EULA, End User License Agreement

THE XPS LIBRARY AND XPS RESEARCH INSTITUTE END USER LICENSE AGREEMENT,
EULA, (“LICENSE AGREEMENT”)

Carefully read the following Terms and Conditions before installing and/or using the International XPS Spectra-Base databases and software (the “XPS Research Institute Product”) made available by XPS Research Institute Inc. (“XPS Research Institute”). By installing and/or using the XPS Research Institute Product You indicate Your acceptance of the terms and conditions of this Agreement. If You do not agree to be bound by these terms and conditions, You may return the product with Your receipt for the purchase and all packaging and documentation for a full refund within twenty (20) days of purchase. For the avoidance of doubt, all references to “You” of “Your” shall refer to the individual end user and any person or entity licensing the XPS Research Institute Product on the end user’s behalf.

1. License: XPS Research Institute hereby grant You, and You accept, a non-exclusive and non-transferable license, to use the XPS Research Institute Product for Your own internal purposes, in accordance with the documentation provided with the XPS Research Institute Product, and as provided for under the terms of this Agreement. You acknowledge that any violation of this Agreement by You could result in a termination of this Agreement.
2. Term: This Agreement is effective until terminated. You may terminate it at any time by destroying the XPS Research Institute Product.
3. Authorized use of XPS Research Institute Product: This Agreement allows You use the XPS Research Institute Product on a single sign on. You may selectively download and print limited content of the XPS Research Institute Product for Your personal non-commercial use, provided, however that any such portions of the XPS Research Institute Product downloaded or printed will continue to be subject to the terms and conditions of this Agreement, and You acknowledge that any copy, or portion printed is protected by U.S. copyright law. You shall take reasonable measures to maintain the security of the XPS Research Institute Product. Upon termination of this Agreement, You agree to destroy all copies in any form. IF YOU TRANSFER POSSESSION OF ANY COPY OF THE XPS Research Institute PRODUCT TO ANOTHER PARTY, YOU MUST NOTIFY THEM OF THE TERMS OF THIS AGREEMENT.
4. Use Restrictions. You may not (a) copy, modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the XPS Research Institute Product; (b) download, store in a retrieval system, publish, transmit, or otherwise reproduce, transfer, store, disseminate, or use, in any form or by any means, any part of the data contained within the XPS Research Institute Product, except as expressly provided for in this Agreement;(c) use the XPS Research Institute Product as a part of a service bureau, Application Service Provider (ASP), or similar structure that allows third parties to use or benefit from the use of the XPS Research Institute Product, whether over the internet or otherwise or use, in any form or by any means; (d) resell, sublicense, lease, or grant any other rights of any kind to any individual copy of the XPS Research Institute Product to any other person; (e) use any portion of the XPS Research Institute Product for the purpose of machine learning or any other expert system development; and (f) remove any proprietary marks, disclaimers, legends, and copyright notices that appear in any copy of the XPS Research Institute Product or any portion thereof. THE XPS Research Institute PRODUCT AND THE MATERIAL ACCESSIBLE HEREIN MAY NOT BE USED IN THE OPERATION OF NUCLEAR FACILITIES OR FOR IDENTIFICATION OF AN ISOTOPE OR IN RELATION TO ANY ACTIVITIES OR IN ANY OTHER CIRCUMSTANCE IN WHICH ANY ERROR OR FAILURE OF THE PRODUCT OR IN THE MATERIAL ACCESSIBLE THROUGH THE PRODUCT COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. THE XPS Research Institute PRODUCT SHOULD BE USED ONLY BY TECHNICALLY-QUALIFIED INDIVIDUALS OR THOSE UNDER THEIR DIRECT SUPERVISION. THE XPS Research Institute PRODUCT IS NOT A SUBSTITUTE FOR EXPERT INTERPRETATION OF LABORATORY RESULTS AND IS NOT A SUBSTITUTE FOR THE CURRENT STANDARD OF CARE FOR CLINICAL LABORATORY ANALYSIS.
5. Proprietary Rights. You acknowledge and agree that the XPS Research Institute Product, including but not limited to any and all updates, versions, modifications, enhancements, improvements, and copies thereof, and all information and intellectual property contained therein, is the sole and exclusive property of XPS Research Institute and/or its licensors, and the XPS Research Institute Product is licensed to You only for the term of this Agreement and strictly under the terms hereof. XPS Research Institute and/or its licensors own or have obtained all right, titles, and interest in and to the content in the XPS Research Institute Product, and the XPS Research Institute Product contains copyrighted and confidential trade secret information that is the property of, or licensed by XPS Research Institute. Except for the limited rights given to You herein, all rights are reserved by XPS Research Institute and/or its licensors.
6. Termination. If You should fail to perform in the manner required in this Agreement, this Agreement shall terminate and XPS Research Institute may exercise any rights it may have. Upon termination, XPS Research Institute requires that You destroy the XPS Research Institute Product and that You so certify, in writing to XPS Research Institute. . If You breach this Agreement, XPS Research Institute shall have the right to terminate this Agreement immediately, without prior notice. Breaches of this Agreement include but are not limited to the unauthorized sale, use or distribution of the XPS Research Institute Product or any derivative work, or any portion or enhancement of the XPS Research Institute Product or any derivative work, to any third party. You shall be responsible for any damages caused to XPS Research Institute which may result from Your breach of this Agreement, including XPS Research Institute’s costs and damages occasioned by act or omission on Your part, and its damages in enforcement of this Agreement. The remedies specified herein are cumulative, and are in addition to any other remedies which XPS Research Institute may have at law.
7. Warranties, Indemnities, and Limitation of Liability.
   1. THE XPS Research Institute PRODUCT IS PROVIDED “AS IS”, XPS Research Institute HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, XPS Research Institute MAKES NO WARRANTY OF ANY KIND THAT THE XPS Research Institute PRODUCT, DOCUMENTATION OR ANY OTHER XPS Research Institute OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET LICENSEE’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR ERROR FREE, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK). TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, NO RESPONSIBILITY IS ASSUMED FOR ANY INJURY AND/OR DAMAGE TO PERSONS, ANIMALS OR PROPERTY AS A MATTER OF PRODUCTS LIABILITY, NEGLIGENCE OR OTHERWISE, OR FROM ANY USE OR OPERATION OF ANY IDEAS, INSTRUCTIONS, METHODS, PRODUCTS OR PROCEDURES CONTAINED IN OR DERIVED FROM THE PRODUCT. LICENSED PRODUCTS SHOULD BE USED ONLY BY TECHNICALLY-QUALIFIED INDIVIDUALS OR THOSE UNDER THEIR DIRECT SUPERVISION. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE XPS Research Institute PRODUCT IS ASSUMED BY YOU.
   2. The limited warranty set forth above is in lieu of all other express warranties, whether oral or written. The agents, distributors, employees, and resellers of XPS Research Institute are not authorized to modify this warranty, nor to make additional warranties binding on XPS Research Institute. Accordingly, additional statements such as distributor representations, whether written or oral, do not constitute warranties of XPS Research Institute and should not be relied upon as a warranty of XPS Research Institute. In no case shall XPS Research Institute’s liability exceed the cost of the XPS Research Institute Product.
   3. If the XPS Research Institute Product USB is defective in workmanship or materials and XPS Research Institute is given timely notice thereof, XPS Research Institute’s sole and exclusive liability and Your sole and exclusive remedy, shall be to replace the defective USB. In the event of a defect in a USB covered by this warranty, XPS Research Institute will replace the USB provided that You return the defective disc/USB to XPS Research Institute together with a copy of Your receipt. If XPS Research Institute is unable to provide a USB that is free from such defects, You may terminate this Agreement by returning the disc/USB and all associated documentation to XPS Research Institute for a full refund. The foregoing states Your sole remedy and XPS Research Institute’s sole obligation in the event of the occurrence of a defect coming within the scope of the limited warranty.
   4. IN NO EVENT SHALL XPS Research Institute, ITS SUPPLIERS, OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE XPS Research Institute PRODUCT OR DOCUMENTATION BE LIABLE FOR ANY LOSS OR INACCURACY OF DATA OF ANY KIND OR FOR LOST PROFITS, LOST SAVINGS, OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED IN ANY WAY TO THE USE OR INABILITY TO USE THE PRODUCT, EVEN IF XPS Research Institute OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL APPLY TO ANY CLAIM OR CAUSE WHATSOEVER WHETHER SUCH CLAIM OR CAUSE IS IN CONTRACT, TORT OR OTHERWISE.
   5. You agree to indemnify and hold XPS Research Institute, its suppliers, and all of their officers, directors, employees and agents, as well all those individuals or organizations providing information for the XPS Research Institute Product, harmless from any and all claims of third parties resulting from or incidental to Your use or operation of the XPS Research Institute Product, or arising from any breach by You of any provisions of this Agreement. XPS Research Institute may, at its option, institute or defend any action arising out of the aforesaid clauses with counsel of its own choice. (Some states do not allow exclusions or limitations of implied warranties or liability in certain cases, so the above exclusions and limitations may not apply to You.)
8. Export Law Assurances. You may not use or otherwise export, re-export, release directly or indirectly the XPS Research Institute Product except as authorized by United States law and the laws of the jurisdiction in which the XPS Research Institute Product was obtained. By using the XPS Research Institute Product, You represent and warrant that You are familiar with and in full compliance with any such applicable laws, including but not limited to the International Traffic in Arms Regulations (“ITAR”) and regulations set by the Office of Foreign Assets Control (“OFAC”) and will hold XPS Research Institute harmless for any violation of such laws or regulations by You.
9. Notwithstanding any other term in this License Agreement, neither party’s delay or failure to perform any provision of this Agreement due to circumstances beyond its control (including, without limitation, war; civil disorder; strike; flood; fire; storm; accident; terrorism; governmental restriction; infectious disease; epidemic; pandemic; public health emergency; embargo; power, telecommunications or Internet failures; damage to or destruction of any network facilities; the enactment of any law, executive order, or judicial decree; or any other circumstance beyond a Party’s control whether similar or dissimilar to the foregoing) (“Force Majeure”) will be deemed to be, or to give rise to, a breach of this Agreement. The party claiming Force Majeure will provide written notice of the circumstances (where possible), and will be entitled to a reasonable extension of time for performing such obligations. Where XPS Research Institute is claiming Force Majeure, XPS Research Institute will be entitled to implement a reasonable alternative where practical under the circumstances and if its inability to perform continues for more than 30 days or it is inadvisable or commercially impractical to perform due to Force Majeure, XPS Research Institute may terminate the License Agreement without penalty or charge, on written notice, and XPS Research Institute’s performance will be fully excused.
10. THIRD PARTY SOFTWARE: You acknowledge that the XPS Research Institute Product may include components from third parties, and terms and conditions of this Agreement apply with equal force to such third party components, and such third parties are beneficiaries of this Agreement.
11. ADDITIONAL LICENSES AND SOFTWARE: Upon the mutual agreement of XPS Research Institute and You, and upon payment of then-current license fees, You may expand this Agreement to include additional software and/or data. You may expand the scope of this Agreement by renewals thereof. Use of the Additional Software shall be governed by the terms and conditions of this Agreement, and any additional terms and conditions provided with such Additional Software.
12. General.
    1. This Agreement shall be governed by the laws of the State of Oregon, without regard to such State’s conflict of law rules. Any legal action, suit, or proceeding arising out of or relating to this Agreement or the breach thereof shall be instituted in a court of competent jurisdiction in Oregon County in the State of Oregon and each party hereby consents and submits to the personal jurisdiction of such court and consents to service of process by registered or certified mail, return receipt requested, at the last known address of such party.
    2. The terms of this Agreement shall take precedence over any conflicting terms which may be in Your purchase order or XPS Research Institute’s or its agent’s invoice.
    3. If any provision of this Agreement is deemed to be unlawful, invalid, or unenforceable, the remaining provisions shall remain in full force and effect as if the unlawful, invalid, or unenforceable provision had been omitted and such unlawful, invalid or unenforceable provision will be replaced with a provision that is lawful, valid, enforceable and most closely reflects the intent of the parties.
    4. This Agreement may not be transferred or assigned without XPS Research Institute’s prior written consent.
    5. Sections 4 (with respect to limitations), 5, 6, 7 (except with respect to the limited warranty), 8, 12 and 13 shall survive the termination of this Agreement.
    6. Use, duplication, or disclosure by the U.S. Government is subject to restrictions stated in regulation 48-DFARS 252.227-7013(c)(1)(ii). XPS Research Institute Product licensors: XPS Research Institute 1091 Vineyard View Way S, Salem, Oregon, 97306, USA,
13. Acknowledgment. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU ALSO ACKNOWLEDGE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN XPS Research Institute AND YOU, AND THAT IT SUPERSEDES ANY PROPOSAL, PRIOR AGREEMENT, OR OTHER COMMUNICATIONS, WHETHER ORAL OR WRITTEN, BETWEEN YOU AND XPS Research Institute RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THIS AGREEMENT CANNOT BE MODIFIED OR AMENDED EXCEPT BY A FURTHER WRITTEN INSTRUMENT EXECUTED BY YOU AND THE XPS RESEARCH INSTITUE INC