Last Updated: August 20, 2018
PLEASE READ CAREFULLY THESE CUSTOMER TERMS AND CONDITIONS ("AGREEMENT"), WHICH CONTAIN THE EXCLUSIVE AGREEMENT BETWEEN BENCHLING, INC., A DELAWARE CORPORATION WITH OFFICES AT 555 MONTGOMERY STREET, SUITE 1100, SAN FRANCISCO, CA 94111 ("BENCHLING"), AND YOU (TOGETHER WITH THE ENTITY FOR WHICH YOU REGISTER, ACCESS OR USE THE BENCHLING SYSTEM, "CUSTOMER"), REGARDING ACCESS AND USE OF BENCHLING SYSTEM. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, UNDER ALL APPLICABLE LAWS AND ON BEHALF OF CUSTOMER. 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. FOR THE PURPOSES OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, THE "ORDER FORM" SHALL MEAN THE ORDER PAGE ON THE BENCHLING'S WEBSITE TO WHICH THE BENCHLING SYSTEM RELATES. 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 with the functionalities described in the applicable Order Form(s), 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. 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.
2.3 Professional Services. Benchling will provide the Professional Services as Benchling expressly agreed to and as set forth in the Order Form.
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.
3.2 Access. Customer will cooperate with Benchling in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services. Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer's knowledge or consent.
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 (except as permitted under Section 17) license, without right of sublicense, during the Term, to access and use the Benchling System up to the maximum number of Authorized Users set forth on the applicable Order Form(s) and solely for its internal business 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) 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; (c) modify or create any derivative work of any part of Benchling Data or Benchling System (or any portion thereof); (d) 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); (e) 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 (f) 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.
5.1 Fees. Customer agrees to pay, and shall pay, the fees set forth above on the Order Form(s) within thirty (30) days of Customer's receipt of an invoice from Benchling. 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.
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).
5.3 Expenses. Customer will reimburse Benchling for reasonable pre-approved travel and living expenses incurred by Benchling in performing services at sites other than Benchling facilities at Customer's request (including without limitation, any services relating to setup, training, technical support, and consulting).
6.1 Mutual. Each party represents and warrants that: (a) such party is duly organized, validly existing, and in good standing under the laws of the state of its organization, and has the full power and authority to enter into and perform its obligations under this Agreement; and (b) 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.
6.2 Disclaimers. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT 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 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, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, 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, and shall continue for the Term specified on the Order Form.
7.2 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; (ii) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within ninety (90) days; or (iii) the other party is adjudged bankrupt or insolvent. Benchling may suspend or terminate Customer's free access to the Benchling System without cause at any time upon notice.
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, 4.3, 4.4, 5, 6.3, 7.4 and 8 through 17 (inclusive).
EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, 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 THE AMOUNT OF FEES PAID OR PAYABLE 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. EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, 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.
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.
10.1 Indemnity. Subject to Section 10.2, 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 an unaffiliated third party claim: (a) with respect to Benchling, that the Benchling System infringes any United States patent (issued sixty (60) days or more before Customer's first access to the Benchling System hereunder) or any copyright or misappropriates any trade secret; or (b) with respect to Customer, that the Customer Data infringes or otherwise violates any third-party's Intellectual Property Rights, privacy, or other proprietary rights.
10.2 Exclusions. Benchling's indemnity obligations do not apply with respect to portions or components of the Benchling System (a) not created by Benchling, including any data or content transmitted or provided by Customer, such as Customer Data; (b) where Customer's use of the Benchling System is not strictly in accordance with this Agreement and the applicable documentation or applicable law; (c) combined with third-party software, hardware, or data; or (d) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement. Customer will indemnify Benchling from all Losses related to any claims excluded from Benchling indemnity obligation by the preceding sentence.
10.3 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 (which consent shall not be unreasonably withheld), 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.
10.4 Remedies. In the event any portion of the Benchling System is held or believed by Benchling, or any portion of the Customer Data is held or believed by 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 Data) may, 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; (c) remove and disable the Infringing Materials; or (d) if none of the foregoing remedies is commercially feasible, terminate this Agreement.
10.5 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, misappropriation, or violation of third party intellectual property rights relating to the Benchling System and the subject matter of this Agreement.
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.
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.
A party shall not assign nor transfer any obligations or benefit under this Agreement without the written consent of the other party, provided that, without the other party's consent, a party may assign this Agreement freely without restriction to an affiliated entity or to a successor to substantially all of its business or assets to which this Agreement relates. 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 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 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. Benchling reserves the right to change the terms of this Agreement at any time upon prior notices to Customer. Customer may opt out of the changes within 30 days after the notice, in which event Customer may not be able to use certain updated features of the Services. Customer's continued use of the Services after the 30-day period shall constitute its acceptance of the changes. Except for changes by Benchling as described here, no other amendment or modification of this Agreement will be effective unless in writing and signed by both parties.