“Authorized User(s)” means an employee or contractor of Customer who has been authorized by Customer to use or access the System on Customer’s behalf.
“Confidential Information” means non-public information of a Party, including, but not limited to, programs, source code, data, listings, flowcharts, manuals, instructions, notes and other information related to the business of that Party in any form. The Software is TetraScience’s Confidential Information. The term Confidential Information shall not include: (a) information that was in the receiving Party’s possession or was known to it prior to its receipt from the disclosing Party as evidenced by the written records of the receiving Party; (b) information that is or becomes publically available without the fault of the receiving Party; (c) information that is or becomes rightfully available on an unrestricted basis to the receiving Party from a source other than the disclosing Party; or (d) information that was independently developed by the receiving Party as evidenced by the written records of the receiving Party.
“Customer Data” means the data generated by Customer and uploaded to the System using the TetraScience LinkTM.
“Software” means the object code version of the System and any associated documentation as provided by TetraScience to Customer.
“Support Services” mean technical support services available to Authorized Users for the System as described at http://www.tetrascience.com/terms, which may be updated by TetraScience from time to time.
“System” means the TetraScience Software product for monitoring laboratory equipment, whether hosted by TetraScience (and accessed by Customer via the TetraScience Website) or Customer.
“TetraScience Website” means www.TetraScience.com.
2. Grant of Access or License.
2.2. License. This Section 2.2 will only apply if Customer has elected a Subscription to the System (as indicated in this Agreement). Subject to the terms and conditions set forth herein, TetraScience grants Customer the non-exclusive, non-transferable (except as expressly set forth in Section 10.1) right and license for the Term (as defined in Section 6 below) to install and use a single copy of the Software during the Term solely for Customer’s internal business purposes, and to make a single back-up copy. Customer may only permit its Authorized Users to use the System in accordance with the terms of this Agreement. Customer will not have the right to make any modification to the System or Software. The license does not include, and Customer shall not be entitled to have access to, any source code with respect to the System. Customer shall not have any right, title, or interest in the System or Software or any other property of TetraScience except for those rights expressly granted to Customer hereunder. TetraScience reserves all rights not expressly granted by it to Customer under this Agreement.
2.3. Restrictions on Use. Customer shall not, and shall not allow any Authorized User to, modify, rent, lease, distribute, create a derivative or collective work of, reverse-engineer, decompile or disassemble all or part of the System. Customer and Authorized Users shall make no attempt to (a) resell or transfer access to the System; (b) use the TetraScience Website or System to conduct illegal activities; (c) transmit, distribute or introduce documents or other material that infringe or violate any intellectual property rights, publicity/privacy rights, law or regulation, that are defamatory, obscene, or that contain any viruses or programming routines intended to damage or disrupt the System; (d) cause damage to, or circumvent the security or authorization procedures of, the TetraScience Website or System; (e) view unauthorized portions or areas of the TetraScience Website or System; (f) use the System to transmit unsolicited, non-germane communications, including “spam” mail; (g) tamper with email headers or other identifying features of messages sent within the System; (ix) create or forward chain letter or pyramid schemes of any kind; or (h) cancel or postpone posted messages, other than the Customer’s own, without appropriate authorization to do so. Customer shall not, and shall not allow any Authorized User to, remove any proprietary notice of TetraScience from the TetraScience Website or System or any of its documentation. Except as expressly provided in this Agreement, all rights, title and interest in and to the TetraScience Website and System remain with TetraScience or its licensors.
2.4. Customer Requirements. Customer shall provide and be responsible for (a) all telecommunications and other equipment necessary to access or use the System and (b) software for accessing the Internet as specified in writing by TetraScience, which may be changed upon reasonable written notice to Customer. If Customer has elected a License to the System, Customer will also be responsible for all equipment required to host the Software.
2.5. Data License. Subject to these terms and conditions, Customer grants TetraScience a royalty-free, non-exclusive license to use the Customer Data to provide Support Services to Customer. Except as expressly provided in this Agreement, all rights, title and interest in and to the Customer Data remain with Customer.
2.6. System Data. TetraScience may collect and use data related to Authorized Users’ use of the System (“System Data”), including, but not limited to, for purposes of marketing, modifying and improving the System and Support Services, provided that TetraScience shall not disclose to any third party any System Data to the extent such System Data would identify Customer or an Authorized User or otherwise include any Customer Data.
3. Representations and Warranties.
3.1. Mutual Representations. Each Party represents and warrants to the other that it has full power and authority to enter into and perform its obligations under this Agreement.
3.2. TetraScience Representations. TetraScience represents and warrants to the Customer that it will provide the Support Services in a good and workmanlike manner.
3.3. Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, TETRASCIENCE MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUPPORT SERVICES OR THE SYSTEM AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES FOR THE SUPPORT SERVICES AND THE SYSTEM, INCLUDING, BUT NOT LIMITED TO, EXPRESS WARRANTIES OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE. FURTHER, TETRASCIENCE DOES NOT WARRANT THAT THE SYSTEM WILL BE ERROR-FREE OR BE PROVIDED (OR BE AVAILABLE) WITHOUT INTERRUPTION. TETRASCIENCE DISCLAIMS LIABILITY RESULTING FROM THE ACTIONS OF ANY SYSTEM USER OR ANY THIRD PARTY ACTIONS OR SUCH PARTY(S) FAILURES TO ACT. CUSTOMER IS SOLELY RESPONSIBLE FOR PROTECTING THE SECURITY OF CUSTOMER’S DATA AND PROGRAMS ON CUSTOMER’S SYSTEMS AND FOR PERFORMING ROUTINE BACKUP PROCEDURES OF CUSTOMER’S DATA AND PROGRAMS.
4. Ownership. As between TetraScience and Customer, the System and all materials, methodologies, websites and software (both the object code and source code) provided by TetraScience hereunder, together with all intellectual property rights therein, are the sole and exclusive property of TetraScience. TetraScience shall be the sole and exclusive owner of all modifications to the TetraScience Website, System, and Software, including any modifications suggested or made by Customer or an Authorized User (“Feedback”) provided, however, TetraScience shall not use Customer’s name or the name of any employee in any publicity, news release, publication or advertising on or via any media without the prior written consent of Customer and; provided further, TetraScience shall defend, indemnify and hold harmless Customer and its officers, directors, agents and employees from and against all claims, liabilities, losses or damages, including but not limited to, any indirect, special, incidental, consequential or exemplary damages (including, but not limited to, lost profits) that TetraScience may sustain or incur which may arise from or in connection with TetraScience’s use of the Feedback.
5.1. Protection of Confidential Information. Each Party acknowledges that the other Party owns or possesses valuable Confidential Information. Each Party shall hold such Confidential Information of the other Party in strict confidence and will not make any disclosures without the express written consent of a duly authorized representative of the disclosing Party, except to its personnel as needed to perform under this Agreement, and will take all reasonable steps to maintain the confidentiality of all Confidential Information of the disclosing Party but in no event less than the standard of care it accords its own Confidential Information. Upon Agreement termination, all copies of any Confidential Information of one Party in the possession of the other Party shall be destroyed or returned to the disclosing Party. Notwithstanding the provisions of this Section 5, neither Party is obligated to erase Confidential Information contained in an archived computer system backup made in accordance with such Party’s security or disaster recovery procedures, provided that such archived copy will (a) eventually be erased or destroyed in the ordinary course of such Party’s data processing procedures; and (b) remain fully subject to these obligations of confidentiality until such destruction or erasure.
5.2. Permitted Disclosure. In the event that a Party is compelled by court order, subpoena, or other requirement of law to disclose Confidential Information, the Party will provide the other Party with prompt notice (unless such notice is prohibited by law) so that the Party may, at its option and expense, seek a protective order or other remedy.
6. Term and Termination.
6.1. Term. After the Initial Term (as set forth in the Agreement), the Agreement will automatically renew for successive periods equal to the Subscription Commitment (each a “Renewal Term”) unless either Party notifies the other, in writing, at least thirty (30) days prior to the expiration of the Initial Term or Renewal Term, as applicable, of its intent not to renew. The Initial Term and each Renewal Term, collectively the “Term”.
6.2. Termination for Convenience. Customer may terminate this Agreement with ninety (90) days’ written notice. In the event Customer terminates for convenience, Customer shall not be entitled to any refund of fees. TetraScience may terminate this Agreement with one hundred twenty (120) days’ written notice and shall refund to Customer any pro rata portion of fees applicable to the remainder of the Term.
6.3. Termination for Cause. Either Party may terminate this Agreement upon written notice if the other Party materially breaches this Agreement (failure to pay any Fees due is a material breach), provided that the non-breaching Party gives the breaching Party thirty (30) days’ written notice of the breach, and the breaching Party fails to cure within such thirty-day period. Any notice of termination shall state the reason for and effective date of the termination.
6.4. Termination for Insolvency or Bankruptcy. Either Party may terminate this Agreement upon at least thirty (30) days’ prior written notice to the other Party if the other Party: (a) ceases or threatens to carry on its business, liquidates or dissolves its business, or disposes of a substantial portion of its assets; (b) becomes insolvent or makes an assignment for the benefit of creditors, fails generally to pay its debts as they become due, or otherwise is likely to become insolvent; (c) voluntarily or involuntarily becomes the subject of any proceeding relating to bankruptcy, insolvency, receivership, liquidation or other similar proceeding; or (d) has a material adverse change in its financial condition or ability to perform its obligations under this Agreement.
6.5. Effects of Termination.
(a) Discontinued use of the System. Upon termination, Customer will promptly discontinue using the System and Software.
(b) Return of Customer Data. This Section 6.5(b) will only apply if Customer has elected a Subscription to the System. TetraScience will make Customer Data available to Customer through the TetraScience Website for a period of thirty (30) days after termination or expiration of this Agreement, TetraScience shall deliver to Customer all Customer Data.
(c) Survival. Any termination of this Agreement shall be without prejudice to any obligation by either Party which shall have accrued and then be owing. Following any termination of this Agreement the applicable provisions of Sections 1, 2.3, 2.6, 4, 5, 6.2, 6.5, 7, 8, and 9 shall remain in full force and effect in accordance with their terms.
7.1. By Customer. Upon prompt notification, Customer will indemnify, defend, and hold harmless TetraScience, its affiliates, and its licensors, and their respective officers, directors, employees, and agents, from and against any and all third party claims, suits, actions, demands, liabilities, expenses and/or losses, including reasonable attorneys’ fees and expenses, (“Claims”) arising out of or relating to (a) any gross negligence or willful acts or omissions of Customer or its agents or (b) Customer’s use of the System or Software outside the scope of or in breach of this Agreement.
7.2. By TetraScience. Upon prompt notification, TetraScience will indemnify, defend, and hold harmless Customer and its officers, directors, employees, and agents from all Claims to the extent arising out of or related to (a) any gross negligence or willful acts or omissions of TetraScience or its agents, or (b) any allegation that the System or Software infringes any U.S. patent, copyright, trademark or trade secret of a third party.
7.3. Infringement. If Customer is prevented from using the System due to a claim of infringement, TetraScience will at its own expense: (a) procure the right to allow Customer to continue to use the System or (b) replace or modify the System to make it non-infringing. TetraScience’s obligations pursuant to this Section 8 will not apply to the extent that any Claim results from any unauthorized modification or use of the System.
8. Limitation of Liability.
NEITHER TETRASCIENCE, ITS AFFILIATES NOR ITS AGENTS, NOR THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES WILL UNDER ANY CIRCUMSTANCES BE LIABLE UNDER ANY THEORY OF RECOVERY, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), UNDER WARRANTY, OR OTHERWISE, FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSS INCLUDING: DAMAGE TO OR LOSS OF PROPERTY OR EQUIPMENT; LOSS OF REVENUE; LOSS OF CUSTOMER DATA; OR LOSS OF USE OF CUSTOMER’S MATERIAL, EQUIPMENT OR SYSTEMS. CUSTOMER EXPRESSLY AGREES THAT THE REMEDIES PROVIDED HEREIN ARE EXCLUSIVE AND THAT UNDER NO CIRCUMSTANCES SHALL THE TOTAL AGGREGATE LIABILITY OF TETRASCIENCE UNDER ANY THEORY OF RECOVERY, WHETHER BASED IN CONTRACT, IN TORT, UNDER WARRANTY, OR OTHERWISE, EXCEED THE TOTAL PRICE ACTUALLY PAID TO TETRASCIENCE UNDER THE APPLICABLE SUBSCRIPTION AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
9.1. Assignment. This Agreement is binding upon and for the benefit of the Parties and their respective successors and assigns. Neither Party may assign this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed. TetraScience may, without obtaining prior written consent, assign its rights, interests and obligations in this Agreement to any parent, subsidiary or Affiliate of such Party, or to a successor of substantially all of such Party’s assets or stock. Any other purported assignment shall be void.
9.2. Relationship of the Parties. Customer and TetraScience are independent contractors. Neither Party has the authority to bind or make any commitment on behalf of the other Party. None of either Party’s employees are entitled to any employment rights or benefits of the other Party.
9.3. Notices. Any notice given under this Agreement shall be deemed delivered when delivered by hand, by certified mail, by air courier, or via facsimile or e-mail (confirmed by return receipt transmission), to the Parties at their respective addresses set forth in the Subscription Agreement, or at such other address as either Party may provide to the other in writing from time to time. All notices to Customer will be cc’d to the Office of General Counsel at the same address or via email to any of the authorized users.
9.4. Remedies; Waiver. All rights and remedies of the Parties are cumulative. The failure of either Party at any time to enforce or require performance of any provisions of this Agreement will not be construed to be a waiver of such provisions.
9.5. Choice of Law. This contract shall be interpreted and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of law’s provisions. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
9.6. Disputes. The Parties will attempt in good faith to promptly address and resolve by negotiation any dispute, legal controversy or claim arising out of or relating to this Agreement or its subject matter, interpretation, performance or enforcement (whether in contract, statute, tort (such as negligence) or otherwise) (each a “Dispute”). If necessary for resolution, the Dispute must be escalated to appropriate senior management of each party. Any Dispute that remains unresolved for a period of twenty-one (21) days after written notice of the Dispute may be brought before an appropriate court. Nothing in this Section shall be deemed to prevent seeking and obtaining immediate injunctive relief. Any action by Customer against TetraScience arising out of or relating to this Agreement may be brought only in the state and federal courts located in Boston, Massachusetts and Customer hereby consents to such jurisdiction. The Parties acknowledge that either Party may be entitled to seek equitable and/or injunctive relief to protect such Party’s interest under this Agreement.
9.7. Entire Agreement; Amendment; Severability. This Agreement, including the Subscription Form, encompass the entire Agreement between Customer and TetraScience with respect to the subject matter hereof and supersede all prior representations, agreements and understandings, written or oral. This Agreement may not be modified except by written instrument signed by the duly authorized representatives of both Parties; provided that TetraScience’s acceptance of Customer’s purchase order or other forms related to the provision of products and services pursuant to this Agreement shall not constitute an acceptance of any terms therein and TetraScience shall not be bound by any such purchase order or form. If any provision, or portion thereof, of this Agreement is or becomes invalid under any applicable statute, rule of law or court order, it is to be deemed stricken and the rest of the Agreement shall remain in full force and effect.
9.8. Force Majeure. There may be periods where access to the System is delayed, limited or not available. TetraScience shall not be liable for any loss caused, directly or indirectly, due to viruses, unauthorized access, systems failure, failure or technical difficulties with software, hardware or other equipment, downtime for hardware and software maintenance, failure of communications lines, telephone or other interconnect problems, theft, government restrictions, terrorist acts, insurrection, riots, flooding, strikes, failure of utility services, accidents, adverse weather or events of nature, or other conditions beyond the control of TetraScience.
9.9. Compliance with Laws. TetraScience and Customer agree to comply with all applicable laws and regulations in performing under this Agreement.
10.10 Publicity. Except as expressly permitted herein, neither Party shall use the name, logo, trade name, service mark, or trademark, or any simulation, abbreviation, or adaptation of same, or the name of the other Party or its subsidiaries for publicity, promotion, or similar non-regulatory uses without such Party’s prior written consent.
Maintenance and Support Services for Customer-Hosted System
1. Error Correction. TetraScience shall furnish available solutions to address verifiable and reproducible errors in the TetraScience System that prevent the TetraScience System from operating in material conformity with the applicable documentation (an “Error”). To address an Error, TetraScience may provide a workaround or, as applicable, TetraScience may also address an Error in a subsequent update or release of the TetraScience System at TetraScience’s discretion (“Error Correction”). If erroneous or inadequate information is provided, then TetraScience cannot be held accountable for delays in, or improper performance of, the Maintenance and Support Services. Under no circumstances does TetraScience warrant or represent that all Errors can or will be corrected.
2. Upgrades. TetraScience shall provide Customer with Upgrades at no additional charge. Delivery of Upgrades may be in the form of a digital download. Customer will provide TetraScience with a secured remote connection (e.g. VPN) to Customer’s infrastructure to implement upgrade. TetraScience is only obliged to provide support for the most recent version of their software. “Upgrade” is any minor or major upgrade, update, revision, service pack or patch, or hot fix to the TetraScience System which contains Error Corrections and may also contain certain new or improved functionality.
3. New Versions. TetraScience reserves the right to charge additional fees for a New Version. A “New Version” is a new version of the TetraScience System that includes or adds substantially new features to the TetraScience System, including new modules, new technology and/or any major enhancements.
4. Customer Obligations. In order for Customer to obtain the Maintenance and Support Services described herein, Customer shall fulfill the following obligations, failing which TetraScience is not responsible for performing Maintenance and Support Services, or their completion or results:
a. Customer shall promptly provide TetraScience all information, remote access and cooperation necessary for diagnosis of reported Errors, including the configuration of hardware and system operating software on the applicable hardware, the communication interfaces, insofar as these are significant for the TetraScience System, a log of components that have been changed by Customer since an Error has been identified by Customer, and a description of any specific programs which are used in conjunction with the TetraScience System, including software that runs on the host hardware.
b. Customer shall operate the TetraScience System in accordance with the recommended minimum hardware and third party software configuration provided by TetraScience, and shall maintain a back-up of the system on which the TetraScience System is installed. Customer shall be responsible for procuring, installing and maintaining all applications, equipment, telephone lines, communications interfaces and other hardware and software necessary to operate the TetraScience System and to obtain from TetraScience the Maintenance and Support Services set forth in this Agreement.
c. Customer shall appoint a representative responsible for coordinating Maintenance and Support Services, who (or whose proxy) shall be trained regarding the TetraScience System, and shall be available at all times during normal business hours. Customer shall notify TetraScience of the foregoing individuals and their respective ranks. All requests for Maintenance and Support Services shall be transmitted to TetraScience through such representatives. TetraScience shall not be obligated to honor any request for support from any person or entity other than such representatives of Customer.
d. Customer must provide experienced IT professionals with training regarding the TetraScience System to collaborate with TetraScience on fixing Errors and implementing any Error Correction, enhancement, solution, workaround or other such fix.
e. Customer shall reimburse TetraScience at TetraScience’s then current time and material rates for all work of TetraScience resolving issues that are determined not to be Errors. TetraScience shall only be obligated to provide Maintenance and Support Services with respect to the TetraScience System. TetraScience is not responsible for the configuration, maintenance or correction of third-party software, hardware or communications facilities. TetraScience shall have no liability to any third party.