Download and use license agreement

Subject to your acceptance of the terms and conditions of this Download and Use License Agreement ("Agreement") and other documents referenced herein, Affymetrix, Inc. grants the undersigned ("you") the following license to download and use certain data from the Affymetrix.com web site (the "Site").

1. Definitions
a."Data" means data and other information, which may include *.DAT, *.CEL and *.CHP files, relating to GeneChip genotyping array data for 5 Ceph trios (15 individuals from the CEPH families); 4 African Americans; 2 Asians; 8 Caucasians, that are made available by Affymetrix for download through the Site.

2. Grant of license
Subject to the terms of this Agreement, and the Site's Terms of Use which are incorporated herein by reference, Affymetrix grants you a royalty-free, nonexclusive, nontransferable, nonsublicensable license to (i) download the Data from the Site (using a URL to be provided to you by Affymetrix), and (ii) internally use the Data to develop, validate and test your own software application(s) ("Your Software") capable of interfacing with the Data, provided that Your Software contains significant and primary functionality independent of the Data or any know-how embodied therein.

3. Redistribution
You are not authorized to redistribute the Data in whole or in part.

4. Restrictions on data
You shall not: (i) modify or create derivative works of the Data (except for reformatting that does not alter the content or remove any identification, trademark, copyright or other notices); (ii) distribute, market, rent, lease or transfer to any third party the Data, or use the Data in any service bureau, time sharing or rental arrangement or otherwise use or allow others to use the Data to or for the benefit of third parties (except as expressly provided in Section 2); (iii) use the Data in a clinical diagnostic setting where data from an individual's sample is transferred to his or her caregiver, or in connection with any diagnostic product or service; (iv) download, upload, or otherwise export or re-export the Data or any underlying information or technology (or direct product thereof) except in full compliance with all United States and other applicable laws and regulation; (v) use the Data for any purpose that is unlawful or prohibited by this Agreement or the Site's Terms of Use, or (vi) remove any identification, trademark, copyright or other notices.

5. Marks
No license, right, or interest in any Affymetrix trademark, trade name, service mark, or other designation is granted hereunder. Without limiting the foregoing, you agree not to use any Affymetrix trademark, trade name, service mark, or other designation (i) to imply sponsorship or endorsement by Affymetrix, (ii) to disparage Affymetrix, its products or services, (iii) in conjunction with any products or services that in Affymetrix' sole judgment may diminish or damage the goodwill in Affymetrix' marks, (iv) in such a way that the Affymetrix Marks are displayed more prominently than the name/logo of your company, or (v) to infringe Affymetrix' intellectual property rights or violate any state, federal or international law. You further agree to indemnify and defend Affymetrix and its licensors from and against any claim, lawsuit or related action (including attorneys fees and costs) that arises or results from any such activities.

6. Intellectual property rights
Except as expressly provided in this Agreement, all rights to Affymetrix' intellectual property are specifically reserved. Subject to your limited license to use the Data as provided above, you agree that Affymetrix owns all copyright, patent, trademark, trade secret, and all other intellectual property rights in the Data and any modifications or enhancements to the Data. You agree that Affymetrix at its sole discretion may incorporate as its own any and all modifications or enhancements you make to the Data and any feedback or guidance you provide regarding the Data. You hereby assign to Affymetrix all rights, title and interest in such modifications, enhancements, feedback, or guidance and agree to execute all documents necessary to implement such assignment.

7. No reverse engineering
You agree not to attempt to analyze or review the Data except as provided herein or reverse engineer, disassemble, decompile or similarly manipulate or attempt to reconstruct or discover any source code or underlying ideas or algorithms for all or any portion of the Data for any purpose.

8. No implied license
You acquire no rights or licenses, implied or otherwise, by virtue of this Agreement except those expressly granted herein. Without restricting the previous sentence, nothing herein shall be construed as a right or license to make, have made, use, sell, offer to sell, import, lease or distribute probe arrays or related products or services.

9. No patent license
Nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any license or right under any patent, whether or not the exercise of any right herein granted necessarily employs an invention of any existing or later issued patent. Notwithstanding the above, you shall have the right to exercise all rights expressly granted pursuant to this Agreement.

10. No warranty
The Data is provided "AS IS" and "AS AVAILABLE" and Affymetrix makes no warranty as to the Data. Affymetrix shall have no obligation under this Agreement to correct any bugs, defects or errors in the Data or to otherwise support or maintain the Data. Support services are currently available from Affymetrix which you may purchase under separate agreement with Affymetrix at its then-current rates, provided however that Affymetrix shall not be obligated hereunder to provide any such services and reserves the right to discontinue the services at any time without notice to you. You further acknowledge and agree that Affymetrix may modify or cease providing or supporting the Data at any time with or without notice and the entire risk of using the Data, including without limitation the risk of using the Data in connection with Your Software and other data, is borne by you. AFFYMETRIX DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OF INFORMATION, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE/NONINFRINGEMENT, RELATED TO THE DATA, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS AGREEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE DATA AND THE SITE.

11. Limitation of liability and remedies
YOU AGREE THAT AFFYMETRIX SHALL NEITHER BE RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR THE USE, THE RESULTS OF THE USE, OR THE INABILITY TO USE THE DATA OR THE SITE. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM RELATING TO THE FOREGOING IS TO STOP USING THEM. IN ANY EVENT, AFFYMETRIX' AGGREGATE LIABILITY HEREUNDER FOR ALL CLAIMS AND EVERY FORM OF DAMAGES SHALL NOT EXCEED FIFTY DOLLARS (U.S. $50.00).

12. Not approved
The Data is for research use only and not for use in diagnostic procedures. The Data has not been evaluated or approved by the FDA or any non-U.S. equivalent and are not provided or otherwise transferred for use in any experiment related to human subjects requiring regulatory approval. You agree not to use the Data in any experiment related to human subjects requiring regulatory approval and agree to defend, at your expense, any claim, lawsuit or related action brought against Affymetrix alleging personal or other injuries caused by the Data or use thereof.

13. Indemnity
You agree to indemnify and defend Affymetrix from any claim (including attorneys fees and costs) arising from your (a) use of Data or the Site, (b) violation of any third party right, or (c) breach of this Agreement or the Site's Terms of Use. You agree to cooperate as fully as reasonably required in the defense of any claim. Affymetrix reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification under this section and, in any event, you agree not to settle any such matter without the prior written consent of Affymetrix.

14. Term; termination of license
The term of this Agreement shall be one (1) year from the date set forth below, unless earlier terminated as provided herein. Affymetrix may terminate this Agreement immediately if you (i) are in material breach of any of its provisions, or (ii) fail to comply with the terms and conditions applicable to the Site or any product(s) to which the Data pertains. Affymetrix has the right to inspect Your Software from time-to-time to ensure compliance with this Agreement. In the event this Agreement is terminated or expires, you must remove the Data and all references to Affymetrix from Your Software within sixty (60) days of written request by Affymetrix.

15. General
This Agreement and the Site's Terms of Use constitute the entire agreement between you and Affymetrix with respect to the subject matter hereof and are the final, complete and exclusive statement of the terms of the Agreement, superseding all prior written and oral agreements, understandings and undertakings between you and Affymetrix relating to the subject matter hereof. Modifications may be made only in writing and signed by an authorized corporate officer of Affymetrix. The waiver of any term or condition or any breach thereof shall not affect any other term or condition of this Agreement. You may not assign this Agreement without the prior written consent of Affymetrix. This Agreement shall be governed by and construed according to the laws of California, without regard to conflict of law provisions. In the event that any provision of this Agreement or portion thereof is found to be illegal or unenforceable, the Agreement shall be construed without the unenforceable provision or portion thereof.