Each Customer account gives access to the services and functionalities established by Benchling from time to time and in its sole discretion, Benchling maintains different types of accounts for different Customers. If you open a Benchling account on behalf of a company, organization, or other entity, then (a) "Customer" includes you and that entity, and (b) you represent and warrant that you are an authorized of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity's behalf.
"Benchling Content" means all content, including without limitation software (in object or source code form), script, programming code, data, information, structural hierarchies, processes, HTML code, trademarks, images, illustrations, graphics, multimedia files and/or text, contained in the Benchling System (except for the Customer Data).
"Benchling Data" means all data generated by the Benchling System, including without limitation, service and usage data.
"Benchling System" means the software applications operated on Benchling's hosting servers or those of its hosting service provider intended to enable Customer to interact with the same via the internet, on the Website. Without limiting the foregoing, the Benchling System shall include the Benchling Content and the Website.
"Confidential Information" means any information disclosed by either party pursuant to this Agreement that is (a) is in written, graphic, machine readable or other tangible form and is marked "Confidential," "Proprietary" or in some other manner to indicate its confidential nature, or (b) in the case of oral or visual disclosure is identified as confidential at the time of disclosure and reduced to tangible form, marked as confidential, and provided to the receiving party within a reasonable time not to exceed thirty days, or (c) under the circumstances should in good faith be considered to be confidential. Confidential Information includes, without limitation, information related to: research, product plans, products, developments, inventions, processes, designs, markets, business plans, agreements with third parties, services, customers, marketing or finances of either party, the content or existence of any negotiations, and pricing. Notwithstanding the foregoing, all technology or proprietary information underlying the Benchling Data and Benchling System shall be deemed Confidential Information of Benchling without any need for designating the same as confidential or proprietary.
"Customer Data" means any data or other content or information provided to Benchling via the Benchling System.
"Developments" means the collective ideas, know-how, or techniques developed or conceived by Benchling as a result of providing the Benchling System to Customer, including without limitation any derivative works, improvements, enhancements and/or extensions made to the Benchling Data or Benchling System (or any portion thereof), as well as all suggestions, comments, or other feedback related to the Benchling Data or Benchling System (or any portion thereof) or any other Confidential Information of Benchling, and all intellectual property rights therein and thereto throughout the world.
"Intellectual Property Rights" means all rights of the following types, under the laws of any jurisdiction worldwide: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, and moral rights; (b) trade secret rights; (c) patent and industrial property rights; (d) other proprietary rights of every kind and nature; and (e) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the above.
"Services" means the professional services the parties have mutually agreed during the signup process that Benchling will provide during the Term (if any).
"Website" means the website located at http://www.benchling.com/, and all subdomains, subpages, and successor sites thereof, and the web-based interface hosted by Benchling thereon, by which Customer may access the Benchling System and its features and functionalities.
Benchling will host and maintain the Benchling System on servers operated and maintained by or at the direction of Benchling. Benchling may in its sole discretion modify, enhance or otherwise change the Benchling System. Benchling may delegate the performance of certain portions of the Benchling System to third parties, including Benchling's wholly owned subsidiaries.
Benchling will host and maintain the User Interface, and provide Customer access to the User Interface pursuant to a password protected user account. Benchling reserves the right to periodically change issued passwords. Benchling will provide prompt notice to Customer of any such password changes.
Benchling will provide the Services (if any).
Customer will be responsible for obtaining and maintaining at its expense all the necessary computer hardware, software, modems, connections to the internet and other items required for Customer's access and use of the Benchling System, Website, and User Interface.
During the Term, Customer shall use its commercially reasonable efforts to cooperate with Benchling in developing and sharing testimonials, case studies, marketing materials, return-on-investment calculations, and measurement criteria for the purpose of substantiating the value, benefits, and cost savings derived from the Benchling System.
License Grants; Restrictions.
License to Customer. Subject to the terms and conditions of this Agreement, Benchling hereby grants Customer a limited, personal, non-transferable license during the Term to: (a) access and use the Benchling System; (b) use the Benchling Data solely to use and evaluate the Benchling System; and (c) access and use the Website as required to use the Benchling System. The foregoing rights are subject to Customer's full compliance with each of the following and will be exercisable by Customer solely: (x) for Customer's internal business use; (y) in accordance with the features and functionalities offered by Benchling in connection with the Benchling System; and (z) by the number of Authorized Users chosen during the signup process.
Customer Data Usage. Benchling may use Customer Data for the purposes of: (a) providing the Benchling System and related services; (b) modifying and improving the Benchling System; and (c) enforcing its rights under this Agreement.
License Restrictions. Customer shall not, and shall not permit any third party to: (a) use the Benchling Data or Benchling System (or any portion thereof) except to the extent permitted in Section 4.1; (b) modify or create any derivative work of any part of Benchling Data or Benchling System (or any portion thereof); (c) market, sublicense, publish, distribute, reproduce, resell, assign, transfer, rent, lease, or loan the Benchling Data or Benchling System (or any portion thereof); or (d) use the Benchling Data or Benchling System (or any portion thereof) for commercial time-sharing or service-bureau use.
Reservation of Rights. Benchling reserves all rights to the Benchling Data or Benchling System (or any portion thereof) not otherwise expressly granted in this Section 4.
Payments and Taxes.
Fees. Customer agrees to pay, and shall pay, the fees set forth on the Payment Terms for the level of service chosen by the Customer. All payments shall be made in U.S. dollars in immediately available funds, and are non-refundable. Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less.
Taxes. Customer shall pay any sales, use, and other taxes and similar charges based on or arising from the Benchling Data or Benchling System (or any portion thereof), this Agreement or its performance (other than taxes based on Benchling's net income).
Expenses. The Customer will reimburse Benchling for reasonable travel and living expenses incurred by Benchling in performing services at sites other than Benchling facilities at the Customer's request (including without limitation, any services relating to setup, training, technical support, and consulting).
Warranties and Disclaimers.
General. Each party represents and warrants that: (a) such party is a corporation duly organized, validly existing, and in good standing under the laws of the state of its incorporation, and has the full power and authority to enter into and perform its obligations under this Agreement; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any other agreement to which such party is a party or by which it is otherwise bound; (c) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms; and (d) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter of this Agreement that are not expressly provided for in this Agreement.
Disclaimers. Except as provided in this section 6 and to the maximum extent permitted by applicable law, Benchling Data or Benchling System (or any portion thereof) and all related information, technology, and services provided by or on behalf of Benchling are provided "as is," "as available," and without any representations or warranties of any kind, express or implied, and Benchling expressly disclaims any implied warranties of merchantability, fitness for a particular purpose (even if we are advised of the purpose), accuracy, and/or non-infringement. In addition, Benchling does not warrant that access to the Benchling Data or Benchling System (or any portion thereof) will be uninterrupted or error free, that Benchling Data or Benchling System (or any portion thereof) will meet Customer's needs, or that data will not be lost. Without limiting the foregoing, Benchling does not warrant that the Benchling Data or Benchling System (or any portion thereof) is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Benchling Data or Benchling System (or any portion thereof) is downloaded at Customer's own risk and Customer will be solely responsible for any damage to its computer system or loss of data that results from such download or Customer's use of the Benchling Data or Benchling System (or any portion thereof).
Term, Termination, and Survival.
Term. This Agreement shall commence on the Effective Date, and shall continue for the term chosen by the Customer during the signup process (the "Initial Term"). The Agreement will automatically renew for successive periods equal to the Initial Term (e.g., monthly or yearly) unless either party gives the other a written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term. All such renewal terms and the Initial Term are collectively referred to as the "Term."
Termination. Either party may terminate this Agreement: (a) on thirty (30) days' prior written notice if the other party materially breaches any of the terms of this Agreement and such breach remains uncured thirty (30) days following such party's receipt of the terminating party's notice; (b) immediately on written notice if: (i) all or substantially all of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver or trustee in bankruptcy; (d) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within thirty (30) days; or (iii) the other party is adjudged bankrupt or insolvent.
Survival. Upon termination or expiration of this Agreement, all licenses granted hereunder shall immediately terminate. The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 4.2, 4.3, 4.4, and 5 through 18 (inclusive).
Limitation of Liability. Except for indemnification obligations under section 10, the aggregate liability of Benchling and its licensors to Customer arising from its access to or use of the Benchling System, or Benchling's provision of technical support, installation, training or other services in connection therewith, or otherwise in connection with this Agreement or its subject matter, however caused, and on any theory of liability, including without limitation contract, strict liability, negligence and/or other tort, shall in no event exceed the amount of fees that have been paid to Benchling for access to and use of the Benchling System during the six (6) months immediately preceding the first event giving rise to such liability. in no event will Benchling or its licensors be liable for any indirect, incidental, special, or consequential damages, including without limitation damages for loss of profits, revenue, data, or data use, even if advised of the possibility of such damages, including, without limitation, any liability related to the procurement of substitute goods. The foregoing limitations form an essential basis for this Agreement and shall survive regardless of the failure of any remedy of its essential purpose.
Benchling's Ownership Rights. Subject only to the limited license expressly granted under this Agreement, as between Benchling and Customer, Benchling shall retain all right, title, and interest in and to the Benchling Data or Benchling System (and all portions thereof) (excluding the Customer Data), and Developments, and all Intellectual Property Rights therein. Nothing in this Agreement will confer on Customer any right of ownership or interest in the Benchling Data or Benchling System (or any portion thereof) (excluding the Customer Data), or Developments, and all Intellectual Property Rights therein. To the extent Customer have or obtain any right, title, or interest in the Benchling Data or Benchling System (or any portion thereof) (excluding the Customer Data), or Developments, or any Intellectual Property Rights therein, Customer hereby assign, and agrees to assign, without further consideration, to Benchling all such right, title, and interest Customer may have or obtain.
Customer's Ownership Rights. Subject only to the limited license expressly granted hereunder, as between Customer and Benchling, Customer shall retain all right, title and interest in and to the Customer Data, and all Intellectual Property Rights therein. Nothing in this Agreement will confer on Benchling any right of ownership or interest in the Customer Data, or the Intellectual Property Rights therein.
Execution of Documents. During the Term, and at any other time thereafter, at Benchling's request Customer shall execute any and all documents and perform any and all acts that Benchling may reasonably require in order to protect and perfect any Benchling Intellectual Property Rights, or to apply for, obtain, and vest in the name of Benchling alone all patents, copyrights, trademarks, or other similar protection for any Benchling Intellectual Property Rights, and, when so obtained or vested, to maintain, renew, and restore the same.
Indemnity. Each party shall indemnify, defend, and hold the other party and its affiliates, and its and their officers, members, directors, employees, agents, successors and assigns harmless from and against all liabilities (including liabilities arising out of the application of the doctrine of strict liability), obligations, losses, damages, penalties, fines, claims, penalties, actions, suits, judgments, costs, expenses, and disbursements (including reasonable legal fees and expenses and reasonable costs of investigation) ("Losses") arising from: (a) with respect to Benchling, a claim that the Benchling System infringes or otherwise violates any third-party's U.S. state or federal rights, including but not limited to intellectual property, privacy, or other proprietary rights; or (b) with respect to Customer, a claim that the Customer Data infringes or otherwise violates any third-party's U.S. state or federal rights, including but not limited to intellectual property, privacy, or other proprietary rights. Customer shall indemnify, defend, and hold Benchling and its affiliates, and Benchling's and their officers, members, directors, employees, agents, successors and assigns harmless from and against all third-party claims and Losses arising from: (a) Customer's use of and access to the Service, including any data or content transmitted or received by Customer; (b) any other party's access and use of the Service with Customer's unique username, password, or other appropriate security code; or (c) any infringement or misappropriation claim that arises from: (i) Customer's use of the Benchling System other than as specified in this Agreement or in the applicable documentation; or (ii) use of the Benchling System in conjunction with third-party software, hardware, or data other than that approved by Benchling.
Process. The indemnified party shall promptly notify the indemnifying party in writing of any claim for which it seeks indemnification hereunder; provided that the failure to provide such notice shall not relieve the indemnifying party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any such claim; provided, however, that (a) the indemnifying party shall keep the indemnified party informed of, and consult with the indemnified party in connection with the progress of such litigation or settlement and (b) the indemnifying party shall not have any right, without the indemnified party's written consent, to settle any such claim in a manner that does not unconditionally release the indemnified party. At the indemnifying party's request, the indemnified party will provide reasonable cooperation with respect to any defense or settlement.
Remedies. In the event any portion of the Benchling System is held or believed by Benchling, or any portion of the Customer Content is held or believed by the Customer, to infringe intellectual property rights of any third party (such portion to be deemed the "Infringing Materials") in any place where the Benchling System is used or accessed, then in addition to any other rights in this Section 10, Benchling (where the Infringing Materials are the Benchling System) or Customer (where the Infringing Materials are the Customer Content) shall, at its sole expense and at its option: (a) obtain from such third party the right for the other party to continue to use the Infringing Materials; (b) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; (c) upon mutual agreement with the other party, remove and disable the Infringing Materials; or (d) if none of the foregoing remedies is commercially feasible, terminate this Agreement.
Sole Remedy for Intellectual Property Violations. This Section 10 contains each party's sole and exclusive remedy, and each party's entire liability, with respect to infringement or alleged infringement of third party intellectual property rights relating to the Benchling System and the subject matter of this Agreement.
Confidentiality. Each party shall treat as confidential all Confidential Information of the other, shall not use such Confidential Information except as set forth in this Agreement, and will not disclose such Confidential Information to any third party except as expressly permitted herein without the disclosing party's written consent. The receiving party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the disclosing party's Confidential Information, but in no event less than reasonable care. The receiving party shall promptly notify the disclosing party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In the event of any termination or expiration of this Agreement, each party will either return or, at the disclosing party's request, destroy the Confidential Information of the other party; provided however, that Benchling may retain copies of the Customer Confidential Information for routine backup and archival purposes. Notwithstanding the foregoing, the obligations set forth in this Section 11 shall not apply with respect to any information to the extent that it is: (a) already in the possession of the receiving party prior to the first disclosure hereunder as shown by records or files; (b) is already part of the public knowledge or becomes part of the public knowledge after the time of disclosure other than as a result of any improper action by the receiving party; (c) is approved in writing by the disclosing party; (d) is required to be disclosed by applicable legal authority provided that, if practicable, adequate notice and assistance is given by the receiving party to the disclosing party for the purpose of enabling the disclosing party to prevent and/or limit the disclosure; or (e) is independently developed by either party without use of the Confidential Information from the other party.
Notices. All notices and other communications required or permitted under this Agreement shall be in writing, addressed to the applicable party at its address set forth in this Agreement, and shall be deemed effectively delivered only: (a) upon personal delivery, (b) upon delivery by a courier service as confirmed by written delivery confirmation, (c) upon delivery by facsimile as confirmed by transmission receipt, or (d) three (3) business days after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid. Either party may change its address for notice by giving notice to the other party in accordance with this section. A copy of any required notice must be sent via email delivery to email@example.com.
Governing Law, Jurisdiction, Venue, and Dispute Resolution. This Agreement shall be construed in accordance with applicable U.S. federal law and the laws of the State of California without regard to conflict of laws principles. In the event a dispute arises out of or in connection with this Agreement, the parties will attempt to resolve the dispute through friendly consultation. If the dispute is not resolved within a reasonable period, then any or all outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues shall be finally settled by arbitration in San Francisco, California. Notwithstanding the foregoing, each party shall have the right to institute an action in the state or federal courts of San Francisco County, California for preliminary injunctive relief pending a final decision by the arbitrator(s), provided that a permanent injunction and damages shall only be awarded by the arbitrator(s).
Force Majeure. Other than for payment of money, a party shall be excused from any delay or failure in performance hereunder due to any labor dispute, government requirement, internet congestion or breakdown, or any other cause beyond its reasonable control. Such party shall use commercially reasonable efforts to cure any such failure or delay in performance arising from such a condition, and shall timely advise the other party of such efforts. If such delay continues for more than sixty (60) days, the performing party may, upon not less than ten (10) days prior written notice to the non-performing party, terminate this Agreement.
Relationship of the Parties. The relationship between the parties shall only be that of independent contractors. Neither party is an agent, representative, partner, employer, or employee of the other party, and neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
Publicity. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or otherwise use the other party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship without obtaining the express prior written consent of the other party. Notwithstanding anything to the contrary in this Agreement, Benchling may reference Customer as a Benchling System user in its marketing and promotional materials, including but not limited to the Website.
General. Customer shall not assign nor transfer any obligations or benefit under this Agreement without the written consent of Benchling. Benchling may assign this Agreement freely without restriction. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. This Agreement, together with its exhibit(s), is the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements, and all prior and contemporary proposals and discussions relating to the subject matter of this Agreement, and controls over the preprinted terms of any purchase order or similar document. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or different kind. All notices, modifications and waivers under this Agreement must be in a writing executed by a duly authorized representative of each of the parties. If any provision of this Agreement is determined to be unenforceable, that provision will be replaced with the valid one that most closely achieves the parties' intent and the remainder of this Agreement will remain enforceable. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument.