Universal Invader(TM) Design Software

Universal Invader™ End-User License Agreement

CAREFULLY READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR INSTALLING OR USING THE SOFTWARE (AS HEREINAFTER DEFINED).

This End-User License Agreement is a legal agreement ("Agreement" or "EULA") between you ("You", "Your", or "End-User"), and Third Wave Technologies, Inc., a Delaware corporation with a principal place of business at 502 South Rosa Road, Madison, Wisconsin, 53719 ("TWT"); together (the "Parties").

YOU ACKNOWLEDGE AND AGREE THAT BY CLICKING THE "I ACCEPT" BUTTON, YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT AND ARE ACCEPTING ALL OF THE TERMS OF THIS AGREEMENT AND AGREEING TO BE BOUND BY THE SAME. YOU HEREBY WAIVE ANY RIGHTS UNDER ANY LAWS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS. IF YOU DO NOT AGREE TO BE BOUND OF EACH OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE AND MUST CLICK THE "I DECLINE" BUTTON.

1. DEFINITIONS

"Software" means computer software, whether downloaded or installed by the End-User or accessed by the End-User via the Internet ("Downloaded Version," "Web Version," and "Media-Derived Version", as defined below), and may include "online" or electronic documentation. An amendment or addendum to this EULA may accompany the Software as delivered or downloaded.

"Documentation" means the softcopy documentation provided by TWT with the Software, such as softcopy user manuals and online help, and any hardcopy documentation provided by TWT with the Software, as applicable.

"Downloaded Version" means a copy of the Software which is downloaded by You via the internet from TWT's servers and installed on Your computer, in accordance with and subject to the terms of this Agreement.

"Web Version" means a copy of the Software which is accessed by You via an internet connection, but is not downloaded, copied, or otherwise installed on Your computer.

"Media-Derived Version" means a copy of the Software which is installed by You on your computer from a CD, DVD, or other media provided to You by TWT in accordance with and subject to all the terms and provisions of this agreement.

2. GRANT OF SOFTWARE LICENSE / RESTRICTIONS ON USE

(a) TWT grants to You a limited, non-exclusive, non-transferable license to use the Software solely for End-User's own use and for the purposes described in the accompanying Documentation, subject to and in complete accordance with all the terms, provisions, and conditions of this Agreement.

(b) You acknowledge and agree that the license granted hereunder expressly excludes the right to directly or indirectly sell, assign, rent, lease, sublicense, distribute, or otherwise grant rights to third parties in or to the Software, whether with or without charge. Any breach by You of this Article 2 (b) will result in the automatic and immediate termination of Your license rights hereunder.

(c) You agree not to reverse engineer, decompile, disassemble, or otherwise attempt to discover or manipulate the source code of the Software.

(d) You agree not to create or otherwise prepare any derivative works based on the Software or any Documentation.

(e) You agree not to upload, in connection with Your use of the Software or otherwise, any data containing worms, viruses, Trojan Horses, or other malicious code to TWT's servers.

(f) You agree that You are solely responsible for any results that arise from Your use of the Software, including but not limited to the fact that any given assay may not work or produce the desired results even if the instructions provided by the Software are followed exactly.

(g) Except as may be permitted in writing from TWT, You shall not provide or otherwise make available the Software or any copy thereof to any third person.

(h) TWT reserves all rights in and to the Software not specifically granted hereunder.

3. INTELLECTUAL PROPERTY

(a) You acknowledge and agree that any and all intellectual property rights to or arising from the Software or use thereof, including but not limited to all patents, copyrights, trademarks and trade secrets, ideas, concepts, know-how and technology contained therein, are and shall remain the exclusive property of TWT. Nothing in this Agreement shall transfer any such intellectual property rights to, or vest any title in, You under this Agreement or otherwise.

(b) You agree that You shall not remove, obscure, make illegible, or otherwise alter any notices or proprietary rights statements affixed in or otherwise connected to the Software.

(c) This Agreement grants You no intellectual property rights whatsoever in or to the Software or any other intellectual property rights of TWT.

(d) Title to any Invader Improvement Invention, regardless of whether it is made solely by End-User or TWT, or jointly by End-User and TWT, shall be owned solely by TWT. Upon request by TWT, End-User will assign, and does hereby assign to TWT all of End-User's right, title and interest in and to any Invader Improvement Invention. Furthermore, upon TWT's request, End-User will execute and deliver to TWT such assignments and other documents and take such other actions as TWT reasonably requests to confirm and evidence TWT's ownership of such Invader Improvement Invention. For purposes of this Agreement, "Invader Improvement Invention" shall mean any and all discoveries, inventions and other subject matter (whether patentable or not), which are derivatives of, or improvements to, TWT's Invader® technology platform and/or Cleavase® enzyme technology, embodied in patent numbers US 5,994,069, US 6,090,543, US 7,011,944, WO 02/070755, US 20030186238, US 20050164177, US 20050048527 and/or US 20050074788, any and all continuations or divisionals therefrom, and/or any intellectual property rights therein.

(e) If the United States government (through any of its agencies or otherwise) has funded research, during the course of or under which any of the Invader Improvement Inventions were or are conceived or made, the United States government is entitled under the provisions of 35 U.S.C. §§200-212 and applicable regulations of Chapter 37 of the Code of Federal Regulations, to a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced the Invader Improvement Invention for governmental purposes.

4. CONFIDENTIAL INFORMATION AND DATA STABILITY

(a) TWT will use its commercially reasonable efforts to keep in confidence the content of any End-User online queries made using the Software. End-User shall own all right, title, and interest in any data and data files used with the Downloaded Version of the Software or uploaded to TWT's servers via the Internet using the Web Version of the Software.

(b) You agree that the Software contains proprietary and confidential information of TWT, and will at all times use commercially reasonable efforts to protect and maintain the proprietary and confidential nature of such information from disclosure to any third parties.

(c) The End-User is solely responsible for the quality, security and functionality of any data link and data transmission between End-User and TWT's servers.

5. LIMITED WARRANTIES; DISCLAIMER OF WARRANTIES

(a) You represent and warrant that You have the full power and authority to enter into this Agreement and to comply with each of its terms.

(b) TWT makes no representation or warranty with regard to loss, corruption or impairment of End-User data arising from any hardware or Software failures. TWT shall not provide, nor make an effort to provide, any functionality for End-User to store or maintain any data on TWT's servers.

(c) NO WARRANTIES: EXCEPT AS SET FORTH HEREIN, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TWT HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SOFTWARE AND/OR DOCUMENTATION, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. TWT DOES NOT WARRANT THAT THE SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, OPERATE ACCURATELY OR IN AN ERROR-FREE MANNER OR WITHOUT INTERRUPTION. NO ORAL, WRITTEN OR ELECTRONIC INFORMATION, DOCUMENTATION, ADVICE OR OTHER COMMUNICATION GIVEN BY TWT AND/OR ITS AFFILIATES TO THE END-USER SHALL CREATE ANY WARRANTY WITH RESPECT TO THE SOFTWARE, ANY RESULTS PRODUCED THROUGH USE OF THE SOFTWARE, OR OTHERWISE.

(d) SPECIAL DISCLAIMER: WITHOUT LIMITING THE FOREGOING, TWT EXPRESSLY DISCLAIMS ANY WARRANTIES AS TO THE FUNCTIONALITY, USABILITY, OR CONDITION OF ANY RESULTS PRODUCED THROUGH USE OF THE SOFTWARE BY THE END-USER. ALL OF THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITIES SET FORTH HEREIN SHALL APPLY EQUALLY TO ANY OLIGONUCLEOTIDES PREPARED OR OTHERWISE OBTAINED BY YOU, OR ANY INVADER® OR UNIVERSAL INVADER™ REACTIONS PUT TO USE BY YOU USING SAID OLIGONUCLEOTIDES. WITHOUT LIMITING THE FOREGOING, TWT MAKES NO REPRESENTATION AS TO THE FUNCTIONALITY OF ANY INVADER® OR UNIVERSAL INVADER™ REACTIONS PUT TO USE BY YOU USING SAID OLIGONUCLEOTIDES. FURTHERMORE, TWT MAKES NO REPRESENTATIONS OR WARRANTIES, WHICH ARE HEREBY DISCLAIMED, WITH REGARD TO ANY CLAIM OF INFRINGEMENT AGAINST YOU BY ANY THIRD PARTY ARISING OUT OF THE USE OR POSSESSION OF ANY OF SAID OLIGONUCLEOTIDES, AND TWT SHALL NOT BE LIABLE TO ANY EXTENT WHATSOEVER FOR ANY SUCH CLAIM. YOU HEREBY ACKNOWLEDGE AND AGREE THAT ANY DETERMINATION OF FREEDOM-TO-OPERATE, AND/OR EXECUTION OF A LICENSE AGREEMENT WITH ANY THIRD PARTY TO MAKE, HAVE MADE, POSSESS, SELL, OFFER FOR SALE, IMPORT, EXPORT, OR USE ANY OLIGONUCLEOTIDES, ALONE OR IN ANY COMBINATION, IS EXPRESSLY AND SOLELY YOUR RESPONSIBILITY. CERTAIN APPLICATIONS AND/OR USES OF THIS SOFTWARE, AND/OR THE OLIGONUCLEOTIDES PREPARED BY YOU MAY BE COVERED BY PATENTS ISSUED TO PARTIES OTHER THAN TWT AND APPLICABLE IN CERTAIN COUNTRIES. BECAUSE THIS END-USER LICENSE AGREEMENT DOES NOT INCLUDE A LICENSE TO PERFORM ANY SUCH PATENTED APPLICATIONS, USERS OF THIS PRODUCT MAY BE REQUIRED TO OBTAIN A PATENT LICENSE DEPENDING UPON THE PARTICULAR APPLICATION AND COUNTRY IN WHICH THE PRODUCT IS USED. TWT DOES NOT ENCOURAGE OR SUPPORT THE PRACTICE OR USE OF ANY PATENTED PROCESS OR COMPOSITION WITHOUT A LICENSE.

6. LIMITATION OF LIABILITY

(a) The Software is being provided to You free of charge. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT TWT, ITS AFFILIATES, AND THEIR SUPPLIERS AND SUBCONTRACTORS SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE SOFTWARE.

(b) IN NO EVENT SHALL TWT, ITS AFFILIATES, OR THEIR SUPPLIERS AND SUBCONTRACTORS BE LIABLE TO YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT, PRODUCTS LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM INTERRUPTION OF BUSINESS OR LOSS OF ANTICIPATED PROFITS, REVENUES, DATA, OR BENEFITS, EVEN IF TWT OR ITS AFFILIATES OR SUPPLIERS OR SUBCONTRACTORS HAVE BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.

(c) END-USER SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND EACH OF TWT, AND ITS DIRECTORS, OFFICERS AND EMPLOYEES, ITS AFFILIATES, AND THE SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING (TOGETHER THE "TWT INDEMNITEES"), FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, SETTLEMENTS, CLAIMS, ACTIONS, SUITS, PENALTIES, FINES, COSTS OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND OTHER EXPENSES OF LITIGATION)(ANY OF THE FOREGOING, A "CLAIM") INCURRED BY ANY TWT INDEMNITEE, BASED UPON A CLAIM OF A THIRD PARTY ARISING FROM OR OCCURRING AS A RESULT OF: (1) END-USER'S EXPLOITATION OR USE OF SOFTWARE OR ANY OLIGONUCLEOTIDES OR OLIGONUCLEOTIDE ASSAYS, OR, WITHOUT LIMITATION, ANY OTHER TWT TECHNOLOGY; OR (2) BREACH OF ANY WARRANTIES BY END-USER IN ARTICLE 5; OR (3) BREACH OR FAILURE TO PERFORM OR COMPLY WITH ANY PROVISION, SECTION, ARTICLE, CLAUSE, DUTY, OBLIGATION OR REQUIREMENT OF THIS AGREEMENT; OR (4) VIOLATION BY END-USER OF ANY APPLICABLE LAWS OR REGULATIONS; OR (5) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF END-USER IN THE PERFORMANCE OF ITS OBLIGATIONS, OR EXERCISE OF ITS RIGHTS, UNDER THIS AGREEMENT.

(d) YOUR ONLY REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SOFTWARE IS TO UN-INSTALL AND CEASE ALL USE OF THE SOFTWARE.

7. TERM AND TERMINATION; SURVIVAL

(a) This Agreement shall be effective as of the date You click the "I ACCEPT" button and will remain effective until terminated by either TWT or You as set forth below.

(b) Either party may terminate this Agreement and the rights granted hereunder upon material breach by the other party of any provision of this Agreement. Upon termination of this Agreement for any reason, You acknowledge and agree that all rights licensed hereunder shall immediately terminate, that You will cease any and all use of the Software, and that you will un-install the Software from all hard drives and other storage media and destroy all copies of the Software in Your possession or under your control, including any hard copies of any Documentation.

(d) TWT's confidentiality obligations under Article 4(a) of this Agreement shall survive the termination of this Agreement, however the survival of such obligation shall be limited to a period of two (2) years from the date of termination.

8. MISCELLANEOUS

(a) The rights granted to You under this Agreement are personal to You and may not be sublicensed, assigned, or otherwise transferred, whether by operation of law, change of control, or any other manner, without the prior written consent of TWT. However, you may assign this Agreement, without TWT's consent, to an entity that acquires all or substantially all of Your business operations or assets, whether by merger, reorganization, acquisition, sale, or otherwise. The terms and obligations of this Agreement shall remain binding on and inure to the benefit of your permitted successors and assigns.

(b) The agreement shall be governed by the substantive laws of the State of Wisconsin without regard to any conflict of law provisions. Any legal proceedings arising out of or relating to this Agreement will be subject to the state and federal courts in Madison, Wisconsin. You hereby waive any objections as to venue in those courts and affirmatively submit to the jurisdiction of those courts.

(c) This Agreement constitutes the entire agreement between You and TWT relating to the Software, and supersedes and replaces all prior oral and written communications, proposals, representations, and agreements relating thereto.

(d) The failure of TWT to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.

(e) This Agreement may not be waived, altered, amended or modified except in a writing, directly referencing the Agreement, and signed by authorized representatives of both parties.

(f) It is expressly agreed that the parties are acting hereunder as independent contractors. Under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose.

(g) If any provision hereof should be held invalid, illegal, or unenforceable in any jurisdiction, the Parties shall negotiate in good faith a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the Parties and all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the Parties hereto as nearly as may be possible. Such invalidity, illegality or unenforceability shall no affect the validity, legality, or enforceability of such provision in any other jurisdiction.

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS, AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE "I ACCEPT" BUTTON AND/OR CONTINUING TO INSTALL THE SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS.

I ACCEPT: I agree to be bound by the terms and conditions of this End-User License Agreement.

I DECLINE: I decline to be bound by the terms and conditions of this End-User License Agreement.

Queries regarding this End-User License Agreement should be directed to

Legal Department, Third Wave Technologies, Inc. 502 South Rosa Road, Madison, Wisconsin 53719. (608) 273-8933.