Last Updated: September 12, 2019
PLEASE READ CAREFULLY THIS END-USER LICENSE AGREEMENT ("AGREEMENT"), WHICH CONTAINS THE EXCLUSIVE AGREEMENT BETWEEN BENCHLING, INC., A DELAWARE CORPORATION WITH OFFICES AT 555 MONTGOMERY STREET, SUITE 1700, SAN FRANCISCO, CA 94111 ("BENCHLING"), AND YOU ( "CUSTOMER"), REGARDING ACCESS AND USE OF BENCHLING SYSTEM FOR YOUR OWN PERSONAL PURPOSES ONLY (AND NOT ON BEHALF OF OR IN CONNECTION WITH ANY ENTITY). YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, UNDER ALL APPLICABLE LAWS. BY ACCESSING OR USING THE BENCHLING SYSTEM ("ACCEPTANCE"), YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT WHERE CUSTOMER AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, YOU ARE PROHIBITED FROM ACCESSING OR USING THE BENCHLING SYSTEM.
1.1 "Benchling Data" means all data generated by the Benchling System, including without limitation, service and usage data. For clarity, Benching Data excludes Customer Data and Output.
1.2 "Benchling System" means the software-as-a-service service made available to Customer by Benchling, which are hosted on servers under the control or direction of Benchling and provided for Customer to access and use via the internet, including any derivatives, improvements, enhancements and/or extensions related thereto.
1.3 "Confidential Information" means any information disclosed by either party to the other 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, 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 shall be deemed Confidential Information of Customer without any need for designating the same as confidential or proprietary.
1.4 "Customer Data" means any data or other content or information provided by or on behalf of Customer to Benchling via the Benchling System, including any Output.
1.5 "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.
1.6 "Output" means the report(s) generated directly from Customer Data via the Benchling System, excluding the templates of such reports.
2.1 Access. Subject to Customer's full compliance with all the terms and conditions of this Agreement, Benchling will provide Customer with access to the Benchling System in accordance with this Agreement solely for Customer’s use of the Benchling System for personal purposes. 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 and providers of hosting services.
2.2 Passwords. Benchling reserves the right to periodically change issued passwords. Benchling will provide prompt notice to Customer of any such password changes.
3.1 Equipment. Customer will be responsible for obtaining and maintaining at its expense all the necessary computer hardware, software, services, modems, connections to the internet and other items operated or provided by third parties ("Third Party Services") as required for Customer's access and use of the Benchling System via the internet. Benchling is not responsible for the operation of any Third Party Services nor the availability or operation of the Benchling System to the extent such availability and operation is dependent upon Third Party Services. Benchling does not make any representations or warranties with respect to Third Party Services or any third party providers.
3.3 Unauthorized Use. Customer will use reasonable efforts to prevent any unauthorized use of the Benchling System, Benchling Data or the Software (as defined in Section 4.3 below), and will promptly notify Benchling in writing of any unauthorized use that comes to Customer's attention and provide all reasonable cooperation to prevent and terminate such use.
4.1 License to Customer. Subject to Customer's full compliance with all the terms and conditions of this Agreement, Benchling hereby grants Customer a limited, non-exclusive, non-transferable license, without right of sublicense, during the Term, to access and use the Benchling System solely for Customer’s own personal purposes.
4.2 Customer Data Usage. Customer hereby grants Benchling a license to use Customer Data and Output for the sole purposes of: (a) providing the Benchling System and related services to Customer as set forth in this Agreement; (b) testing, improving, and providing Benchling's products and services (solely in aggregated and anonymized form and in a manner that does not disclose Customer Data, Output or other Confidential Information of Customer); and (c) enforcing its rights under this Agreement.
4.3 License Restrictions. Customer shall not, and shall not permit any third party to: (a) decompile, disassemble or reverse engineer the Benchling System, or otherwise attempt to discover the source code, object code, logic, process or underlying methodology, structure, ideas or algorithms of the Benchling System, or related trade secrets, or any software, documentation or data related to the Benchling System ("Software"); (b) use the Benchling Data or Benchling System (or any portion thereof) for, on behalf of, or in connection with any employer, client, pharmaceutical company, institution, university, lab, or any other entity; (c) use the Benchling Data or Benchling System (or any portion thereof) except to the extent permitted in Section 4.1, or other than (i) in accordance with this Agreement and (ii) in compliance with all applicable laws and regulations; (d) modify or create any derivative work of any part of Benchling Data or Benchling System (or any portion thereof); (e) market, sublicense, publish, distribute, reproduce, resell, assign, transfer, rent, lease, loan, or otherwise permit third parties to use the Benchling Data or Benchling System (or any portion thereof); (f) use the Benchling Data or Benchling System (or any portion thereof) for commercial time-sharing or service-bureau use or for any purpose other than its own internal use; or (g) publish any results of benchmark tests run on the Benchling System.
4.4 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.
5.2 Taxes. Customer shall pay any sales, use, value-added, property, and other taxes, withholdings and similar charges based on or arising from this Agreement (other than taxes based on Benchling's net income).
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 OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF ADVISED OF THE PURPOSE), ACCURACY, TITLE, 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, OR THAT THE BENCHLING DATA OR BENCHLING SYSTEM (OR ANY PORTION THEREOF) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
7.1 Term. This Agreement shall commence on the date of Acceptance by Customer, until terminated by either party pursuant to this Agreement.
7.2 Termination. Either party may terminate this Agreement on thirty (30) days' prior written notice to the other party with or without cause. Benchling may suspend or terminate Customer's free access to the Benchling System immediately at any time upon notice to Customer for any breach of this Agreement by Customer.
7.3 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(b) and (c), 4.3, 4.4, 5, 6, 7.3, and 8 through 15 (inclusive).
THE AGGREGATE LIABILITY OF BENCHLING (OR ITS LICENSORS OR SUPPLIERS) 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 FIVE HUNDRED U.S. DOLLARS ($500). IN NO EVENT WILL BENCHLING (OR ITS LICENSORS OR SUPPLIERS) 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.
9.1 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 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), and all Intellectual Property Rights therein. To the extent Customer has or obtains any right, title, or interest in the Benchling Data or Benchling System (or any portion thereof) (excluding the Customer Data), or any Intellectual Property Rights therein, Customer hereby assigns, and agrees to assign, without further consideration, to Benchling all such right, title, and interest Customer may have or obtain.
9.2 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 Output, 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. Notwithstanding the foregoing, Customer acknowledges and agrees that if Customer uses the Benchling System for, on behalf of, or in connection with any entity, such entity may have certain rights over the Customer Data and Output (such as the right to access, edit, export, or delete, or right to grant access to third parties) and may request Benchling to transfer the Customer Data and Output for which it has rights from Customer’s Personal Account over to such entity. Customer further acknowledges and agrees that Customer may be subject to any agreement Customer has entered into with such entity, and such agreement and/or such entity, not this Agreement or Benchling, decides and controls what rights such entity may have over Customer’s Customer Data and Output.
9.3 Feedback. Either party may voluntarily provide feedback, suggestions, ideas, enhancement requests, recommendations or other information (the "Feedback") to the other about the other party's Confidential Information and/or products and services. Each party shall be free to use or exploit the Feedback provided to it without further consideration or compensation to the other party.
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 each receiving party may retain copies of the disclosing party's 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 without restriction prior to the first disclosure hereunder as shown by records or files; (b) is already or becomes generally available to the public after the time of disclosure other than as a result of any improper action by the receiving party; (c) was rightfully disclosed to it by a third party without restriction; or (d) is independently developed by either party without use of the Confidential Information from the other party. The receiving party may make disclosures required by law or court order provided that, if practicable, the receiving party provides adequate notice and assistance to the disclosing party for the purpose of enabling the disclosing party to prevent and/or limit the disclosure.
All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
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 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 arbitrator(s) 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. For all purposes of this Section 13, unless otherwise elected by Benchling in writing for a particular instance, the sole jurisdiction and venue for actions related to the subject matter hereof shall be the state or federal courts of San Francisco County, California, and both parties consent to the jurisdiction of such courts. Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER AND BENCHLING IS EACH WAIVI‘NG THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
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.
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.