Latent Co. EULA

The following terms of this agreement (hereinafter “EULA”) govern your use of Latent Company (hereinafter “Latent,” “we,” “us,” “our”) software, including but not limited to the Aphera product, applications, scripts, instruction sets, and any related documentation (collectively referred to hereinafter as “Software”). By using our Software, you agree to these terms. If you have entered into another agreement with us regarding specific Software, the terms of that specific agreement shall be controlling in case of a conflict.

For more information regarding use of our products and website, please see our Terms of Use. For more information regarding our Privacy practices, please see our Privacy Policy. By using the Software, you agree to the terms and acknowledge your understanding of our Terms of Use and Privacy Policy.

1. Use of Software. The Software is licensed to you, not sold to you, and only in accordance with these terms contained in this EULA and other applicable agreements between you and Latent.

a. General License and Intellectual Property Terms. Subject to compliance with the terms of this EULA and other applicable agreements between you and Latent, we grant you a non-exclusive license to install and use the currently released version of the Software upon purchase of the Software by you, as well as any updates to the Software released within one calendar year from the purchase of a General License. Latent, and our licensors as appropriate, remain the sole owner of all right, title, and interest in the Software. Latent reserves all rights not granted under this EULA.

b. Subscription License. Subject to compliance with the terms of this EULA and other applicable agreements between you and Latent, we grant you a non-exclusive license to install and use any updated versions of the Software released during the duration of a Subscription purchased by you. For avoidance of doubt, if a Subscription lapses, we continue to grant you a non-exclusive license to install and use any updated versions of the Software that were released during the period of an active subscription by you, but do not grant you any license whatsoever to use any future updated versions of the Software which may be released by us after your Subscription lapses. See our Terms of Use for more details on Subscriptions.

c. Trial License. Where we designate Software as “Trial Software,” software provided to you by us at our sole discretion for purposes of evaluating the software, you may install and use the Trial Software only during the evaluation period allowed in the terms of that Trial Software and only for the purpose of evaluating the Software.

2. Restrictions, Requirements, Acceptable Use.

a. Proprietary Notices. You must ensure that any permitted copy of the Software that you make contains all of the same copyright and other proprietary notices that appear on said Software.

b. Restrictions on Use of Software. Unless otherwise permitted by this EULA or a related agreement with us, you may not.

i. Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of any Software;

ii. Modify, port, adapt, translate, or otherwise change the Software;

iii. Circumvent technological measure(s) intended to control access to the Software or develop, distribute, or use with the Software any products designed to circumvent technological measure(s) intended to control access to the Software.

iv. Use Software made available as part of a Subscription License or Trial License beyond the scope of the license you have paid for;

v. Rent, lease, sell, sublicense, assign, or otherwise transfer your rights in the Software or any portion of the Software;

vi. Authorize the Software, or any portion of the Software, to be copied onto another device not covered by your license;

vii. Use or offer the Software on a service bureau basis; or

viii. Use the Software in any manner which otherwise violates our Terms of Use.

c. Payment and License Validation. You understand that if Latent does not receive payment for a license or cannot validate a license for any reason, the Software may be rendered inactive without notice until Latent receives said payment or can validate the license for the Software. You are responsible for providing Latent all assistance it may request in validating a license.

3. Activating Software. In order to use the Software, you may be required to take steps to validate or activate your Software and/or any related subscriptions. Where you fail to activate, register, or validate your Software and/or any related subscriptions it may result in reduced functionality, inoperability of the Software, or a termination or suspension of your license and/or subscription.

4. Fraudulent/Unauthorized Use. If Latent determines, in our sole discretion, that there has been fraudulent use, use in violation of this EULA or our Terms of Use, or any other unauthorized use of the Software, then Latent may terminate or suspend use of the Software and/or any related subscription at Latent’s sole discretion. If the Software was sold to you through a reseller, such actions by Latent may be coordinated with that reseller.

5. AS-IS PRODUCT, DISCLAIMER OF WARRANTIES. THE SOFTWARE IS PROVIDED TO YOU ON AN AS-IS BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LATENT DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS INCLUDES, BUT IS NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS, AND NON-INFRINGEMENT. WE ALSO DO NOT WARRANT THAT ANY SOFTWARE OR SUBSCRIPTION (A) WILL BE FREE OF ERRORS, (B) WILL MEET YOUR REQUIREMENTS, © THE RESULTS OBTAINED FROM THE USE OF SOFTWARE WILL BE EFFECTIVE, ACCURATE, OR RELIABLE, (D) THE QUALITY OF THE SOFTWARE WILL MEET YOUR EXPECTATIONS, OR (E) ANY ERRORS OR DEFECTS IN THE SOFTWARE WILL BE CORRECTED.

6. LIMITATION OF LIABILITY. WE ARE NOT LIABLE TO YOU OR ANYBODY ELSE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER. THIS IS TRUE EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. WE ARE NOT LIABLE FOR ANY DAMAGES RESULTING FROM THE LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT FORESEEABLE. WE ARE NOT LIABLE BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, ANY TORTIOUS ACTION, OR ANY OTHER THEORY OR CLAIM ARISING OUT OF OR IN CONNECTION TO YOUR USE OF OR ACCESS TO THE SOFTWARE.

a. OUR MAXIMUM TOTAL LIABILITY IN ANY MATTER ARISING OUT OF OR RELATED TO THIS EULA IS LIMITED TO (1) US$500.00 (FIVE HUNDRED UNITED STATES DOLLARS) OR (2) THE AGGREGATE AMOUNT PAID FOR LATENT’S SERVICES IN THE PAST CALENDAR YEAR, WHICHEVER IS LESS. THIS LIMITATION WILL APPLY EVEN IF LATENT HAS BEEN ADVISED OF THE POSSIBILITY OF LIABILITY EXCEEDING THIS AMOUNT.

b. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

7. Remedies of Users.

a. Remedy Available. The sole and exclusive remedy for any failure or non-performance of any Software and/or anything supplied in connection with Software, shall be for Latent to use commercially reasonable efforts to effectuate an adjustment or repair of the applicable Software.

b. Time Limit on Actions Against Latent. BY USING THE SOFTWARE, YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO (1) USE OF THE SOFTWARE OR (2) THIS EULA MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.

8. Termination by You. You may stop using the Software or related subscription at any time. However, refunds are subject to our Terms of Use and/or the terms of our reseller.

9. Termination by Latent. Where Latent terminates these terms for any reason other than cause, we will make reasonable efforts to provide at least thirty (30) days notice prior to said termination. In providing said notice, we will use the contact information you provide to us. It is your responsibility to ensure that all contact information you provide to us is up to date and accurate. We may terminate at any time for cause as stated in this EULA and/or any related agreements or for any of the following reasons:

a. If you breach any provision of this EULA, our Terms of Use, or any related agreements;

b. You fail to make timely payment for the Software or any related subscription;

c. We are required to do so by applicable law.

10. Survival. There are many provisions within this EULA which by their nature should extend past your cancellation or our termination of this EULA. All such terms shall survive cancellation or termination. These terms include but are not limited to: (1) ownership provisions, (2) warranty disclaimers, (3) indemnity, (4) dispute resolution, and (5) limitation of liability.

11. Export Control Laws. The Software and your use of the Software may be subject to laws, restrictions and regulations, which may govern the import, export, and use of the Software. You agree to comply with all applicable laws, restrictions, and regulations.

12. EEA Specific Terms. If you are an individual, not a business, company, or organization, who obtained the Software in the European Economic Area (EEA) and usually resides in the EEA, then the following additional terms apply. Your warranty period with regard to the Software is two (2) years. Our entire liability related to any warranty claim, and your sole and exclusive remedy based on any warranty claim, shall be limited to either, at the sole discretion of Latent, (a) support of our Software based on your warranty claim; (b) replacement of our Software; or © a refund of prepaid and unused fees paid for the Software and/or any related subscription. Furthermore, while the terms of this EULA shall apply to any claims for damages you may make, Latent will be liable for direct losses that are reasonably foreseeable in the event of our breach of this EULA. You should still take all reasonable measures to avoid and reduce damages, including by making backup copies of the Software and related data. Nothing in this EULA or any related agreement shall limit any non-waivable rights you may enjoy under the law. Exclusively in respect to individuals covered by this section, nothing in these terms limit our liability for gross negligence, for our or our employees’ intentional misconduct, or for death or personal injury caused by our negligence.

13. Auditing License Compliance. If you are a business, company or organization, then Latent retains the right to, no more than once annually and upon reasonable notice and confidentiality terms, appoint our own auditor or an independent auditor to verify that your installation and use of the Software and any related subscriptions is in conformity with this EULA and any other related agreements with us. You will also, within 30 days of receiving a request from us, provide us with any records or documentation necessary to verify conformity in your use of any Software and any related subscriptions. If such an audit reveals unpaid fees exceeding 5% of the payable license and subscription fees, then you will also pay for Latent’s costs of conducting the verification outlined in this section.

14. Dispute Resolution, Applicable Law, Choice of Venue. Any controversy or claim arising under, out of, or in relation to this EULA or the use of the Software, or any breach or asserted breach thereof, shall be settled by binding arbitration in Alameda County, California, with a preference for remote arbitration where practicable, subject to the conditions and exclusions of this section.

You hereby acknowledge and agree that you and Latent are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Latent otherwise agree in writing, any arbitration will be conducted in English by and in accordance with the rules and procedures of JAMS, as modified by this section. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. Unless otherwise agreed by the parties, the arbitration panel shall consist of one arbitrator chosen in accordance with the rules of JAMS. Any such arbitrator shall be knowledgeable in the subject area in which the dispute arises. All discovery shall be completed within sixty (60) days following the appointment of the arbitrator. Each party shall be entitled to representation by counsel, to appear and present written and oral evidence and argument and to cross-examine witnesses presented by the other party, provided that, where appropriate, the arbitrator may receive testimony via telephone, video or other electronic means of communication. The arbitration award shall be in writing. The award of the arbitrator shall be final and binding on the parties hereto and may be enforced in any court of competent jurisdiction. The parties waive any right they may have to an appeal of the arbitrator’s decision and/or award. The prevailing party in any action or proceeding to enforce its rights under this EULA or related agreement shall be entitled to recover reasonable attorneys’ fees and other reasonable costs, including fees of the arbitrator and the JAMS, incurred in the action or proceedings. In no event shall the arbitrator award punitive or exemplary damages. The parties waive any right they may have to an appeal of the arbitrator’s decision and/or award. Each party retains the right to seek judicial assistance: (i) to compel arbitration, (ii) to obtain interim measures of protection prior to or pending arbitration, (iii) to seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information; (iv) for any claims of infringement or misappropriation of patent, copyright, trademark, or trade secrets; and (v) to enforce any decision of the arbitrator, including the final award.

a. Applicable Law. This EULA shall be construed in accordance with and governed by the laws of the United States and the State of California, without reference to rules regarding conflicts of law.

b. Exclusions. You hereby acknowledge the following exclusions to these terms regarding arbitration.

i. You and Latent both retain the right to bring an individual action in small claims court

ii. You and Latent both retain the right to seek equitable relief in a court, chosen in compliance with this EULA, solely to prevent the actual or threatened infringement, misappropriation or violation of a party’s intellectual property rights, including but not limited to copyrights, trademarks, trade secrets, and patents.

c. Jurisdiction and Choice of Venue. You acknowledge that all claims or controversy shall be settled by arbitration according to this Section. However, you additionally hereby irrevocably consent to the exclusive jurisdiction of the state or federal courts located in the Northern District of California, in all disputes arising out of or related to the use of the Software or this EULA, that, for any reason, are not arbitrated.

15. Notice. Unless otherwise specified in another section of this EULA, all notices under this EULA will be in writing as defined in this EULA.

a. Notice Duly Given by Latent. Notice by us to you will be considered to have been duly given at the time when (1) transmitted by email with no indication of failed transmission; (2) received, if personally delivered or sent by certified or registered mail, return receipt requested; (3) the day after it is sent, if sent for next day delivery or recognized overnight delivery service; or (4) transmitted electronically to you, such as through a messaging or alert feature.

b. Notice Duly Given to Latent. Notice by you to us will be considered to have been duly given at the time when it is received, if personally delivered or sent by certified or registered mail, return receipt requested.

c. Contact Address: You may contact us at the following address:

Latent Company
1569 Solano Ave.
#409
Berkeley, CA 94707

16. Miscellaneous.

a. Entire Agreement. This EULA, and the terms of policies and agreements incorporated by reference (through names of documents and web links) are the whole and complete agreement between you and Latent.

b. Headings Not Binding. The headings to each section of these terms are not legally binding, nor do they have any effect on the proper interpretation of this EULA. They are exclusively to aid in ease of use. THEY SHOULD NOT BE READ IN LIEU OF READING THE FULL EULA.

c. Force Majeure. Where Latents fails to perform our obligations under this EULA, we are not liable where such failure results from any cause beyond our reasonable control. Such situations include but are not limited to: acts of god, global pandemics, or mechanical, electronic or communications failure or degradation.

d. Waiver.

i. Failure to Exercise a Right Not a Waiver. Even if Latent, or any of our employees, representatives, or other affiliates fail to exercise any right or provision of this EULA, this failure does not waive our right to later enforce any part of this EULA.

ii. Waiver Does Not Imply Future Waiver. No waiver of any breach of any provision of this EULA shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof.

iii. Requirements of a Waiver. In order for any waiver of compliance with this EULA to be effective, it must be made in writing and signed by an authorized representative of the waiving party.

e. Severability. If any provision of this EULA is found to be unenforceable or invalid, that provision will be limited or eliminated, in that jurisdiction, to the minimum extent necessary so that this EULA will otherwise remain in full force and effect and fully enforceable.