grants User a nonexclusive, nontransferable license to access and use the Web Site via the Internet and to view and download a copy of the text and images expressly provided to User by Rosetta Biosoftware (the "Content") solely for User's Internal Use (as defined below). User may use the Web Site only for the retrieval of the Content and shall comply with all applicable laws and regulations with respect to use of the Web Site and the Content. All right, title and interest (including without limitation, copyright and all other intellectual property rights) in and to the Web Site and Content will at all times remain the property of Rosetta Biosoftware, its licensor(s), or service providers. This license grants to User the right to use the Web Site and Content only, and User does not acquire any right of ownership or title in the Web Site or Content

In this Agreement "Internal Use" means use solely for User's internal business purposes in a manner consistent with the license rights and obligations under the license agreement to the particular Rosetta Biosoftware product(s) ("Rosetta Biosoftware Product(s)") between User's company and Rosetta Biosoftware (the "Product License Agreement"). User and User’s company are responsible for compliance with the Product License Agreement. [To the extent User is not aware of the terms of the Product License Agreement, Rosetta Biosoftware encourages User to contact User's legal department or otherwise attain advice regarding the terms of the Product Licence Agreement.] In the event of any inconsistency between the various Product License Agreements for Rosetta Biosoftware Products to which User's company has a license, User agrees to comply with the Product License Agreement that pertains to the Rosetta Biosoftware Product most similar or related to the Content which User is using.

1.2 Data. Rosetta Biosoftware may deliver or otherwise provide to User as Content certain genetic data and annotation procured from third party licensors ("Third Party Data") for the purpose of assisting User to use, or complementing User’s use of, the Rosetta Biosoftware Product(s). The Third Party Data are provided for User's convenience only and Rosetta Biosoftware’s sole discretion and may be pre-modified for compatibility with the applicable Rosetta Biosoftware Product(s) for which such Third Party Data are designated. To that extent User is provided the Third Party Data under a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable license to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute the Third Party Data to others. User acknowledges that the Third Party Data are freely available elsewhere from public domain sources and nothing in this Agreement prevents User from acquiring such data from such sources and using such data for whatever purposes User sees fit, in accordance with applicable laws. All right, title and interest (including without limitation, copyright and all other intellectual property rights) in and to the Third Party Data will at all times remain the property of the third party licensors. User has sole responsibility for the storage and use of all the Third Party Data delivered or otherwise provided to User by Rosetta Biosoftware.  As a condition of having access to or using the Third Party Data, User warrants that User will not use the Third Party Data for any purpose that is unlawful.  User is granted no rights to use any trade names, trademarks, service marks, or product names of the third party licensors, except as required by User for User’s Internal Use as is reasonable and customary in order to describe the origin of the Third Party Data. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ROSETTA BIOSOFTWARE PROVIDES THE THIRD PARTY DATA ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES INCLUDING, WITHOUT LIMITATION, FOR NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY, COMPLETENESS, TIMELINESS, FITNESS FOR A PARTICULAR PURPOSE, OR FREEDOM FROM ERRORS, OMISSIONS, BUGS, VIRUSES, ANOMALIES, OR CONDITIONS OF TITLE. USER IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USING OR REDISTRIBUTING THE THIRD PARTY DATA AND ASSUMES ANY RISKS ASSOCIATED WITH USER'S EXERCISE OF PERMISSIONS UNDER THIS SECTION 1.2, AND ACKNOWLEDGES THAT ROSETTA BIOSOFTWARE HAS NOT MADE ANY REPRESENTATIONS TO USER WITH RESPECT TO THE THIRD PARTY DATA. IN NO EVENT AND UNDER NO LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, UNLESS REQUIRED BY APPLICABLE LAW (SUCH AS DELIBERATE AND GROSSLY NEGLIGENT ACTS) OR AGREED TO IN WRITING, SHALL ROSETTA BIOSOFTWARE OR ANY OTHER PERSON BE LIABLE TO USER FOR DAMAGES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER ARISING AS A RESULT OF RECEIPT, USE OR DISTRIBUTION OF THE THIRD PARTY DATA, EVEN IF ROSETTA BIOSOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  To the extent legally permitted, User's sole and exclusive remedy for any defects in or inability to use the Third Party Data shall be for Rosetta Biosoftware to direct User to the source of the Third Party Data, if still available. Due to restrictions of certain licensors of the Third Party Data, Rosetta Biosoftware reserves the right to make such data available on the condition of User's agreement to additional terms, including terms posted on the Web Site proximate to where such data may be downloaded or otherwise accessed by User; and if so, User agrees to be bound by those terms in relation to User's use of such data.

1.3 Restrictions. User's right to use the Web Site and Content is personal to User. User may not transfer or make available User's password or Web Site access rights to any other person. Any distribution by User of User's password or access rights is a breach of this Agreement and may result in termination of this Agreement at Rosetta Biosoftware's sole discretion. Except as expressly authorized by a relevant and applicable Product License Agreement  User may not: (a) use, copy or disclose the Web Site or the Content except as permitted by this Agreement; (b) use the Web Site or the Content for time-sharing, rental or service bureau purposes; (c) sell, sublicense, resell, or otherwise transfer User's right to use the Web Site or the Content; (d) modify, reverse engineer, decompile or disassemble any part or all of the Web Site or Content; (e) create or attempt to create derivative works based on or of the Web Site or the Content, in whole or in part other than as permitted by law; (f) use the Web Site or the Content for any purpose that is unlawful or causes Rosetta Biosoftware any loss, damage or harm; or (g) engage in any conduct that is likely to impair or cause damage to the operation of the Web Site.

1.4 Feedback and unsolicited submissions. If User provides Rosetta Biosoftware any feedback about the Web Site or Content, User grants Rosetta Biosoftware the right to use that feedback for the purpose of improving the Web Site, Content or Rosetta Biosoftware Products or services (and for any other purpose Rosetta Biosoftware deems necessary or desirable) without being obliged to pay User any compensation in respect of Rosetta Biosoftware’s use of that feedback. If User does send Rosetta Biosoftware unsolicited ideas such ideas will be deemed to be non-confidential and Rosetta Biosoftware will not be required to provide any acknowledgement of their source.

2. Confidential Information.

The Web Site contains confidential and proprietary information and content of Rosetta Biosoftware ("Rosetta Biosoftware Confidential Information"). User agrees not to make available the Rosetta Biosoftware Confidential Information to any other person, except to User's employees or contractors to the extent that such employees or contractors’ access to Rosetta Biosoftware Confidential Information is necessary to enable User to exercise User's license to the Rosetta Biosoftware Product(s). User must ensure that any such employees or contractors are bound by an appropriate agreement that ensures compliance with all applicable provisions of this Agreement on terms that are no less stringent than those of this Agreement. User shall take all reasonable precautions to safeguard the Rosetta Biosoftware Confidential Information, exercising a high degree of care, and shall promptly notify Rosetta Biosoftware of any unauthorized use or disclosure of Rosetta Biosoftware Confidential Information, and to take all reasonable actions to prevent use of the Rosetta Biosoftware Confidential Information in breach of this Agreement. User's obligations to keep confidential the Rosetta Biosoftware Confidential Information shall survive termination of this Agreement. Subject to the foregoing, User's use and non-disclosure of Rosetta Biosoftware Confidential Information should be consistent with the terms and conditions of use and non-disclosure under any relevant Product License Agreement.

3. Indemnification.

User's use of this Web Site and its Content is voluntary. User shall indemnify Rosetta Biosoftware and its affiliates, distributors, licensors, and agents, and all of its and their directors, employees, and agents against, and hold them harmless from, any and all lawsuits, claims, expenses (including reasonable attorneys' fees), settlements, damages, judgments and the like arising from User's use of the Web Site and Content or User’s failure to maintain the confidentiality or security of User’s password or access rights..

4. Injunctive Relief.

User agrees that, if User breaches or threatens to breach this Agreement in any manner, that Rosetta Biosoftware may suffer irreparable damage that money damages will be inadequate, and that Rosetta Biosoftware shall be entitled to apply for preliminary and other injunctive relief by a court of competent jurisdiction against any such breach or threatened breach by User,. Such injunctive relief shall be in addition to, and in no way in limitation of, any and all other available remedies Rosetta Biosoftware may have in law or equity, or under this Agreement, for the enforcement of this Agreement.

5. Warranties and Disclaimers of Warranties.

EXCEPT TO THE EXTENT SET FORTH IN THE APPLICABLE PRODUCT LICENSE AGREEMENT:

·         ROSETTA BIOSOFTWARE MAKES NO REPRESENTATIONS OR, TO THE EXTENT LEGALLY PERMITTED, WARRANTIES ABOUT THE WEB SITE OR THE CONTENT, INCLUDING WITHOUT LIMITATION, THE SUITABILITY OF THE CONTENT AND OTHER INFORMATION CONTAINED ON THIS WEB SITE FOR ANY PURPOSE.

·         TO THE EXTENT LEGALLY PERMITTED, USER'S ACCESS TO AND USE OF THE WEB SITE, THE CONTENT AND OTHER INFORMATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. ROSETTA BIOSOFTWARE HEREBY DISCLAIMS OR EXCLUDES ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE WEB SITE, THE CONTENT AND OTHER INFORMATION, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND AVAILABILITY.

·         ROSETTA BIOSOFTWARE DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS, OF THE CONTENT OR OTHER INFORMATION CONTAINED ON THE WEB SITE.

·         ROSETTA BIOSOFTWARE DOES NOT WARRANT THAT: THE WEB SITE AND ITS CONTENT WILL MEET USER'S REQUIREMENTS; THE WEB SITE AND THE CONTENT, INCLUDING WITHOUT LIMITATION, ITS OPERATION, OR THE SERVICES WILL BE ERROR-FREE, WITHOUT INTERRUPTION OR DELAY; OR THAT ANY OR ALL DEFECTS WILL BE CORRECTED.

FURTHER, ROSETTA BIOSOFTWARE ALSO PROVIDES NO WARRANTY THAT THE WEB SITE AND THE CONTENT WILL FUNCTION PROPERLY IN COMBINATION WITH USER'S EQUIPMENT. ROSETTA BIOSOFTWARE PROVIDES NO WARRANTY THAT ANY FILES AVAILABLE FOR DOWNLOADING OR OTHERWISE ACCESSING VIA THE WEBSITE OR OTHERWISE FROM ROSETTA BIOSOFTWARE WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR OTHER MALICIOUS CODE.. USER MUST TAKE THEIR OWN SECURITY AND VIRUS PROTECTION MEASURES AS THEY SEE FIT.

6. Limitation of Remedies and Limitation of Liabilities.

6.1 TO THE EXTENT LEGALLY PERMITTED, USER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO USER'S INABILITY TO USE OR ACCESS THE WEB SITE OR THE CONTENT, DEFECTS IN THE WEB SITE, OR ANY OTHER MATTER ARISING FROM USER'S USE OF THE WEB SITE OR THE CONTENT SHALL BE THAT ROSETTA BIOSOFTWARE SHALL USE REASONABLE EFFORTS TO PROVIDE USER WITH (A) IN THE CASE OF WRITTEN CONTENT TO WHICH USER IS GRANTED ACCESS BY ROSETTA BIOSOFTWARE, A COPY OF THE CONTENT IN AN ELECTRONIC FORMAT COMPATIBLE WITH ADOBE SYSTEMS INCORPORATED THEN-GENERALLY AVAILABLE VERSION OF ADOBE ACROBAT® READER, OR MICROSOFT CORPORATION'S THEN-GENERALLY AVAILABLE VERSION OF WORD® OR A PAPER COPY OF THE CONTENT, AT ROSETTA BIOSOFTWARE'S SOLE DISCRETION, (B) IN THE CASE OF ROSETTA BIOSOFTWARE PRODUCT SOFTWARE TO WHICH USER IS GRANTED ACCESS BY ROSETTA BIOSOFTWARE, A COPY OF THE SOFTWARE VIA TANGIBLE MEDIA OR OTHER ELECTRONIC TRANSFER MEANS TO THE EXTENT USER IS ENTITLED TO RECEIVE SUCH SOFTWARE UNDER A PRODUCT LICENSE AGREEMENT, AND (C) IN THE CASE OF THIRD PARTY DATA TO WHICH USER IS GRANTED ACCESS BY ROSETTA BIOSOFTWARE, DIRECTIONS TO ACCESS SUCH THIRD PARTY DATA DIRECTLY BY USER FROM THE APPLICABLE THIRD PARTY LICENSORS.

6.2 USER IS RESPONSIBLE FOR THE SELECTION OF SOFTWARE TO SATISFY USER'S REQUIREMENTS, FOR USER'S DATA, AND FOR THE DATA AND OTHER RESULTS OBTAINED, AND CONCLUSIONS DRAWN, FROM USE OF THE WEB SITE OR THE CONTENT. EXCEPT TO THE EXTENT SET FORTH IN A RELEVANT PRODUCT LICENSE AGREEMENT, ROSETTA BIOSOFTWARE AND ITS AFFILIATES, DISTRIBUTORS, LICENSORS, AND AGENTS, AND ALL OF ITS AND THEIR DIRECTORS, EMPLOYEES, AND AGENTS WILL HAVE NO LIABILITY TO USER, THIRD PARTIES OR RELATED PARTIES IN CONNECTION WITH THE USE OF SUCH DATA, RESULTS AND CONCLUSIONS, OR ARISING OUT OF ANY USE OF THE WEB SITE OR THE CONTENT, AND ASSUME no RESPONSIBILITY FOR USER'S ACTS OR OMISSIONS WHICH MAY RESULT IN ANY LIABILITY OR DAMAGES DUE TO MALPRACTICE, FAILURE TO WARN, NEGLIGENCE OR ANY OTHER BASIS. IN ADDITION USER ACKNOWLEDGES THAT, ACTIONS OR INACTIONS OF THIRD PARTIES MAY RESULT IN SITUATIONS IN WHICH USER'S INTERNET CONNECTION, USE OF THE WEB SITE, THE CONTENT OR OTHER INFORMATION MAY BE IMPAIRED, DISRUPTED OR DAMAGED AND AS SUCH ROSETTA BIOSOFTWARE DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE INTERNET, AND ROSETTA BIOSOFTWARE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH ACTIONS OR INACTIONS.

6.3 TO THE EXTENT LEGALLY PERMITTED, IN NO EVENT SHALL ROSETTA BIOSOFTWARE OR ITS AFFILIATES, DISTRIBUTORS, LICENSORS, AND AGENTS, AND ALL OF ITS AND THEIR DIRECTORS, EMPLOYEES, AND AGENTS BE LIABLE AS A RESULT OF USER'S USE OF THE WEB SITE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS RESULTING FROM BUSINESS DISRUPTION, LOSS OF DATA, LOST PROFITS, LOST GOODWILL, OR DAMAGE TO SYSTEMS OR DATA, HOWSOEVER ARISING, INCLUDING WITHOUT LIMITATION, THOUGH AN ACTION in CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF ROSETTA BIOSOFTWARE OR ITS AFFILIATES, DISTRIBUTORS, LICENSORS, AND AGENTS, AND ALL OF ITS AND THEIR DIRECTORS, EMPLOYEES, AND AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.4 EXCEPT TO THE EXTENT SET FORTH IN THE RELEVANT PRODUCT LICENSE AGREEMENT, AND TO THE EXTENT LEGALLY PERMITTED, THE OBLIGATIONS OF ROSETTA BIOSOFTWARE AND USER'S RIGHTS AND REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE GIVEN IN SUBSTITUTION FOR ALL OTHER WARRANTIES, OBLIGATIONS, AND LIABILITIES OF ROSETTA BIOSOFTWARE.

7. Term and Termination.

This Agreement is effective immediately upon User's acceptance of this Agreement and shall continue until terminated as described in this Section 7. Rosetta Biosoftware may suspend or terminate this Agreement immediately and without notice (a) without cause at any time, or (b) if: (i) User transfers or makes available User's password or Web Site access rights to others, except with Rosetta Biosoftware’s prior written consent in each instance; (ii) User breaches this Agreement and fails to cure such breach within 10 calendar days after receipt of notice in relation to such breach; or (iii) User's company terminates or suspends its business or becomes subject to any bankruptcy or insolvency proceeding. Furthermore, User's use of the Web Site may be terminated immediately and without notice in the event that User and/or User's company is no longer entitled to receive technical support and software upgrade protection under any relevant Product License Agreement or upon Rosetta Biosoftware’s discontinuance of support and maintenance of the Rosetta Biosoftware Product(s). If User or User's company is a licensee of more than one Rosetta Biosoftware Product, the previous sentence will be applicable only to the Web Site with respect to the Rosetta Biosoftware Product for which User or User's company are no longer entitled to receive such technical support and software upgrade protection. Termination of this Agreement will not limit a party from pursuing any other remedies available to it except to the extent that the remedies described herein are explicitly stated to be exclusive. All rights and obligations that should by their nature survive termination will survive any termination of this Agreement, including (without limitation) the terms of Sections 2-8. Upon termination of this Agreement with respect to any Rosetta Biosoftware Product, User will make no further use of the Web Site or the Content with respect to such Rosetta Biosoftware Product, except where use of the Content is permitted under the relevant Product License Agreement.

8. General.

8.1 Assignment, Successors. No right or license under this Agreement may be assigned or transferred by User nor may any duty be delegated by User without Rosetta Biosoftware's prior written consent. Any assignment, transfer or delegation in contradiction of this provision shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of User and Rosetta Biosoftware.

8.2 Waiver, Amendment. Waiver of a breach of or right hereunder will not constitute a waiver of any other or subsequent breach or right. This Agreement may be amended only in a document signed by authorized representatives of User and Rosetta Biosoftware, as applicable.

8.3 Governing Law. This Agreement shall be governed exclusively by Washington State law excluding its conflicts of laws rules. Venue for any action between the parties arising under this Agreement shall be King County, State of Washington.

8.4 Interpretation, Severability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law to the greatest extent possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. If any provision in this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions in this Agreement will remain in full force and effect.

8.5 Changes. Rosetta Biosoftware reserves the right to add to, modify, or remove the Web Site, the Content, or any information, feature, specification, or other part of the Web Site (at any time and without notice to User). Rosetta Biosoftware reserves the right to change this Agreement from time to time by publishing the changed terms on the Web Site. User should review this Agreement periodically to be aware of such changes. User’s continuing access or use of the Web Site following such publication shall be deemed as User’s acceptance of the revised terms and conditions of this Agreement.

8.6 Entire Agreement. With the exception of User's agreement to terms and conditions under a relevant Product License Agreement and related agreements pertaining to the Web Site and the Content, this Agreement is the complete and exclusive agreement between the parties and supersedes all previous and contemporaneous agreements, proposals and communications with respect to this subject matter. In the event of any conflict between this Agreement and the Product License Agreement, this Agreement shall prevail.

PLEASE INDICATE YOUR UNDERSTANDING, ACCEPTANCE AND AGREEMENT TO THIS AGREEMENT BY CLICKING ON THE "Accept Terms & Conditions of Use" button BELOW.