This CloudLIMS Customer Agreement (the “Agreement”) is between you and CloudLIMS.com (“CloudLIMS”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement. CloudLIMS may modify this Agreement from time to time, subject to the terms in Section 23 (Changes to this Agreement) below.
By clicking on the “I agree” (or similar button) that is presented to you at the time of your Order, or by using or accessing CloudLIMS products, you indicate your assent to be bound by this Agreement.
1 Scope of the Agreement
2 Types of CloudLIMS Products
This Agreement governs (a) CloudLIMS’s hosted or cloud-based solutions (currently designated as “Cloud” deployments) (“Hosted Services”), and (b) any related support or maintenance services provided by CloudLIMS. Software and Hosted Services, together with related Documentation is referred to as “Products”. The Products and their permitted use are further described in CloudLIMS’s standard documentation (“Documentation”). Section 5 (Software Terms) applies specifically to Software and Section 6 (Hosted Services Terms) applies to Hosted Services, but unless otherwise specified, other provisions of this Agreement apply to all Products.
3.1 Directly with CloudLIMS
CloudLIMS’s Product ordering (“Order”) will specify your authorized scope of use for the Products, which may include: (a) duration and number of Authorized Users (as defined below), (b) storage or capacity (for Hosted Services), (c) numbers of additional users (for Software), or (d) other restrictions or billable units (as applicable, the “Scope of Use”). The term “Order” also includes any applicable Product or Support and Maintenance renewal, or purchases you make to increase or upgrade your Scope of Use.
3.2 Reseller Orders
This Agreement applies whether you purchase our Products directly from CloudLIMS or through CloudLIMS “Experts” or other authorized resellers (each, a “Reseller”). If you purchase through a Reseller, your Scope of Use shall be as stated in the Order placed by Reseller for you, and Reseller is responsible for the accuracy of any such Order. Resellers are not authorized to make any promises or commitments on CloudLIMS’s behalf, and we are not bound by any obligations to you other than what we specify in this Agreement.
4 Authorized Users
Only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorized Users”) may access and use the Products. Authorized Users may be you or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. You may also permit your customers to have limited access to certain Products as Authorized Users, subject to the terms of our Customer Use Addendum. You may increase the number of Authorized Users permitted to access your instance of the Product by placing a new order or, in some cases, directly through the Product. In all cases, you must pay the applicable fee for the increased number of Authorized Users. You are responsible for compliance with this Agreement by all Authorized Users. All use of Products by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your Affiliates. “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
4.1 Usage Limits
CloudLIMS may prescribe usage limits based on the number of subscription/users purchased by you. You must make sure that your usage is within the usage limits prescribed by CloudLIMS in order to avail uninterrupted service. You understand that CloudLIMS may restrict an activity if you reach the usage limit corresponding to such activity.
5 Software Terms
5.1 Your License Rights
Subject to the terms and conditions of this Agreement, CloudLIMS grants you a non-exclusive, non-sublicenseable and non-transferable license to use the Software during the applicable Subscription Term in accordance with this Agreement, your applicable Scope of Use, and the Documentation. The subscription term of Software (“Subscription Term”) will be specified in your Order. Your Subscription Term will end upon any termination of this Agreement, even if no expiration date is specified in your Order. The Software requires a log-in credentials in order to operate, which will be delivered as described in Section 9.2 (Delivery). The licenses are named user accounts. Sharing of named accounts is a violation of our licensing policy.
5.2 Number of Instances
Unless otherwise specified in your Order, for Software that you purchase, you get one instance of the Software.
In any use of the Software, you must include the following attribution to CloudLIMS on all user interfaces in the following format: “Powered by CloudLIMS,” which must in every case include a hyperlink to https://www.cloudlims.com, and which must be in the same format as delivered in the Software.
5.4. Third Party Code
The Software includes code and libraries licensed to us by third parties including open source software.
6 Hosted Services Terms
6.1 Access to Hosted Services
Subject to the terms and conditions of this Agreement, CloudLIMS grants you a non-exclusive right to access and use the Hosted Services during the applicable Subscription Term (as defined below) in accordance with this Agreement, your applicable Scope of Use and the Documentation. If CloudLIMS offers client software (e.g., a desktop or mobile application) for any Hosted Service, you may use such software solely with the Hosted Service, subject to the terms and conditions of this Agreement. You acknowledge that our Hosted Services are on-line, subscription-based products and that we may make changes to the Hosted Services from time to time.
6.2 Subscription Terms and Renewals
Hosted Services are provided on a subscription basis for a set term specified in your Order (“Subscription Term”). Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription through your account. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
From time to time, we may change the price of any service or charge for use of services that are currently available free of charge. Any increase in charges will not apply until the expiry of your then current billing cycle. You will not be charged for using any service unless you have opted for a paid subscription plan. Please notify for any changes to your subscription, including cancellation or changes in plan, 30 days before the renewal date. Without such notification, your subscription shall be renewed automatically.
You must ensure that all Authorized Users keep their user IDs and passwords for the Hosted Services strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify CloudLIMS of any unauthorized use of which you become aware.
6.4 Inactive User Accounts Policy
We reserve the right to terminate unpaid user accounts that are inactive for a continuous period of 30 days. In the event of such termination, all data associated with such user account will be deleted. We will provide you prior notice of such termination and option to back-up your data. The data deletion policy may be implemented with respect to any or all of the Services. Each Service will be considered an independent and separate service for the purpose of calculating the period of inactivity. In other words, activity in one of the Services is not sufficient to keep your user account in another Service active. In case of accounts with more than one user, if at least one of the users is active, the account will not be considered inactive.
6.5 Your Data
“Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Hosted Services. You will retain all right, title and interest in and to Your Data in the form provided to CloudLIMS. Subject to the terms of this Agreement, you hereby grant to CloudLIMS a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Hosted Service to you and (b) for Hosted Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Hosted Service. CloudLIMS may also access your account or instance in order to respond to your support requests.
6.6 Protection of PHI
You agree to alert CloudLIMS in writing if you will be using the Services to store or process PHI. To the extent that You do use the Services to store or process PHI, then the terms of the CloudLIMS Business Associate Agreement will apply to any PHI stored or processed by You using the Services and the terms of the CloudLIMS Business Associate Agreement are incorporated herein by reference. Upon either Your or CloudLIMS’s request, both parties will execute a signable version of the CloudLIMS Business Associate Agreement.
CloudLIMS implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Hosted Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
6.8 Storage Limits
There may be storage limits associated with a particular Hosted Service. These limits are described in the services descriptions on our websites or in the Documentation for the particular Hosted Service. CloudLIMS reserves the right to charge for additional storage or overage fees. We may impose new, or may modify existing, storage limits for the Hosted Services at any time at our discretion, with or without notice to you.
6.9 Responsibility for Your Data
You must ensure that your use of Hosted Services and all Your Data is at all times compliant with our Acceptable Use Policy and all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all Your Data to CloudLIMS and to grant the rights granted to CloudLIMS in this Agreement and (ii) Your Data and its transfer to and use by CloudLIMS as authorized by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 6.7 (Security), CloudLIMS assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
6.9.2 Indemnity for Your Data
You will defend, indemnify and hold harmless CloudLIMS from and against any loss, cost, liability or damage, including attorneys’ fees, for which CloudLIMS becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Hosted Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of CloudLIMS at your expense.
6.10 Removals and Suspension
CloudLIMS has no obligation to monitor any content uploaded to the Hosted Services. Nonetheless, if we deem such action necessary based on your violation of this Agreement or in response to takedown requests that we receive following our guidelines for Reporting Copyright and Trademark Violations, we may (1) remove Your Data from the Hosted Services or (2) suspend your access to the Hosted Services. We will generally alert you when we take such action and give you a reasonable opportunity to cure your breach, but if we determine that your actions endanger the operation of the Hosted Service or other users, we may suspend your access immediately without notice. You will continue to be charged for the Hosted Service during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to any Hosted Services as described in this section.
6.11 Deletion at End of Subscription Term
We may remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term.
6.12 Service-Specific Terms
Some of our Hosted Services may be subject to additional terms specific to that service as set forth in our Service-Specific Terms.
7 Support and Maintenance
CloudLIMS will provide the support and maintenance services for the Products described in the CloudLIMS Support Policy (“Support and Maintenance”) during the period for which you have paid the applicable fee. Support and Maintenance is subject to the terms of the CloudLIMS Support Policy and will be provided at the support level and during the support term specified in your Order. The CloudLIMS Support Policy may be modified by CloudLIMS from time to time to reflect process improvements or changing practices. Support and upgrades for Software includes access to New Releases, if and when available. You may use any New Releases that we provide to you during a valid support term in the same way that you use Software, and New Releases are included in the definition of Software in that case. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that we make generally commercially available.
8 Training Services
We will provide complimentary training services in an Order in accordance with the descriptions and conditions for those services set forth in the Order and the accompanying service descriptions or datasheets (“Ancillary Services”). CloudLIMS shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services we provide (“Training Materials”). Any Training Materials provided to you may be used only in connection with the Products subject to the same use restrictions for the Products.
9 Returns and Financial Terms
9.1 Refund Policy
- CloudLIMS is committed to delivering an industry leading LIMS solution and best-in-class support services. If you are not completely satisfied with your purchase, for quality, services or performance reasons, please cancel your subscription within 45 days for a full refund (credit card processing fee or bank charges as applicable will be deducted).
- You may cancel your subscription anytime by emailing firstname.lastname@example.org within 45 days from the date of purchase. The date of purchase is the date the Purchase Order was placed or the order was placed online on the CloudLIMS.com website.
- You will receive an email from CloudLIMS, serving as a written confirmation that your subscription has been cancelled.
- Subscribers using CloudLIMS.com for the first-time are eligible for a refund. For example, existing subscribers, who have canceled and signed up again, or have opened a second account, are not eligible for a refund.
- Refunds will be made in the same manner as the product was purchased. If paid by credit card, refunds will be issued to the credit card provided at the time of purchase and in case of checks and wires, wire transfer shall be made to the corresponding account.
- Your product remains live for 7 days from the time the cancellation request is accepted and processed. You are advised to take a backup of your data in that period.
- We reserve the right to disable any product keys/sandbox accounts and/or serial numbers issued to you upon processing the refund.
- Only software purchased via www.cloudlims.com or with formal Purchase order followed by wire transfer /Cheque are eligible for a refund, within 45 days of your purchase. If the purchase was executed via an authorized distributor, we request you to contact the distributor for processing the refund.
We will deliver the login instructions (in the case of Hosted Services) to the email addresses specified in your Order. All deliveries under this Agreement are electronic.
You agree to pay all fees in accordance with each Order. You will pay all amounts in U.S. dollars. The payment terms are Net 30. Other than as expressly set forth in Section 9.1 (Refund Policy) and Section 19 (IP Indemnification by CloudLIMS), all amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current Subscription Term or any Product upgrades or feature enhancements. If you add Authorized Users during your Subscription Term, we will charge you for the increased number of Authorized Users pursuant to the then-currently applicable rates in your next billing cycle. You agree that we may bill your credit card for renewals, additional users, and unpaid fees, as applicable. If you purchase any Products through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that we may terminate your rights to use Products if we do not receive our corresponding payment from the Reseller.
Your payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by CloudLIMS, you must pay to CloudLIMS the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to CloudLIMS any such exemption information, and CloudLIMS will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
10 No-Charge Products
We may offer certain Products to you at no charge, including free accounts, trial use, and access to Beta Versions as defined below (“No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge Products for competitive analysis or similar purposes. We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta products we make available (“Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 10 (No-Charge Products). All information regarding the characteristics, features or performance of Beta Versions constitutes CloudLIMS’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.
Except as otherwise expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service you provide to a third party, (d) interfere with any log-in mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.
12 Your Development of Add-ons
12.1 License to Developer Guides
From time to time, CloudLIMS may publish SDK’s or API’s and associated guidelines (“Developer Guides”) to allow you to develop plugins, extensions, add-ons or other software products or services that interoperate or are integrated with the Products (“Add-ons”). You may distribute your Add-ons to third parties, but only for those Products permitted by CloudLIMS, and only in accordance with the Developer Guides.
12.2 Conditions to Development of Add-ons
Notwithstanding anything in this Agreement to the contrary, CloudLIMS has no support, warranty, indemnification or other obligation or liability with respect to your Add-ons or their combination, interaction or use with the Products. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to your Add-ons (including but not limited to any representations or warranties you make about your Add-ons) or your breach of this Section.
13 License Certifications and Audits
At our request, you agree to provide a signed certification that you are using all Products pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Products. We will provide you with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to CloudLIMS at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third party licensors or assign the audit rights specified in this Section to such licensors.
14 Ownership and Feedback
Products are made available on an access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. CloudLIMS and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for CloudLIMS, including without limitation as they may incorporate Feedback (“CloudLIMS Technology”). From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to CloudLIMS, including sharing Your Modifications or in the course of receiving Support and Maintenance (“Feedback”). CloudLIMS may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits CloudLIMS’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure. Any CloudLIMS Technology and any performance information relating to the Products shall be deemed Confidential Information of CloudLIMS without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.
16 Term and Termination
This Agreement is in effect for as long as you have a valid Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to CloudLIMS, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software, Hosted Services subscriptions, or Support and Maintenance. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including CloudLIMS Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of this Agreement: Sections 6.9.2 (Indemnity for Your Data), 9.3 (Payment), 9.4 (Taxes), 10 (No-Charge Products) (disclaimers and use restrictions only), 11 (Restrictions), 12.2 (Conditions to Development of Add-ons), 13 (License Certifications and Audits), 14 (Ownership and Feedback), 15 (Confidentiality), 16 (Term and Termination), 17.2 (Warranty Disclaimer), 18 (Limitation of Liability), 22 (Dispute Resolution), and 24 (General Provisions).
17 Warranty and Disclaimer
17.1 Due Authority
Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
17.2 WARRANTY DISCLAIMER
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN AS-IS-AND-AS-AVAILABLE BASIS. CLOUDLIMS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLOUDLIMS MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE SERVICES SHALL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM CLOUDLIMS, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
18 Limitation of Liability
YOU AGREE THAT CLOUDLIMS SHALL, IN NO EVENT, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER LOSS OR DAMAGE WHATSOEVER OR FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, OR OTHER LOSS ARISING OUT OF OR CAUSED BY YOUR USE OF OR INABILITY TO USE THE SERVICE, EVEN IF CLOUDLIMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL CLOUDLIMS’S ENTIRE LIABILITY TO YOU IN RESPECT OF ANY SERVICE, WHETHER DIRECT OR INDIRECT, EXCEED THE FEES PAID BY YOU TOWARDS SUCH SERVICE.
19 IP Indemnification by CloudLIMS
We will defend you against any claim brought against you by a third party alleging that a Product, when used as authorized under this Agreement, infringes a United States , and we will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by CloudLIMS (including reasonable attorneys’ fees) arising out of a Claim, provided that we have received from you: (a) prompt written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the claim, including providing us a copy of the claim and all relevant evidence in your possession, custody or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim. If your use of a Product is (or in our opinion is likely to be) enjoined, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure a subscription for your continued use of the Product in accordance with this Agreement; (ii) substitute a substantially functionally similar Product; or (iii) terminate your right to continue using the Product , in the case of a Hosted Service, any prepaid amounts for the terminated portion of the Subscription Term. CloudLIMS’s indemnification obligations above do not apply: (1) if the total aggregate fees received by CloudLIMS with respect to your subscription to Hosted Services in the 12 month period immediately preceding the claim is less than US$50,000; (2) if the Product is modified by any party other than CloudLIMS, but solely to the extent the alleged infringement is caused by such modification; (3) if the Product is used in combination with any non-CloudLIMS product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Products; (5) to any Claim arising as a result of (y) Your Data (or circumstances covered by your indemnification obligations in Section 6.9.2 (Indemnity for Your Data)) or (z) any third-party deliverables or components contained with the Products; (6) to any unsupported release of the Software; or (7) if you settle or make any admissions with respect to a claim without CloudLIMS’s prior written consent. THIS SECTION 19 (IP INDEMNIFICATION BY CLOUDLIMS) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY CLOUDLIMS UNDER THIS AGREEMENT.
20 Publicity Rights
We may identify you as an CloudLIMS customer in our promotional materials. You may request that we stop doing so by submitting an email to email@example.com at any time. Please note that it may take us up to 30 days to process your request.
21 Improving Our Products
22 Dispute Resolution
22.1 Dispute Resolution; Arbitration
In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in one of the following cities as mutually agreed between the parties: Wilmington, DE (US). If the parties are unable to agree to one of these cities, then the arbitration shall proceed in San Francisco, CA. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
22.2 Governing Law; Jurisdiction
This Agreement will be governed by and construed in accordance with the applicable laws of the State of Delaware, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 22.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Wilmington, Delaware, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Wilmington, Delaware, US, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, CloudLIMS may bring a claim for equitable relief in any court with proper jurisdiction.
22.3 Injunctive Relief; Enforcement
Notwithstanding the provisions of Section 22.1 (Dispute Resolution; Arbitration), nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
22.4 Exclusion of UN Convention and UCITA
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.
23 Changes to this Agreement
We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog, through your CloudLIMS account, or in the Product itself). If we modify the Agreement during your Subscription Term, the modified version will be effective upon your next renewal of a Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including canceling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for you to continue using the No-Charge Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
24 General Provisions
Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to CloudLIMS.com, LLC 831 N Tatnall Street, Suite M #118, Wilmington DE 19801, Attn: General Counsel. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. The Products are commercial computer software. If you are an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited. This Agreement is the entire agreement between you and CloudLIMS relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.