Terms of Service

These Terms of Service are effective on September 20, 2024. Your continued use of the Benchling Services on or after the TOS Update Effective Date (as defined below) constitutes your acceptance of the updated version of these Terms of Service. If you do not agree to the updated version of the Terms of Service, you must stop using the Benchling Services.

Welcome to Benchling!  These Terms of Service (“Terms of Service”) form a binding legal agreement between you (“you” or “your”) and Benchling, Inc., a Delaware corporation located at 680 Folsom Street, 8th Floor, San Francisco, CA 94107 (“Benchling”).  These Terms of Service govern your access to and use of the Benchling Services (defined below in Sec. 14) for your personal or institutional use.

All capitalized terms not defined when they first appear are defined in Section 14 below.

Please read these Terms of Service carefully.  By accessing or using the Benchling Services, you agree to be legally bound by these Terms of Service. If your Institution has executed a separate written agreement with Benchling (a “Services Agreement”), then that Services Agreement will govern your use of our services instead of these Terms of Service. 

The Benchling Services allow for two types of accounts: (1) Personal Accounts and (2) Institutional Accounts.  A “Personal Account” is for your individual use and not associated with your employer or institution.  To create a Personal Account, please sign up with your personal email address and not the email address issued to you by your institution or employer.  An “Institutional Account” is for your use in connection with your work or other responsibilities at your employer, institution, university, lab, or other organization (each and “Institution”).  To create an Institutional Account, please sign up with the email address granted to you by the applicable Institution.  Please read Section 1.4 (Institutional Accounts) to understand your responsibilities and obligations with respect to Institutional Accounts.  

Benchling reserves the right to modify these Terms of Service. Benchling will provide notice of any such modifications and the modifications will take effect on the date indicated on such notice, or thirty (30) days after you receive such notification (“TOS Update Effective Date”).  

1. Benchling Services.

1.1. Application Services. Upon your registration for Benchling, and subject to these Terms of Service, Benchling grants you a limited, non-exclusive, non-transferable (except as permitted under Section 13.5 (Assignment)) right, to access and use the Application Services solely for use in connection with your personal or your Institution's biological research and related scientific activities  (“Permitted Use”).

1.2. Benchling Installed Software. Upon your registration for Benchling, and subject to the these Terms of Service, Benchling grants you a nonexclusive license to download, install, use and run any Benchling Installed Software as necessary for your use in connection with the Application Services and for your Permitted Use.

1.3. Documentation. In connection with the Application Services and Benchling Installed Software, Benchling grants you the right to access, copy and use the Documentation as part of your Permitted Use. Benchling may update, modify, or change the Benchling Services and delegate certain services to third parties at our discretion.

1.4. Institutional Accounts.  Institutional Accounts allow you to collaborate on projects with others within your Institution.  Being part of an Institutional Account means you’ll be recognized as an authorized user and collaborator under that account.  Before you sign up for an Institutional Account, you must determine whether your Institution has an Institutional Account.  If your Institution already has an Institutional Account, you may be eligible or required to use the Benchling Services as an authorized user within such Institutional Account. If your Institution does not have an Institutional Account, you can create one using your Institutional email address.  Registering with an institutional email address signifies your agreement to only use the Benchling Services for purposes tied to your Institutional roles and responsibilities and not for personal endeavors.  

By using an institutional email for registration, you acknowledge that any work or intellectual property (“IP”) created or managed within the Benchling Services under an Institutional Account is deemed to be owned by the affiliated Institution, subject to the terms and conditions of any agreement(s) between you and that Institution.  As such, your contributions to an Institutional Account may be controlled, accessed, and utilized by your Institution, in its discretion.  This includes the right to access, edit, share, and/or delete any part of your contributions within the Institutional Account.  The governing rights over these contributions are determined by your Institution, under the agreement(s) you have with them, and not by Benchling. 

Your selection between a Personal Account, Institutional Account, and Enterprise Tenant Account within the Benchling Services is significant and affects the management and ownership of your Customer Data and IP. By choosing an account type, you acknowledge and agree that Benchling bears no liability for any consequences arising from your selection, including but not limited to, your Institution's control over your Customer Data and IP.

Additionally, you understand and agree that if your Customer Data is migrated from a Personal Account or Institutional Account to an Enterprise Tenant Account, Benchling shall not be liable for any issues, including but not limited to, delays, failures, or loss of Customer Data that may occur during such migration. You accept full responsibility for the choice of account type and any associated risks with future data migrations. For the purposes of this section, “Enterprise Tenant Account” means Benchling’s product offering for which there are fees associated. 

1.5 Customer Data Management & License Grant.  When using the Benchling Services, you have flexible sharing options tailored to your needs, whether you’re operating under a Personal Account or an Institutional Account.  Institutional Account(s) allow for an administrator to set project visibility to either a select audience (i.e., to all users under the Institution plus any other individual collaborators) (“Limited View”) or to the public (“Public View”).  As an individual using a Personal Account, you have the choice to make projects visible exclusively to yourself (“Private View”), or on a Limited View or Public View basis.  

By submitting Customer Data to the Benchling Services, you grant Benchling a comprehensive, royalty-free, perpetual, sublicensable, irrevocable, and worldwide license to use, translate, modify, reproduce, and display your Customer Data to facilitate the provision of the Benchling Services, tailored to the sharing preferences set by you or your Institution. Customer Data under projects set to “Private View” will be exclusively accessible and viewable by you (subject to Section 13.10 (Subcontractors) and other rights and permissions granting Benchling to access Customer Data). Customer Data under projects set to “Limited View” allow designated users, including those within your Institution or other selected collaborators, to access and engage with your Customer Data for collaborative projects. Customer Data under projects set to "Public View" extends access to anyone with the link to such projects, broadening the audience and visibility of your shared data. 

You are responsible for your Customer Data, including its content and accuracy, and agree to comply with Laws and the AUP in using the Benchling Services. You represent and warrant that you have made all disclosures and have all rights, consents and permissions necessary to use your Customer Data with the Benchling Services without violating or infringing Laws, third-party rights (including intellectual property, publicity or privacy rights) or any terms or privacy policies that apply to any Third-Party Services and Customer Data.

You understand and agree that Benchling, in performing the required technical steps to provide the Benchling Services to our users, may need to make changes to your Customer Data to conform and adapt that Customer Data to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

1.6. Third-Party Services. Any Third-Party Services used by you will be governed by your agreement with the third party, not these Terms of Service, and Benchling does not warrant, support, or assume any liability or other obligation with respect to such Third-Party Services or how such third parties use Customer Data. If you choose to enable integrations between the Third-Party Services and the Application Services in a manner that requires Benchling to exchange Customer Data with such Third-Party Service, then you: (a) grant Benchling permission to allow the Third-Party Service to access Customer Data and information about your usage of the Third-Party Services, as necessary, to enable integration; (b) acknowledge that any such access to Customer Data is solely between you and the Third-Party Service and subject to the agreement governing your use of such Third-Party Service (the presentation and manner of acceptance of which is controlled solely by the Third-Party Service); and (c) agree that Benchling is not responsible for any disclosure, modification, or deletion of Customer Data resulting from such access to Customer Data.

1.7. Support. Benchling will provide technical support for the Application Services and Benchling Installed Software to you during normal Business Hours as described further in the Benchling Support Policy.

1.8. Trials and Betas. Benchling may offer optional Trials and Betas. Use of Trials and Betas is permitted only for your internal evaluation during the period designated by Benchling (or if not designated, 30 days). You may stop using Trials and Betas at any time at your discretion. Benchling may terminate your use of Trials and Betas at any time for any reason. Trials and Betas are provided “AS IS” and may be inoperable, incomplete or include features never released. Notwithstanding anything else in these Terms of Service, Benchling offers no warranty, indemnity, SLA or Support for Trials and Betas and its liability related to your use of Trials and Betas will not exceed US$100.

1.9. AI Terms.The following terms and conditions apply to the AI Features (as defined below):

1.9.1. Use of AI Features. You may submit Customer Data (including in the form of prompts or queries) to the AI Features (“Inputs”) and receive results from the AI Features (“Results”). “AI Features” means Benchling features that incorporate machine learning or artificial intelligence capabilities, some of which are powered by large language models (“LLMs”).  

1.9.2. Training. Benchling will not use Inputs or Results to train underlying third-party LLMs. 

1.9.3. AI Intellectual Property. Except for Benchling’s express rights in these Terms of Service, as between the parties, you retain all intellectual property and other rights in your Inputs and Results, both of which are deemed to be Customer Data, subject to these Terms of Service.

1.9.4. Similar Results. You acknowledge that Results provided to you may be similar or identical to Results independently provided by Benchling to others.

1.9.5. Infringement by Results. Due to the nature of the AI Features, Benchling does not represent or warrant that (a) any Result does not incorporate or reflect third-party content or materials or (b) any Result will not infringe third-party intellectual property rights. Claims of intellectual property infringement or misappropriation by Results are solely your responsibility.

1.9.6. Disclaimer. Results are generated through machine learning processes and are not tested, verified, endorsed or guaranteed to be accurate, complete or current by Benchling. You should independently review and verify all Results as to appropriateness for any or all of your use cases or applications. The warranty disclaimers and limitations of liability in these Terms of Service for the Benchling Services apply to the AI Features.

1.9.7. Third-Party Providers. You agree to abide by any and all applicable third-party terms and conditions relating to the AI Features.

1.9.8. Special Restrictions on Use of AI Features. The following restrictions are deemed part of the AUP under Section 2.4 of these Terms of Service. Without limiting any restrictions on use of the Benchling Services in these Terms of Service, you will not and will not permit anyone else to:

1. use the AI Features or any Results to infringe any third-party rights,

2. use the AI Features or any Results to develop, train or improve any AI or ML models (separate from authorized use of the Benchling Services under these Terms of Service),

3. represent any Results as being approved or vetted by Benchling,

4. represent any Results as being an original work or a wholly human-generated work,

5. use the AI Features for automated decision-making that has legal or similarly significant effects on individuals, unless it does so with adequate human review and in compliance with Laws, or

6. use the AI Features for purposes or with effects that are discriminatory, harassing, harmful or unethical.

2. Your Responsibilities.

2.1. Equipment. You are responsible for obtaining and maintaining, at your expense, all the necessary computer hardware, software, services, modems, connections to the internet and other items operated or provided by you or third parties, as required for your access and use of the Benchling Services. Benchling is not responsible for the operation of any services, nor the availability or operation of the Benchling Services, to the extent such availability and operation is dependent upon such services.

2.2. Authorized User. You shall only use a single, unique email address to sign up for the Application Services under these Terms of Service. Benchling will use your email address for the purpose of authenticating you so that you can access the Application Services and as otherwise set forth in our Privacy Policy. Your email address and password may not be shared or used by any other person. You assume full responsibility and liability for any of your acts, omissions or failures that give rise to any noncompliance under this Section 2.2 and any breach or violation of these Terms of Service. Benchling reserves the right to periodically require that you change your password. Benchling will provide prompt notice to you of any such password requirements. 

2.3. Unauthorized Access. You are obligated to establish secure passwords or other security measures to ensure exclusive access to the administrative functionalities of the Application Services. You are solely responsible for the security of your account, including all passwords and files, barring instances where misuse arises directly from a breach of these Terms of Service by Benchling. This responsibility extends to all activity associated with your account, whether or not you have authorized it personally. Should you become aware of any unauthorized use, you are required to immediately inform Benchling in writing and actively cooperate with Benchling to halt and remedy the unauthorized use.

2.4. Restrictions on Use. You will not, and shall not permit any third party to (a) license, sublicense, sell, resell, rent, lease, loan, assign, transfer, distribute, timeshare, market, publish, reproduce, or otherwise commercially exploit or make the Application Services (or any portion thereof) or the Benchling Installed Software available to any third party other than as contemplated by these Terms of Service, (b) decompile, disassemble or reverse engineer the Application Services or the Benchling Installed Software, or otherwise attempt to discover the source code, object code, logic, process or underlying methodology, structure, ideas or algorithms of the Application Services or Benchling Installed Software, or related trade secrets, or any software, documentation or data related to the Application Services or Benchling Installed Software, (c) use the Benchling Services (or any portion thereof) except to the extent permitted in Section 1.1 (Application Services) or Section 1.2 (Benchling Installed Software), or other than (i) in accordance with these Terms of Service and (ii) in compliance with Benchling’s Acceptable Use Policy (“AUP”) as well as all Laws, (d) modify, copy, or create any derivative work of any part of the Application Services or Benchling Installed Software (or any portion thereof), or (e) publish any results of benchmark tests run on the Application Services or Benchling Installed Software.

2.5. High Risk Activities & Prohibited Data. You will not (a) use the Application Services for High Risk Activities or (b) submit Prohibited Data to the Application Services, and you acknowledge that the Application Services are not designed for (and Benchling has no liability for) use prohibited in this Section 2.5. You acknowledge that Benchling shall be in no way liable for any damages whatsoever relating to or in connection with High Risk Activities or Prohibited Data.

2.6. Privacy Policy. You further acknowledge, agree to and are bound by Benchling’s Privacy Policy and Benchling agrees to process all of your personal information in accordance with such Privacy Policy. 

3. Usage Data.

3.1 Usage Data. Benchling may collect Usage Data and use it to operate, improve and support the Application Services and the Benchling Installed Software, and for other lawful business purposes, including benchmarking and reports. However, Benchling will not disclose Usage Data externally unless it is both (a) de-identified so that it does not identify you or your Insititution and (b) aggregated with data across other users. 

4. Proprietary Rights.

4.1. Reserved Rights. Neither party grants the other any rights or licenses not expressly set out in these Terms of Service.  As between the parties, and subject to Section 1.4 regarding rights your Institution may have to Customer Data, you (or your Institution) exclusively own and reserve all right, title and interest in and to Customer Data and Customer Materials, except as necessary for Benchling to process such data in accordance with these Terms of Service. .   Benchling retains all rights, title and interest in and to all Benchling Intellectual Property, with your rights limited to those expressly granted in these Terms of Service. 

4.2. Feedback. If either party provides feedback, suggestions, ideas, enhancement requests, recommendations, or other information (the “Feedback”) to the other, the other party may use the Feedback without restriction or obligation. All Feedback is provided “AS IS” and neither party will publicly identify the other as the source of any Feedback without the other party’s written consent.

5. Payments and Taxes.

5.1. Fees. Unless otherwise specified in a written agreement signed by both parties, your use of the Benchling Services under these Terms of Service is without charge.

6. Warranties and Disclaimers.

6.1. Mutual. Each party represents and warrants that it: (a) has the legal power and authority to enter into these Terms of Service; and (b) will use industry-standard measures to avoid introducing viruses, malicious code or similar harmful materials into the Application Services or Benchling Installed Software.

6.2. Disclaimers. Benchling Services are provided “as is” and “as available”. Except as expressly provided in these Terms of Service, and to the maximum extent permitted by applicable law, Benchling expressly disclaims all warranties, express or implied, statutory or otherwise, including, without limitation, warranties of merchantability, fitness for a particular purpose (even if advised of the purpose), accuracy, title, and non-infringement. In addition, except as expressly provided in these Terms of Service, Benchling does not warrant that access to the Application Services or Benchling Installed Software will be uninterrupted or error free, that Benchling Services will meet your needs, or that data will not be lost. Benchling’s warranties in Section 6.1 do not apply to issues arising from Third-Party Services or misuse or unauthorized modifications of the Application Services or Benchling Installed Software.

7. Term, Termination, and Survival.

7.1. Term. These Terms of Service shall commence on the date of your first access to the Benchling Services, until terminated by either party pursuant to these Terms of Service.

7.2. Termination. Either party may terminate these Terms of Service on thirty (30) days' prior written notice to the other party for any reason. Benchling may terminate your access to the Benchling Services immediately at any time for your material breach of these Terms of Service.

7.3. Data Export & Deletion.

7.3.1. You may export your Customer Data from the Application Services (or Benchling will otherwise make the Customer Data available to you) as described in the Documentation at any time during your access to the Application Services.

7.3.2. Beginning sixty (60) days after  termination or expiration of these Terms of Service, Benchling may irretrievably erase or archive to inaccessibility, all of your Customer Data stored in the Application Services. You may also request in writing that Benchling delete your Customer Data. You understand and agree that it may not be possible to completely delete your Customer Data from Benchling's records, and that your Customer Data may remain viewable to other users, to the extent that such Customer Data was copied or stored by other users as part of a Limited View or Public View project.

7.3.3. Nonetheless, Benchling may retain Customer Data or Confidential Information in accordance with its standard backup or record retention policies or as required by Law, subject to Section 12 (Security) and Section 11 (Confidentiality). 

7.4. Effect of Termination. Upon termination of these Terms of Service or termination of your access to the Application Services for any reason: (i) your right to use the Benchling Services will cease; and (ii) each party will promptly cease all use of, destroy, or return the other party’s Confidential Information (at Disclosing Party’s discretion), including for the avoidance of doubt all versions of the Documentation that you have in your possession.

7.5. Survival. Upon termination of these Terms of Service or termination of your access to the Application Services, all licenses granted hereunder shall immediately terminate. The following provisions shall survive any termination or expiration of these Terms of Service: Sections 2.4 (Restrictions on Use), 2.5 (High Risk Activities & Prohibited Data), 3 (Usage Data), 4 (Proprietary Rights), 6.2 (Disclaimers), 7.3 (Data Export & Deletion), 7.4 (Effect of Termination), 9 (Limitation of Liability), 10 (Indemnification), 11 (Confidentiality), 13 (General) and 14 (Definitions).

8. Suspension.

Benchling may suspend your access to the Application Services, access to Third Party Services via the Application Services and related services due to a Suspension Event but will use its best efforts to give you prior notice so that you may seek to resolve the issue and avoid suspension. Benchling may not give prior notice in exigent circumstances or for a suspension made to avoid material harm or violation of Laws. Once the Suspension Event is resolved, Benchling will promptly restore your access to the Application Services in accordance with these Terms of Service.

“Suspension Event” means: (a) You are in material breach of Section 2.3 (Unauthorized Access) or 2.4 (Restrictions on Use); (b) to prevent harm to other customers or third parties; or (c) to preserve the security, availability or integrity of the Benchling Services.

9. Limitation of Liability.

THE AGGREGATE LIABILITY OF BENCHLING (OR ITS LICENSORS OR SUPPLIERS) IN CONNECTION WITH THESE TERMS OF SERVICE OR THEIR 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 FIVE HUNDRED U.S. DOLLARS ($500). IN NO EVENT WILL BENCHLING (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, USE, DATA USE, OR INTERRUPTION OF BUSINESS, 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 THESE TERMS OF SERVICE AND SHALL SURVIVE REGARDLESS OF THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE.

10. Indemnification.

10.1. Indemnification by you. You, at your own cost, will defend Benchling from and against any third-party claim arising from (a) Customer Data, (b) Customer Materials or (c) your breach or alleged breach of Section 2.4 (Restrictions on Use) or 2.5 (High-Risk Activities & Prohibited Data), and will indemnify and hold harmless Benchling from and against any damages or costs awarded against Benchling (including reasonable attorneys’ fees) or agreed in settlement by you resulting from such claim.

10.2. Procedures. The indemnifying party’s obligations in this Section 10 are subject to receiving from the indemnified party: (a) prompt notice of the claim (but delayed notice will only reduce the indemnifying party’s obligations to the extent it is prejudiced by the delay); (b) the exclusive right to control the claim’s investigation, defense and settlement, and; (c) reasonable cooperation at the indemnifying party’s expense. The indemnifying party may not settle a claim without the indemnified party’s prior written approval if settlement would require the indemnified party to admit fault or take or refrain from taking any action (except regarding use of the Application Services when Benchling is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

10.3. Mitigation. In response to an infringement or misappropriation claim, if required by settlement or injunction or as Benchling determines necessary to avoid material liability, Benchling may: (a) procure rights for your continued use of the Application Services; (b) replace or modify the allegedly infringing portion of the Application Services to avoid infringement, without reducing the Application Services overall functionality; or (c) terminate these Terms of Service.

10.4. Exceptions. Benchling’s obligations in this Section 10 do not apply to claims resulting from: (a) modification or unauthorized use of the Application Services not in accordance with these Terms of Service and the Documentation; (b) use of the Application Services in combination with items not provided by Benchling, including Third-Party Services; or (c) use of the Application Services other than the most recent release, if Benchling made available (at no additional charge) a newer release that would avoid infringement. You will indemnify Benchling from all losses related to any claims excluded from Benchling’s indemnity obligation by the preceding sentence.

10.5. Exclusive Remedy. This Section 10 sets out the indemnified party’s exclusive remedy and the indemnifying party’s sole liability regarding third-party claims of intellectual property infringement or misappropriation covered by this Section 10.

11. Confidentiality.

The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) agrees not to use or disclose it except as expressly permitted in these Terms of Service, 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. In the event of any termination or expiration of these Terms of Service, each party will either return or, at the Disclosing Party's request, destroy the Confidential Information of the other party; provided however, that the Receiving Party may retain copies of the Disclosing Party's Confidential Information for routine backup and archival purposes, subject to the confidentiality obligations set forth in these Terms of Service. Notwithstanding the foregoing, the obligations set forth in this section shall not apply with respect to any information that: (a) prior to disclosure by the Disclosing Party, was already in the possession of the Receiving Party without violating any applicable confidentiality restrictions; (b) is already or becomes generally available to the public other than as a result of the Receiving Party’s breach of these Terms of Service; (c) was rightfully disclosed to the Receiving Party by a third party who didn’t violate any applicable restrictions; or (d) is independently developed by the Receiving Party without use of the Confidential Information of the Disclosing Party. The Receiving Party may make disclosures required by law or court order provided that, if practicable, the Receiving Party will provide adequate notice, if permissible, and assistance to the Disclosing Party for the purpose of enabling the Disclosing Party to prevent or limit the disclosure.

12. Security.

Benchling will implement and maintain appropriate information security policies and processes (including reasonable technical, administrative and physical safeguards) that are designed to prevent unauthorized access to or use or disclosure of any Customer Data as further described in Benchling’s Information Security Policy.

13. General.

13.1. Notices. All notices, requests, and approvals under these Terms of Service must be in writing if to you, to the relevant contact(s) designated in your account, and if to Benchling, to the Benchling Contact Information below. Notice will be deemed given: (1) upon receipt if personally delivered; (2) upon delivery if transmitted by email; (3) upon receipt if sent by certified or registered U.S. mail (return receipt requested), postage prepaid; or (4) one day after dispatch if by a commercial overnight delivery service.  Benchling may also send operational notices to you through the Application Services.

Benchling Contact Information

Attn: Benchling Legal Benchling, Inc. 680 Folsom St. Floor 8 San Francisco, CA 94107 Copy to: legal@benchling.com

13.2. Governing Law and Courts. The laws of the State of California govern these Terms of Service and any action arising out of or relating to these Terms of Service, without reference to conflict of law rules. The parties will adjudicate any such action in the state or federal courts of San Francisco County, California and each party consents to the exclusive jurisdiction and venue of such courts for these purposes.

In the event a dispute arises out of or in connection with these Terms of Service, the parties will attempt to resolve the dispute through good faith 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, in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one or more commercial arbitrators with substantial experience in resolving complex commercial contract disputes. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief.

13.3. Force Majeure. Benchling is not liable for a delay or failure to perform its obligations under these Terms of Service due to events beyond its reasonable control, such as, but not limited to, a strike, blockade, war, act of terrorism, riot, Internet or utility failures, natural disaster, pandemic or epidemic, or any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary license or consent (“Force Majeure”). 

13.4. Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.

13.5. Assignment. You may not assign or transfer any of your rights, obligations or benefits under these Terms of Service to any third party without the prior written consent of Benchling, except that you may transfer the Customer Data and Output (or portion thereof) to an organization or institution that has a Benchling Services Agreement or other executed agreement with Benchling that governs such organization or institution’s use of the Benchling Services. Benchling may freely assign or transfer its rights, obligations, or benefits under these Terms of Service without your consent. Any non-permitted assignment is void. These Terms of Service will bind and inure to the benefit of each party’s permitted successors and assigns. 

13.6. Entire Agreement. These Terms of Service are the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements, proposals or discussions regarding the subject matter herein. In these Terms of Service, headings are for convenience only and “including” and similar terms are to be construed without limitation. Terms in business forms, purchase orders or quotes used by either party will not amend or modify these Terms of Service; any such documents are for administrative purposes only. 

13.7. Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of these Terms of Service are held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of these Terms of Service remain in effect. Except where an exclusive remedy is provided, exercising a remedy under these Terms of Service, including termination, does not limit other remedies a party may have.

13.8. Updates. Benchling reserves the right to change the terms of these Terms of Service at any time upon prior notice to you. You may opt out of the changes within 30 days after the notice, in which event you may not be able to use certain updated features of the Application Services. Your continued use of the Application Services after the 30-day period shall constitute your acceptance of the changes. 

13.9. Amendments. Except for changes by Benchling as described here, no other amendment or modification of these Terms of Service will be effective unless in writing and signed by both parties’ authorized representatives.

13.10. Subcontractors. Benchling may use subcontractors and permit them to exercise its rights and fulfill its obligations, but Benchling remains responsible for their compliance with these Terms of Service and for its overall performance under these Terms of Service. 

13.11. No Third-Party Beneficiaries. There are no third-party beneficiaries to these Terms of Service.

13.12. Open Source. Benchling Installed Software distributed to you (if any) may include third-party open source software (“Open Source”) as listed in the Documentation or by Benchling upon request. If you elect to use the Open Source on a stand-alone basis, that use is subject to the applicable Open Source license and not these Terms of Service.

13.13. Export. You acknowledge that the Benchling Services are subject to the international trade laws of the U.S., including the U.S. Export Administration Regulations and U.S. Office of Foreign Assets Control sanctions programs, and other applicable jurisdictions (collectively “Trade Laws”), and you agree to comply with all Trade Laws in using the Benchling Services. You: (a) represent and warrant that you are not listed on any U.S. government list of prohibited or restricted parties or located in (or ordinarily resident in) a country that is subject to a U.S. government embargo or comprehensive sanctions, or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agree not to access, export or use the  Benchling Services in violation of any U.S. export embargo, prohibition or restriction (including those administered by the U.S. Bureau of Industry and Security and U.S. Office of Foreign Assets Control; (c) will not use the Benchling Services for any nuclear, chemical/biological weapons, missile or military-related end use prohibited by the Trade Laws; (d) will not submit to the Benchling Services any information controlled under the U.S. International Traffic in Arms Regulations; and (e) represent and warrant that any export-controlled technology provided to Benchling (including technology subject to the U.S. Export Administration Regulations) is properly authorized when sharing it with Benchling personnel.

13.15. Government Rights. To the extent applicable, the Application Services are “commercial computer software” as defined at 48 C.F.R. § 2.101 and 48 C.F.R. § 252.227-7014(a)(1) and as the term is used in 48 C.F.R. §§ 12.212 and 227.7202, and related services are “commercial services” as defined under 48 C.F.R. § 2.101. The Application Services are provided to U.S. federal, state, or local government customers and end users, for use by the government customer or on its behalf, subject to the terms of these Terms of Service and with only those rights as are granted to all other customers and users pursuant to the terms and conditions herein. All provisions herein apply to government customers and end users except to the extent prohibited by applicable law. If any provision of these terms is so prohibited, such provision will be deemed modified only to the extent reasonably necessary to conform to applicable law, giving maximum effect to the terms as written. Use, reproduction, release, modification, disclosure or transfer of the Application Services is governed solely by the terms of these Terms of Service, and all other use is prohibited.

14. Definitions.

“Application Services” means the proprietary cloud service, hosted on servers under the control or direction of Benchling, and as modified from time to time.

“Benchling Installed Software” means Benchling’s proprietary software components or tools made available for installation on your computer systems or devices, including but not limited to for the purpose of integrating the Application Services with Third-Party Services.

“Benchling Intellectual Property” means Benchling’s proprietary technology, including the Benchling Services, Benchling’s website, software tools, hardware designs, algorithms, software, user interface, designs, architecture, network designs, know-how, and trade secrets, and all Intellectual Property Rights therein throughout the world (whether owned by Benchling or licensed to Benchling by a third party), as well as templates of the reports, models and calculations referred to below.

"Benchling Services" means the Application Services, Benchling Installed Software, and the Documentation. The Benchling Services do not include Third Party Services.

“Business Hours” means, for U.S. users: 6:00 a.m. to 5:00 p.m. Pacific Time, Monday through Friday, and for non-U.S users: 9:00 a.m. to 5:00 p.m. Central European Time, Monday through Friday. Business Hours exclude federal and national holidays.

"Confidential Information" means any nonpublic information disclosed by or on behalf of one party (as discloser) to the other party (as recipient) under these Terms of Service in any form, which (a) the discloser identifies as “Confidential” or “Proprietary” or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Confidential Information includes (i) Benchling’s pricing, technical and performance information about the Benchling Services as well as all technology, software, or proprietary information underlying the Benchling Services, (ii) Customer Data and Customer Materials and (iii) trade secrets of either party.

"Customer Data" means any data or other content or information submitted by you or on your behalf to your Application Services account, including from Third-Party Services, as well as any Output.

“Customer Materials” means materials, systems and resources that you make available to Benchling in connection with the Benchling Services.

“Documentation” means the then current version of the readme and help files, knowledge base and other documentation for the Application Services made available at help.benchling.com and docs.benchling.com.

“High Risk Activities” means activities where use of the Benchling Services could lead to death, personal injury or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles or air traffic control.

"Intellectual Property Rights" means rights, priorities and privileges, under the laws of any jurisdiction worldwide associated with (a) works of authorship (including exclusive exploitation rights, copyrights, copyright licenses and moral rights), trade secrets, trademarks, trademark licenses, patents, patent licenses, technology, know-how, processes and other proprietary rights, as well as (b) registrations, protection, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the above and (c) all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages from the same.

“Laws” means all relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and export of technical or personal data.

"Output" means  the reports, models, calculations and similar information generated directly from Customer Data by you, or by Benchling via the Benchling Services. For clarity, Output excludes the Benchling Intellectual Property and the templates of the reports, models, and calculations set forth in this Section.

“Policies” means the AUP, Information Security Policy, SLA and Support Policy.

“Prohibited Data” means (a) personal health information and personal health data (including but not limited to: personally identifiable human sample data, medical records or an individual's health care claim information); (b) personally identifiable genetic or biometric information; (c) non-public, government-issued ID numbers; (d) personal financial data, account numbers, or other sensitive identifying number (e.g. passport number, driver's license numbers, Social Security Numbers, Tax Identification Number, or account numbers for a personal debit card or credit card, including, without limitation, cardholder data or sensitive authentication data, as such terms are defined under the Payment Card Industry Data Security Standards); (e) an individual’s username or email address in combination with a password or security question that would permit access to such individual’s account; (f) geolocation data that could identify the precise location of any individual; (g) any personally identifiable information regarding an individual under the age of 16; (h) any data regarding an individual’s criminal convictions, offenses, or records; (i) any data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, or data concerning an individual’s sex life or sexual orientation; or (j) any other data that (1) is classified as "sensitive," "special category" or a similar categorization pursuant to applicable data protection laws, including, without limitation (i) the Health Insurance Portability and Accountability Act; and (ii) Gramm-Leach-Bliley Act; (2) for which there is no consent, or other necessary authority, from the owner of the data to be submitted to or stored in the Application Services; or (3) that, if subject to a breach, is likely to result in risk to the rights and freedom to the related individual.

“SLA” means the Service Level Agreement describing the Application Services performance and availability metrics.

“Support” means support for the Application Services as described in Section 1.7 (Support).

“Third-Party Services” means any product, add-on, services or platform not provided by Benchling that you use with the Benchling Services.

“Trials and Betas” means access to the Application Services (or Application Services features) on a free, trial, beta or early access basis.

"Usage Data" means technical logs, account and login data, and data and learnings that Benchling collects in connection with your use of the Application Services and Benchling Installed Software (e.g., frequency of logins and features and functionalities being utilized, and actions taken within the Application Services). For clarity, Usage Data does not include Customer Data.