Terms and Conditions of Use

1. ACCEPTANCE OF THE TERMS OF USE

These terms and conditions of use are entered into by and between the user (hereinafter referred to as “You” or “Licensee”) and Kent Informatics, Inc. (hereinafter referred to as “Company”, “Licensor” or “We”). The following terms and conditions (“Terms of Use”) govern your access to, and use of, https://kentinformatics.com/, including any Software (defined below) licensed to You by Company through https://kentinformatics.com/ (the “Website”).

Please read these Terms of Use carefully. By clicking to accept the Terms of Use, you accept and agree to be bound and abide by these Terms of Use with respect to your use of the Website and your use of any Software licensed to You by Company through the Website. Furthermore, by clicking to accept these Terms of Use, you represent and warrant that you are of legal age to form a binding contract with the Company.

2. CHANGES TO THE TERMS OF USE

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when the revised Terms of Use are posted on the Website. Your use of the Website following a revision to these Terms of Use means that You accept such changes. Company will notify You of any changes to these Terms of Use by posting a notice indicating such on the Website homepage.

3. ACCESSING THE WEBSITE AND ACCOUNT SECURITY

We reserve the right to withdraw or amend this Website, and any service or material (including Software) we make available on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website.

To purchase Software through the Website, you may be asked to provide certain registration details. It is a condition of your use of the Website, and your purchase of the Software, that all the information you provide on the Website is correct, current, and complete. We will not sell or otherwise share this information with third parties.

4. PROHIBITED USES

You may use the Website only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Website:

  • In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
  • To impersonate or attempt to impersonate the Company, a Company employee, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
  • To engage in any other conduct that may harm the Company or users of the Website or expose them to liability.

5. GEOGRAPHIC RESTRICTIONS

Company is based in the State of California in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

6. CHANGES TO THE WEBSITE

We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

7. INFORMATION ABOUT YOU AND YOUR VISITS TO THIS WEBSITE

We do not track cookies. No information collected on this Website will be sold or otherwise shared with third parties.

8. ONLINE PURCHASES AND OTHER TERMS AND CONDITIONS

All purchases through our site or other transactions for the sale of Software formed through the Website are governed by the terms of Paragraph 9 below.

9. LICENSED SOFTWARE

A. Definitions.

(i) For the purposes of this Terms of Use, the following definition of “Software” apply:

If Licensee purchases the BLAT software, “Software” shall refer to the following executable programs: blat, gfClient, gfServer, faToNib, nibFrag, pslPretty, and pslCat in Sun Sparc and Linux i386 executable formats, in source and object code format, including any Updates provided to Licensee pursuant to the Terms of Use. Software shall also include the source code in the following files:

  • blat/blat.c
  • gfClient/gfClient.c
  • gfServer/gfServer.c
  • hg/pslCat/pslCat.c
  • hg/pslPretty/pslPretty.c
  • lib/common.c*
  • lib/linefile.c*
  • lib/dnautil.c*
  • lib/dnaseq.c*
  • lib/fa.c*
  • lib/psl.c*
  • jkOwnLib/crudeali.c
  • jkOwnLib/fuzzyFind.c
  • jkOwnLib/genoFind.c
  • jkOwnLib/gfClientLib.c
  • jkOwnLib/gfOut.c
  • jkOwnLib/ooc.c
  • jkOwnLib/patSpace.c
  • jkOwnLib/supStitch.c
  • jkOwnLib/trans3.c

If Licensee purchases the isPCR software, “Software” shall refer to the following executable programs: isPcr, gfServer, gfPcr, faToTwoBit, twoBitToFa, and webPcr in Sun Sparc and Linux i386 executable formats in source and object code format, including any Updates provided to Licensee pursuant to the Terms of Use. Software shall also include the source code in the following files:

  • isPcr/isPcr.c
  • gfServer/gfServer.c
  • lib/common.c*
  • lib/linefile.c*
  • lib/dnautil.c*
  • lib/dnaseq.c*
  • lib/fa.c*
  • lib/psl.c*
  • jkOwnLib/crudeali.c
  • jkOwnLib/fuzzyFind.c
  • jkOwnLib/genoFind.c
  • jkOwnLib/gfClientLib.c
  • jkOwnLib/gfOut.c
  • jkOwnLib/ooc.c
  • jkOwnLib/patSpace.c
  • jkOwnLib/supStitch.c
  • jkOwnLib/trans3.c

The definitions of Software outlined above shall further include any files included within these files or any other files in the lib directory needed to successfully link the executables specified above. Note that modules in the lib (but not the jkOwnLib or hg/lib) directories are free to use for any purpose without an explicit license.

(ii) An “Authorized User” is an employee or contractor of Licensee who Licensee permits to access and use the Software and/or Documentation on an Instance pursuant to Licensee's license hereunder.

(iii) The “Documentation” means Licensor's user manuals, handbooks, and installation guides relating to the Software available here.

B. License Grant.

Subject to and conditioned on Licensee's payment of the Fees (defined below) and compliance with all other conditions of these Terms of Use and Licensee's receipt of an invoice marked “PAID”, issued by Licensor to Licensee following Licensee's successful submission of online payment for purchase of the Software (the “Invoice”), Licensor shall grant Licensee a worldwide, non-exclusive, non-sublicensable, and non-transferable (except in compliance with Paragraph 14(F)) license (the “Software License”) during the Term for each Instance of Software purchased. Licensee shall use the Software solely for Licensee's internal business purposes and use and make copies of the Documentation.

C. Use Restrictions.

Licensee shall not use the Software or Documentation for any purposes beyond the scope of the Software License(s). Without limiting the foregoing and except as otherwise expressly set forth in these Terms of Use, Licensee shall not at any time, directly or indirectly: (i) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation; (iv) remove any proprietary notices from the Software or the Documentation; or (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

D. Reservation of Rights.

Licensor reserves all rights not expressly granted to Licensee under these Terms of Use. Except for the limited rights and licenses expressly granted by these Terms of Use, nothing in this agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Software.

E. Software Updates and New Products.

It is possible during the Term of Licensee's Software License(s) that Licensor will make incremental improvements (“Updates”) to the Software. These Updates may be provided to Licensee free of charge in Licensor's sole discretion. It is also possible during the Term of Licensee's Software License(s) that Licensor will develop substantially new products (“New Products”) that include some parts of the Software. The license granted to Licensee, in accordance with these Terms of Use, does not include a license grant to the New Products. Licensor reserves the exclusive right to determine what is an Update and what is a New Product.

F. Licensee Responsibilities.

Licensee is responsible and liable for all uses of the Software and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of these Terms of Use. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms of Use if taken by Licensee will be deemed a breach of these Terms of Use by Licensee. Licensee shall take reasonable efforts to make all Authorized Users aware of the provisions of these Terms of Use as applicable to such Authorized User's use of the Software, and shall cause Authorized Users to comply with such provisions.

G. Support.

The Software License(s) granted to Licensee, in accordance with these Terms of Use, will entitle Licensee to a certain amount of free technical support from Licensor which shall be accomplished via email during each year of the Term (defined below). The level of customer support Licensee is entitled to will depend on the number of Software License(s) purchased and will be reflected on the Invoice.

H. Fees and Payment

Licensee shall pay Licensor the fees (“Fees”) for the Software selected by the Licensee and set forth in the Invoice without offset or deduction. Licensee shall make all payments hereunder in US dollars on or before the due date set forth in the Invoice. If Licensee fails to make any payment when due, in addition to all other remedies that may be available: (i) Licensor may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) Licensee shall reimburse Licensor for all costs incurred by Licensor in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days following written notice thereof, Licensor may prohibit access to the Software until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Licensee or any other person by reason of such prohibition of access to the Software.

All Fees and other amounts payable by Licensee under these Terms of Use are exclusive of taxes and similar assessments. Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor's income.

I. Term

The initial term of the Software License(s) will begin on the date on which these Terms of Use are accepted (the “Effective Date”) and, unless terminated earlier pursuant to any express provisions contained in these Terms of Use, will continue in effect until one year from such date (the “Initial Term”). The Software License(s) purchased by Licensee may renew at the election of Licensee at Licensor's then-current Fees for successive one (1) year terms unless earlier terminated pursuant to express provisions contained in these Terms of Use or by either party giving the other party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).

J. Termination.

In addition to any other express termination right set forth in the Terms of Use:

(i) Licensor may terminate the Software License(s), effective on written notice to Licensee, if Licensee: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Licensor's delivery of written notice thereof; or (B) breaches any of its obligations under Paragraph 9(C), Paragraph 10 or Paragraph 11; or

(ii) Licensor and Licensee may both terminate the Software License(s), effective on written notice to the other party, if the other party materially breaches these Terms of Use, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.

K. Effect of Expiration or Termination.

Upon expiration or earlier termination of the Software License(s), Licensee's obligations under these Terms of Use, as they apply to Licensee's utilization of the Software, will also terminate. So long as Licensee continues to use the Website, Licensee will be bound to those provisions of these Terms of Use applicable to use of the Website alone. Without limiting Licensee's obligations under Paragraph 10 and Paragraph 11, Licensee shall cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing to the Licensor that the Software and Documentation has been deleted or destroyed. No expiration or termination will affect Licensee's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.

L. Limited Warranties And Warranty Disclaimer.

(i). Licensor warrants that: (i) at the time of delivery of the Software, or any other files made available for download off of the Website, including the Documentation, such Software or documents will not contain any virus or other malicious code, and (ii) the Software will perform in substantial accordance with the Documentation referenced in Paragraph 9(A)(iii) for a period of ninety (90) days from the Effective Date (“Warranty Period”) of the Software License(s). THE FOREGOING WARRANTIES DO NOT APPLY, AND LICENSOR STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.

(ii). The warranties set forth in this Paragraph 9(L) do not apply and become null and void if Licensee breaches any provision of the Terms of Use, or if Licensee, any Authorized User, or any other person provided access to the Software by Licensee, whether or not in violation of the Terms of Use, modifies or damages the source code or Software.

(iii). If, during the Warranty Period, any Software fails to comply with the limited warranties above described in Paragraph 9(L)(i), such failure is not excluded from warranty pursuant to Paragraph 9(L)(ii), Licensor shall, subject to Licensee's promptly notifying Licensor in writing of such failure, at its sole option, either: (i) repair or replace the Software, provided that Licensee provides Licensor with all information Licensor reasonably requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure; or (ii) if the Licensor is unable to repair or replace the Software within thirty (30) days of receiving a detailed description of the error, refund the Fees paid for such Software, subject to Licensee's ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the Software. If Licensor repairs or replaces the Software, the warranty will continue to run from the Effective Date and not from Licensee's receipt of the repair or replacement. The remedies set forth in this Paragraph 9(L)(iii) are Licensee's sole remedies and Licensor's sole liability under the limited warranty set forth in Paragraph 9(L)(i).

EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 9(L)(i), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 9(L)(i), LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

M. Force Majeure.

In no event shall Licensor be liable to Licensee, or be deemed to have breached these Terms of Use as they pertain to the Software, for any failure or delay in performing its obligations under the Terms of Use, if and to the extent such failure or delay is caused by any circumstances beyond Licensor's reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, epidemic, pandemic, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of these Terms of Use; and (vi) national or regional emergency; and (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities.

N. Export Regulation.

The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.

O. US Government Rights.

Each of the Documentation and the Software is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.

10. INTELLECTUAL PROPERTY OWNERSHIP

You acknowledge that Company owns all right, title, and interest, including all intellectual property rights, in and to the Website, Software, and Documentation. You acknowledge that these Terms of Use permit you to use the Website and the Software, according to the conditions set-forth in these Terms of Use.

11. FEEDBACK

If You, or any of your employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Website, Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. You hereby assign to Company on behalf of yourself, and your employees, contractors and/or agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Licensor is not required to use any Feedback.

12. INDEMNIFICATION.

You shall indemnify, hold harmless, and, at Company's option, defend Company from and against any Losses resulting from any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms of Use, your use of the Website, and/or your use of the Software, including any Third-Party Claim based on Your, or any Authorized User's: (i) negligence or willful misconduct; (ii) use of the Software or Documentation in a manner not authorized or contemplated by these Terms of Use; (iii) use of the Software in combination with data, software, hardware, equipment or technology not provided by Company or authorized by Company in writing; (iv) modifications to the Software not made by Company; or (v) use of any version other than the most current version of the Software or Documentation delivered to You, provided that You may not settle any Third-Party Claim against Company unless such settlement completely and forever releases Company from all liability with respect to such Third-Party Claim or unless Company consents to such settlement, and further provided that Licensor will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

13. LIMITATIONS OF LIABILITY.

IN NO EVENT WILL LICENSOR BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF USE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF USE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO LICENSOR UNDER THESE TERMS OF USE IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $5,000.00, WHICHEVER IS LESS.

14. MISCELLANEOUS TERMS

A. All Governing Terms.

The Terms of Use together with any other documents incorporated herein by reference and all related Exhibits, constitute the sole and entire agreement of the parties with respect to the subject matter of the Terms of Use and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms of Use, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, the Terms of Use, excluding its Exhibits; (b) second, the Exhibits to the Terms of Use as of the Effective Date; and (c) third, any other documents incorporated herein by reference.

B. Notices.

All notices, requests, consents, waivers, and other communications hereunder (each, a “Notice”) relating to the Software, must be in writing and addressed to the parties at the email addresses set forth on the Invoice (or to such other email address that may be designated by the party giving Notice from time to time in accordance with this Paragraph). All other notices may be submitted by You to the Company at the e-mail address listed below. Except as otherwise provided by the Terms of Use, a Notice is effective only upon receipt by the receiving party.

C. Amendment and Modification; Waiver.

No amendment to or modification of these Terms of Use is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in Terms of Use, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Terms of Use will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

D. Severability.

If any provision of the Terms of Use is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Terms of Use or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify the Terms of Use so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

E. Governing Law; Submission to Jurisdiction.

The Terms of Use are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to the Terms of Use, the Website, or the Software License(s) granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of Santa Barbara, and County of Santa Barbara, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

F. Assignment.

The Terms of Use, with respect to any Software License(s) granted, are binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

G. Equitable Relief.

Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Paragraph 10 or, in the case of Licensee, Paragraph 9(C), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

H. Survival.

This Section 14(H) and Sections 9(A), 9(H), 9(I), 9(J), 9(L) 10, 11, and 13, shall survive any termination or expiration of the Terms of Use of the Software License(s).

15. YOUR COMMENTS AND CONCERNS

This website is operated by:

Kent Informatics, Inc.
PO Box 3998
Santa Cruz, CA 95063 USA

All feedback, comments, requests for technical support, and other communications relating to the Website should be directed to: heidi@kentinformatics.com.

Last revised: September 20, 2021