Last Updated: 6/28/2017
BY USING ANY ELEMENT OF THE BENCHSCI PLATFORM (INCLUDING THE BENCHSCI WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 12. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE BENCHSCI PLATFORM. CUSTOMER REPRESENTS AND WARRANTS TO BENCHSCI THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE BENCHSCI PLATFORM ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO BENCHSCI THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
- “Customer Data” means any data, information, content, records and files that Customer loads, transmits to or enters into the BenchSci Platform or otherwise provides to BenchSci, including any and all intellectual property rights in any of the foregoing.
- “De-Identified Data” means all Customer Data that is not Personal Information.
- “Derivative Works” means any and all Modifications, created or developed from, using or on the basis of any Customer Data by BenchSci.
- “Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations, adaptations, and results from processing (including analyses, reports, databases, datasets, recommendations, and visual representations) in any form or medium, and “Modify” has a corresponding meaning.
- “Personal Information” means information about an identifiable individual.
- “BenchSci Platform” means: (i) the BenchSci Website; and (ii) all software, hardware, and systems used by BenchSci to host and make the BenchSci Services available for Customer’s use.
- “BenchSci Services” means the services made available by BenchSci to Customer, including services that facilitate the search for anti-bodies using BenchSci’ database of peer-reviewed publications describing the testing and usage of anti-bodies and the provision of related information related to the purchase of such anti-bodies.
- “BenchSci Website” means any websites used by BenchSci to make the BenchSci Platform available, and may include the website located at BenchSci.com.
- BenchSci Platform Availability.
- Provisioning of the BenchSci Platform. Subject to Customer’s compliance with this Agreement, Customer may use the BenchSci Platform.
- Limitation, Suspension, or Termination of Access; BenchSci Platform Upgrades and Scheduled Downtime. BenchSci may, at its discretion and without notice: (i) suspend, terminate, or limit Customer’s use of the BenchSci Platform or any component thereof; or (ii) update, upgrade, enhance or otherwise Modify the BenchSci Platform.
- Rights and License Grants.
Rights Granted in connection with Customer Data without a Paid/Commercial Use agreement. Where Customer Data is loaded, transmitted to or entered into the BenchSci Platform or otherwise provided to BenchSci under an account without a Paid/Commercial Use agreement, in accordance with section 8 below, and Ssubject to the terms and conditions of this Agreement, Customer Data will be used for the purposes of rendering service to Customer under this Agreement and improving the BenchSci Platform and will be shared with third parties using the BenchSci Platform. Customer grants to BenchSci: (i) a non-exclusive, royalty-free, irrevocable, fully paid-up, perpetual, sublicensable, transferrable and worldwide right and license during the Term to reproduce, perform, Modify, develop, access, collect, store and use all Customer Data, including any data, information or other content forming part thereof, in connection with this Agreement; and (ii) a non-exclusive, royalty-free, irrevocable, fully paid-up, perpetual, sublicensable, transferrable and worldwide right and license to reproduce, perform, Modify, develop, access, collect, store, use, sell, exploit, resell, distribute, provide, and transfer all De-Identified Data, including any data, information or other content forming part thereof, including for the purposes of improving the BenchSci Platform.
Rights Granted in connection with Customer Data with a Paid/Commercial Use agreement. Where Customer Data is loaded, transmitted to or entered into the BenchSci Platform or otherwise provided to BenchSci under an account with a Paid/Commercial Use agreement, in accordance with section 8 below, and subject to the terms and conditions of this Agreement, Customer Data will be used for the purposes of rendering service to Customer under this Agreement and improving the BenchSci Platform, but Customer Data will not otherwise be shared without third parties, unless required by law. Customer grants to BenchSci: (i) a non-exclusive, revocable, royalty-free, fully paid-up, and worldwide right and license to reproduce, perform, Modify, develop, access, collect, store and use all Customer Data, including any data, information or other content forming part thereof, for the purposes of providing service to Customer under this Agreement and improving the BenchSci Platform; and (ii) a non-exclusive, revocable, royalty-free, fully paid-up, and worldwide right and license to reproduce, perform, Modify, develop, access, collect, store, use, sell, exploit, resell, distribute, provide, and transfer all De-Identified Data, including any data, information or other content forming part thereof, for the purposes of providing service to Customer under this Agreement and improving the BenchSci Platform.
- Reservation of Rights by BenchSci.
BenchSci expressly reserves all rights, title, and interest in: (i) the BenchSci Platform (or any part thereof), all Derivative Works, and all other materials or content provided by BenchSci under this Agreement, including any and all Modifications to any of the foregoing; and (ii) all intellectual property rights in any of the foregoing (clauses (i) and (ii) are collectively, the “BenchSci Property”). All right, title and interest in the BenchSci Property will remain with BenchSci (or BenchSci’ third party suppliers, as applicable). For greater certainty, the BenchSci Property is provided to Customer on the terms and conditions of this Agreement and not “sold” to Customer.
- User Account; Customer Restrictions.
- User Account for Software. While a User Account is not required in order to use the BenchSci Platform, certain functionality may made available by BenchSci only to Customers that have been issued a User Account (e.g., the ability to save search results for future reference). Upon Customer’s request, BenchSci will issue one user account (the “User Account”) to Customer solely for Customer to use of the BenchSci Platform. Customer is responsible for the compliance with this Agreement and any and all activity occurring under the User Account. Customer will not share the User Account with any other person. Customer will promptly notify BenchSci of any actual or suspected unauthorized use of the BenchSci Platform through the User Account.
- Customer Restrictions. Without limiting the generality of any of the foregoing, Customer will not, and will not permit any other person to:
- use the BenchSci Platform other than as permitted by this Agreement;
- disable, overly burden, impair, or otherwise interfere with servers or networks connected to the BenchSci Platform (e.g., by a denial-of-service attack);
- use the BenchSci Platform to upload, collect, transmit, store, use, disclose or process any Customer Data: (A) that Customer does not have the lawful right to upload, collect, transmit, store, use, disclose, process, copy, transmit, distribute and display; (B) in a manner that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); (C) that is tortious, defamatory, obscene, or offensive, or that violates, or encourages any conduct that may violate, any applicable laws or would give rise to civil or criminal liability;
- use any data mining, robots, or similar data gathering or extraction methods, or copy, Modify, reverse engineer, reverse assemble, disassemble, or decompile the BenchSci Platform or any part thereof or otherwise attempt to discover any source code or Modify the BenchSci Platform;
- use the BenchSci Platform for the purpose of building a similar or competitive product or service; or
- except for temporary system caching necessary for Customer’s use of the BenchSci Services, cache, download, or otherwise store any information, material or content made available or provided to Customer through the BenchSci Platform (the “Content”), including the relationship between the Content and any anti-body products.
- Confidential & Proprietary Information.
- For purposes of this Agreement, a Party receiving Confidential & Proprietary Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser” and “Confidential & Proprietary Information” means any and all information of Discloser disclosed by Discloser to Recipient or otherwise coming into the possession of Recipient during the Term that is marked as “confidential” or “proprietary” or that a reasonable person would understand to be confidential or proprietary; provided that Discloser’s Confidential & Proprietary Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential & Proprietary Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations. Notwithstanding the foregoing, the terms and conditions of this Agreement and all BenchSci Property (including any part thereof), whether marked as “confidential” or “proprietary” or not, will be BenchSci’ Confidential & Proprietary Information.
- Confidentiality Covenant. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential & Proprietary Information of the Discloser to any person, except to its own personnel, affiliates or contractors having a “need to know” and that have entered into written confidentiality obligations no less protective of BenchSci than the terms of this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend. Upon the earlier of: (A) Discloser’s written request; and (B) the termination or expiration of this Agreement, and regardless of whether a dispute may exist, Recipient will return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof. Notwithstanding the foregoing, BenchSci may retain a copy of any Confidential & Proprietary Information of Customer (including Customer Data) for the sole purpose of and to the extent necessary for it to comply with applicable and legal, regulatory, or reasonable internal back-up or archival practices or policies.
- Exceptions to Confidentiality. Notwithstanding Section 7(b), Recipient may disclose Discloser’s Confidential & Proprietary Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) in the case of BenchSci, to its employees, contractors, accountants, internal and external auditors, legal counsel and other professional advisors if and to the extent such persons need to know such Confidential & Proprietary Information in order to provide applicable professional advisory BenchSci Services related to BenchSci’ business; or (iii) in the case of BenchSci, to potential assignees, acquirers or successors of BenchSci if and to the extent such persons need to know such Confidential & Proprietary Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of BenchSci.
- Paid/Commercial Use.
- Fees. BenchSci may make paid subscription plans available to certain users. If you choose to enter into a subscription agreement with BenchSci, in exchange for access to the services specified in the subscription plan you select, you agree to pay all fees agreed at time of subscription. Any subscription and payment terms presented to you in the process of using or signing up for a paid subscription are deemed part of these Terms of Service. All fees are billed in advance and are based on subscriptions purchased and not actual usage. Fees paid are non-refundable and payment obligations cannot be cancelled. BenchSci may suspend our services to you until unpaid fees are paid in full, without limiting our other rights and remedies.
- Recurring Charges. BenchSci’s paid services may involve a recurring payment plan, where charges automatically recur on a monthly or annual basis. By selecting a recurring payment plan, you acknowledge that such services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. You accept that BenchSci may charge your chosen payment method according to the terms of the recurring payment plan without further authorization from you, until you provide notice and receive confirmation of our receipt of said notice, that you have terminated this authorization.
- Invoicing and Payment. You must provide current, complete and accurate information for your billing account. You must keep all billing information current, complete and accurate, and must promptly notify us and your payment processor if your payment method is cancelled or if you become aware of a potential breach of security. If you fail to provide current, complete and accurate billing information, you agree that we may continue charging you for any use of paid services under your billing account unless you have terminated your paid services as described above.
- Warranty; Disclaimer; Indemnity.
- Customer Warranty. Customer represents and warrants to, and covenants with BenchSci that the Customer Data will only contain Personal Information in respect of which Customer has obtained all applicable third party consents, authority and permissions, and has made all applicable third party disclosures, in each case as required by applicable laws, regarding all collection, storage, access, use, disclosure and transmission of Personal Information, including by or to BenchSci and to or from all applicable third parties.
- GENERAL DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE BENCHSCI PLATFORM (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS OR SERVICES PROVIDED BY BENCHSCI TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BENCHSCI HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. BENCHSCI DOES NOT WARRANT THAT THE BENCHSCI PLATFORM (OR ANY PART THEREOF) WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, BENCHSCI EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE BENCHSCI PLATFORM (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
- DISCLAIMER FOR THIRD PARTY SUPPLIERS OF ANTI-BODIES. WHILE THE BENCHSCI PLATFORM MAY PROVIDE LINKS TO WEBSITES OF THIRD PARTY SUPPLIERS OF ANTI-BODIES AND OTHER PRODUCTS, BENCHSCI DOES NOT ENDORSE ANY INFORMATION CONTAINED ON THOSE WEBSITES OR GUARANTEE THE QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PURPOSES OF SUCH ANTI-BODIES AND PRODUCTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE INFORMATION, SERVICES, AND PRODUCTS PROVIDED BY THIRD PARTY SUPPLIERS IS NOT UNDER BENCHSCI’ CONTROL AND THAT CUSTOMER USES SUCH INFORMATION, SERVICES, AND PRODUCTS ENTIRELY AT ITS OWN RISK.
- Customer will defend, indemnify and hold harmless BenchSci, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and reasonably attorney’s fees), directly or indirectly arising from or in connection with, or relating to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; (iii) use of the BenchSci Platform (or any part thereof) by Customer, including in combination with any third party software, application or service; (iv) misrepresentation, criminal behaviour or gross negligence on the part of Customer; (vi) Customer’s use of any content available on the BenchSci Platform; or (v) any actual or alleged infringement, violation or misappropriation of the rights of any person (including intellectual property or privacy rights) as a result of Customer’s use of the BenchSci Platform (or any part thereof). Customer will fully cooperate with BenchSci in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of BenchSci.
- Limitation of Liabilities.
- IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF BENCHSCI IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED [CAD$100]. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL BENCHSCI’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
- TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL BENCHSCI BE LIABLE TO CUSTOMER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY; (IV) ANY COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR BENCHSCI SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE.
- Term and Termination
- This Agreement will commence on the Effective Date and continue to be in effect until terminated in accordance with its terms (the “Term”).
- Termination For Convenience. Either party may terminate this Agreement at any time by providing advance written notice of not less than 30 days to the other Party.
- Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Rights and License Grants), Section 4 (Reservation of Rights), Section 7 (Confidential & Proprietary Information), Section 9 (Warranty; Disclaimer; Indemnity), Section 10 (Limitation of Liabilities), Section 11 (Survival), and Section 12 (General Provisions).
- General Provisions.
- Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or two days after being sent by first class mail postage prepaid to the official contact designated by the Parties and immediately after being received by the other Party’s server. Notices must be in writing and sent: (i) if to BenchSci, to the address set out as follows:
559 College St., Suite 201, Toronto, ON M6G 1A9
and (ii) if to Customer, to the current postal or email address that BenchSci has on file with respect to Customer. BenchSci may change its contact information by posting the new contact information on the BenchSci Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with BenchSci through the BenchSci Platform current at all times during the Term.
- Customer will not assign this Agreement to any third party without BenchSci’ prior written consent. BenchSci may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. Any assignment in violation of this Section will be void. The terms of this Agreement will be binding upon permitted assignees. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
- Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- Compliance with Export Regulations. Customer represents and warrants that Customer has or will obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals that are required by applicable laws (including applicable laws pertaining to the importation, exportation, or use of the BenchSci Platform) for Customer to use the BenchSci Platform. Customer will not directly or indirectly export or re-export (including by transmission) any regulated technology forming part of the BenchSci Platform to any country where such activity is restricted by applicable law without the prior written consent, if required, of the applicable governmental or regulatory authority.
- Except as otherwise provided in this Agreement, the Parties rights and remedies under this Agreement are cumulative. The term “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of BenchSci in this Agreement means the right of BenchSci to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
- Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond BenchSci’ reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving BenchSci employees), or Internet service provider failures or delays.
- Severable and Waiver. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be automatically be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Independent Contractors. Customer’s relationship to BenchSci is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of BenchSci.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all other communications, whether written or oral.
- Electronic Execution. This Agreement may be executed in one or more counterparts (including electronically), each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
- No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, BENCHSCI MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY BENCHSCI, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
- English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais