Effective date: September 12, 2019
PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Welcome to Benchling. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the "Services"). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at email@example.com.
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the Benchling website, by sending you an email, and/or by some other means.
If you don't agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
The Children's Online Privacy Protection Act ("COPPA") requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 16; if you are a child under 16, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 16, we will delete that information as quickly as possible. If you believe that a child under 16 may have provided us personal information, please contact us at firstname.lastname@example.org.
You may be required to sign up for an account, and select a password and user name ("Benchling Username").
If you plan to use the Services for your personal purposes, and not on behalf of or in connection with any of your work or responsibilities for any of your employers, institutions, universities, or labs(each, an “Institution”), please use your personal email address not associated with any of such Institutions to sign up for Benchling’s Services (“Personal Account”).
If you plan to use the Services for, on behalf of, or in connection with any of your work or responsibilities for any Institution, please use your email address associated with such Institution to sign up for Benchling’s Services (“Institutional Account”).
Before signing up, please contact your Institution to verify whether it has purchased any of the Services. You may be eligible or required to use the Services as an authorized user within such Institution pursuant to a separate written agreement entered into by such Institution with Benchling (each, an “Enterprise Agreement”), and such Enterprise Agreement will supersede these Terms and control your use of the Services through the Institutional Account. If your Institution has not signed up for the Services yet, you may also use your email address associated with such Institution to sign up for Benchling’s Services. You acknowledge and agree that your use of an email address associated with an Institution for Benchling’s Services constitutes your acceptance that such use shall only be for, on behalf of, or in connection with your work or responsibilities for such Institution, and not for your personal purposes. Before such Institution signs up for the Services, your use of the Services via your email address associated with such Institution will be governed by these Terms. When such Institution enters into an Enterprise Agreement for the Services, you acknowledge and agree that your Institution may request Benchling to transfer any of your accounts using an email address associated with such Institution to such Institution, in which event your use of the Services will be governed by the applicable Enterprise Agreement.
You further acknowledge and agree that in connection with the transfer of your Benchling account to your Institution, your User Submissions (defined below) stored in such account may be transferred over to your Institution, which may have certain rights over your User Submissions, including without limitation, the right to access, edit, export, or delete any part of such User Submissions, and the right to grant access to such User Submissions to other third parties. Note that your Institution, not Benchling, decides and controls what rights your Institution may have over your User Submission, and you may be subject to any agreement you have entered into with your Institution when using the Services through an email address associated with such Institution.
It is important that you separate your personal projects from your work or responsibilities for any Institution by signing up a Personal Account for your personal projects using your personal email address, and using an Institutional Account only for, on behalf of, or in connection with your work or responsibilities for such Institution. You’re solely responsible for your choice of Personal Account or Institutional Account and hereby release and hold Benchling harmless from any and all liability arising from such choice, including, without limitation, any transfer of or grant of rights to your User Submissions to any Institution as described herein.
When using either Personal Account or Institutional Account, you represent and warrant that (i) you (and your licensors) have all right, title and interest (including, without limitation, sole ownership of) all of your User Submissions and the intellectual property rights with respect thereto, (ii) you have all the necessary rights, consents, and approvals to grant Benchling the right and license to provide the Services to you or to use your User Submissions as otherwise permitted under these Terms. You, and not Benchling, have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all your User Submissions. You agree that you will not (and will not permit others to) violate any agreement with or rights of any third party (including your current and former Institutions) or, use or disclose at any time any third party’s confidential information or intellectual property in connection with your use of the Services. If Benchling receives any notice or claim that any of your User Submissions, or activities hereunder with respect to any User Submission, may infringe or violate rights of a third party (a “Claim”), Benchling may (but is not required to) suspend activity hereunder with respect to such User Submission and you shall indemnify Benchling from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Benchling Username a name that you don't have the right to use, or another person's name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You represent and warrant that you are of legal age to form a binding contract (or if not, you've received your parent's or guardian's permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). If you're agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity's behalf and bind them to these Terms (in which case, the references to "you" and "your" in these Terms, except for in this sentence, refer to that organization or entity).
You will only use the Services in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren't authorized to use the Services. We can't and won't be responsible for your using the Services in a way that breaks the law.
You will not share your account or password with anyone, and you must protect the security of your account and your password. You're responsible for any activity associated with your account.
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the "Content") are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won't use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else's (including Benchling's) rights.
You understand that Benchling owns the Services. You won't modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn't mean that all the restrictions above don't apply — they do!
For all User Submissions, you hereby grant Benchling a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only — your ownership in User Submissions is not affected.
If you store a User Submission in your own Personal Account, in a manner that is not viewable by any other user except you (a "Personal User Submission"), you grant Benchling the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the Services necessary to do so.
If you share a User Submission only in a manner that only certain specified users can view (for example, a project shared with one or more other users)(a "Limited Audience User Submission"), then you grant Benchling the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services. You acknowledge and agree that your User Submissions stored in your Institutional Account shall be deemed as Limited Audience User Submission, and unless otherwise expressly requested by you in writing, any and all of the User Submission stored in your Institutional Account may be accessed, viewed, shared, exported, or otherwise exploited by any other authorized users of your Institution. Your Institution, and not Benchling, has the right to decide what rights and authorities you and/or other authorized users may have with respect to such User Submission stored in your Institutional Account, and your agreement with such Institution may impose additional restrictions.
If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a "Public User Submission"), then you grant Benchling the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all Benchling users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with Benchling business, provided that Benchling will try to notify you if it uses your Public User Submission for any reason other than displaying it on the Services. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
You agree that the licenses you grant are royalty-free, perpetual, sublicenseable, irrevocable, and worldwide, provided that when you delete your Benchling account, we will stop displaying your User Submissions (other than Public User Submissions, which may remain fully available) to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from Benchling's records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.
Finally, you understand and agree that Benchling, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren't liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can't guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.
Benchling has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, Benchling will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Benchling shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site, or between users and any third party, you agree that Benchling is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Benchling, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor."
We're always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We'll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn't always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Benchling offers various plans for its Services. Please refer to https://www.benchling.com/pricing (the “Plan and Price List”) for details on our plans and pricing information. Benchling's Academic Plan (as described in the Plan and Price List) is currently free for the following users: (i) an individual academic user who registers for a Personal Account to use the Services in his or her individual capacity; (ii) every researcher working in an academic lab to use the Services only for the work performed for the lab through his/her Personal Account, or through his/her Enterprise Account only in the event and during the period of time when the institution to which the lab belongs has not entered into an Enterprise Agreement with Benchling; or (iii) a teacher of an academic class and every student taking that class to use the Services only for the work assigned for the class and only through his/her Personal Account, or through his/her Enterprise Account only in the event and during the period of time when the school to which the class belongs has not entered into an Enterprise Agreement with Benchling. For clarity, and without limiting the foregoing, all institutional or enterprise users, whether academic, research, or commercial, and whether for profit or non-profit, shall purchase paid plans. For instance, we’re happy for an academic lab or class at an institution to use the Academic Plan on an individual basis, but if the institution plans to adopt our Services across different labs/classes, please purchase the applicable paid plans. If you violate the foregoing restrictions, Benchling reserves the right to invoice you the applicable fees based on your actual use of the Services and Benchling’s then-current Plan and Price List.
Benchling reserves the right to require payment of fees for certain or all Services, including without limitation our Professional Plan and Enterprise Plan, as specified in the Plan and Price List. Please refer to https://www.benchling.com/pricing for details on our plans and pricing information. Benchling reserves the right to change its price list and to institute new charges at any time, upon notice to you, which may be sent by email or posted on the Benchling website. You shall pay all applicable fees, as described on the Website in connection with such paid Services selected by you, or as invoiced by Benchling pursuant to these Terms or a separate written agreement entered into between you and Benchling.
Benchling is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Benchling has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important User Submissions you may have stored in your account (to the extent allowed by law, these Terms, and any other agreements to which you’re subject), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone's safety or security, or otherwise harmful to the rights or property of Benchling.
If you have deleted your account by mistake, contact us immediately at email@example.com — we will try to help, but unfortunately, we can't promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
Warranty Disclaimer. Neither Benchling nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. THE SERVICES AND CONTENT ARE PROVIDED BY BENCHLING (AND ITS LICENSORS AND SUPPLIERS) ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL BENCHLING (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO BENCHLING IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. To the fullest extent allowed by applicable law, you agree to indemnify and hold Benchling, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action ("Claim"), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Benchling's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law; Arbitration. These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND BENCHLING ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Benchling may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Benchling agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Benchling, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Benchling, and you do not have any authority of any kind to bind Benchling in any respect whatsoever. You and Benchling agree there are no third party beneficiaries intended under these Terms.