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Software as a Service (SaaS) Agreement

Software as a Service (SaaS) Agreement

This Software as a Service Agreement (“Agreement”) is by and between the Molecular Devices entity identified on the applicable Order Form (“MolDev”) and the Customer (as defined below).

DEFINITIONS AND INTERPRETATION

    1. Definitions.
    2. Affiliate: Any entity that controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, shall mean the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting stock, by contract or otherwise.
    3. Customer: the entity purchasing the Services from MolDev as identified in the applicable Order Form.
    4. Customer Data: All electronic data and information submitted, entered, uploaded or retrieved in any form by or for Customer to the Services. For the avoidance of doubt, Customer Data does not include Usage Data.
    5. Customer Support: standard technical support, for query and problem resolution, in relation to the Services.
    6. Documentation: technical literature, specifications and user guide for the Services, as updated from time to time, accessible or supplied with the Services, in printed and/or electronic format, provided that updates to the Documentation will not result in a material reduction in the level of performance or availability of the Services for the duration of the applicable Subscription Term.
    7. Fees: The fees and charges as set forth in the applicable Order Form and this Agreement that are payable by Customer to MolDev under this Agreement.
    8. Intellectual Property: Patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in designs, rights in computer software, database rights, trade secrets, and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
    9. Order Form: A MolDev order form, proposal, or other ordering document in the name of and executed by Customer and accepted by MolDev that specifies the Services to be provided by MolDev under this Agreement, or a purchase order issued by Customer and accepted by MolDev for the Services identified in MolDev’s corresponding quotation, which Order Form is incorporated herein by reference.
    10. Party: In the singular, either Customer or MolDev as the context may dictate, or in the plural (“Parties”), both Customer and MolDev.
    11. Personal Data: Customer Data relating to an identified or identifiable natural person.
    12. Services: the software-as-a-service (SaaS) services that are ordered by Customer as set forth in an Order Form and made available online by MolDev to Customer, including Updates, associated modules, plug-ins, and offline components, as the context requires.
    13. Subscription Term has the meaning set forth in Sec. 12.2 (Term of User Subscriptions) of this Agreement.
    14. Updates: Versions of the Services or components thereof, released by MolDev to its customers from time to time under MolDev’s support/update/development plans, which may remedy or provide a workaround to instances of non-conformance of the Services to the Documentation or provide general improvement or enhancement to the Services.
    15. Usage Data: Information generated by the Services pertaining to the Customer’s use of the Services, used to monitor and continually improve the Services, which does not include within it any element of Customer Data.
    16. User: A named person who is authorized by Customer to use the Services. Each User accessing the Services will be identified by a unique username and password.
    17. User Subscription has the meaning set forth in Sec. 2.1 (User Subscriptions) of this Agreement.
    18. This Agreement is comprised of:
    19. (a) the terms and conditions of this Software as a Service Agreement,
    20. (b) the Order Form(s), and
    21. (c) the documents expressly incorporated into the above or by written agreement between the parties, attached as exhibits, schedules or appendices to this Agreement, or as expressly referenced within this Agreement.
    22. In the case of conflict or ambiguity between any provision contained in the body of this Software as a Service Agreement and any provision contained in the Order Form, exhibits, except for contractual clauses relating to the transfer of Personal Data in Exhibit C, schedules or appendices, the provision in the body of this Master Subscription Services Agreement shall take precedence unless such other document identifies the provision of the Software as a Service Agreement to be modified, specifically describes the modification and is executed by authorized representatives of both Parties. The foregoing notwithstanding, any pre-printed terms in any invoices or Customer’s purchase orders that are different from or in addition to those in this Agreement are hereby expressly rejected and void and shall not apply to any order for or provisioning of Services.

PROVISION OF SERVICES

    1. User Subscriptions. Unless otherwise specified in the applicable Order Form, Customer purchases Services as a subscription to use the Services (“User Subscription”) for a defined Subscription Term. Fees for User Subscriptions are due annually in advance before the Subscription Term begins. Additional User Subscriptions for the Services may be added during a Subscription Term either at the then current MolDev list prices or as otherwise agreed to by the Parties in an Order Form. User Subscriptions added during a Subscription Term will be billable upon receipt of an Order Form for such additional User Subscriptions and will terminate on the same date as the termination date of the current Subscription Term.
    2. Provision of Services. Pursuant to the terms and conditions of this Agreement, MolDev will make the Services available to Customer and its Users by granting access to a cloud-based version of the software hosted on behalf of MolDev for the duration of the Subscription Term. The software shall reside on server(s) operated on behalf of MolDev. Users shall have access to the software solely via the Internet, and Customer shall not receive any software code. MolDev may apply Updates from time to time in its sole discretion, and in accordance with this Agreement, as part of its on-going intent to improve the Services and Customer’s use of the Services.
    3. Personal Data. To the extent that Customer Data comprises Personal Data, the terms of the Data Protection Addendum attached hereto as Exhibit C, which is incorporated into this Agreement, shall apply.
    4. Subcontractors. Customer acknowledges that MolDev uses the services of third-party subcontractors, including but not limited to, third-party datacenter, for the provisioning of the Services and Customer Support under this Agreement. MolDev shall be responsible for any act or omission by its third-party subcontractors.

INFORMATION AND SYSTEM SECURITY

    1. MolDev’s obligations for information and system security measures in relation to the Services are set forth in MolDev’s Product Security Features Description attached to Customer’s first Order Form which is incorporated into this Agreement by reference. A copy of the Product Security Features Description is also available to Customer upon request.
    2. MOLDEV DISCLAIMS ANY LIABILITY FOR UNAUTHORIZED ACCESS, USE OR RELEASE OF ANY CUSTOMER DATA, UNLESS SUCH ACCESS, USE OR RELEASE RESULTS FROM MOLDEV’S FAILURE TO MEET ITS SECURITY OBLIGATIONS SET FORTH IN THIS SECTION 3.
    3. MolDev will back up Customer Data as provided in the Product Security Features Description. Without prejudice to the above, Customer is also responsible for retaining backup copies of all Customer Data, and for implementing its own disaster-recovery plan. Customer will use reasonable security precautions, in accordance with its industry standards, in light of its use of the Services.

CUSTOMER RESPONSIBILITIES

    1. Usage Limits.
      1. Services may not be accessed by more Users than the number of User Subscriptions specified for the Services in the applicable Order Form. Each User accessing the Services will be identified by a unique username and password. User Subscriptions are strictly for the individual designated Users only and may not be shared. User Subscriptions may, however, be reassigned to a new individual to replace an existing User who no longer requires use of, or access to, the Services. Customer will: (a) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services; (b) notify MolDev promptly if it becomes aware of any such unauthorized access or use; and (c) use the Services solely for its business as contemplated by this Agreement.
      2. Unless otherwise agreed in an executed Order Form , (a) MolDev will allocate the specified amount of usage time, data transfer and data storage as set forth in the applicable Order Form to Customer’s use of the Services and (b) MolDev reserves the right, with prior written notice to Customer, to charge additional fees for Customer’s use that is in excess of such allocated usage limits at its then-current list prices, provided that MolDev also notifies the Customer in writing if the Customer approaches the allocated usage limits prior to the end of the applicable Subscription Term.
    2. Customer Responsibilities Regarding Customer Data. Customer shall have sole responsibility for the accuracy, quality, legality, reliability and appropriateness of all Customer Data, and the means by which Customer Data was acquired. Except for the pseudonymized patient identification number, Customer shall not provide any “special categories of personal data” or health care provider data to MolDev and shall not use Services to process such data. For the purposes of this Section, “special categories of personal data” shall have the meaning as set forth in the EU General Data Protection Regulation, such data is also known as “sensitive data” under other laws and regulations regarding the processing of Personal Data.
    3. Terms of Use. Customer agrees to and shall comply with the Terms of Use set forth in Exhibit A attached to and incorporated into this Agreement.
    4. Suspension. If any User: (a) violates this Agreement; (b) is using the Service in a manner that MolDev reasonably believes may cause a security risk, a disruption to others’ use of the Services, or liability for MolDev, MolDev may, upon written notice to Customer specifying the non-compliance in reasonable detail: (i) suspend the account of such User; and (ii) require the Customer to remove the non-compliant Customer Data from the Services immediately . If the Customer fails to do so, MolDev may, at its own option, delete the non-compliant Customer Data from the Services or terminate access to such Customer Data.

CUSTOMER SUPPORT

  1. Standard Customer Support for query and issue resolution in relation to the Services will be provided to Customer in accordance with Customer Support Description attached hereto as Exhibit B and incorporated into this Agreement.

FEES AND PAYMENT

    1. Fees. Customer shall pay all Fees specified in the applicable Order Form. Customer acknowledges that: (a) Fees are based on Services purchased and not actual usage; (b) payment obligations are non-cancellable, and any Fees paid are non-refundable, unless otherwise specified in this Agreement; and (c) the number of User Subscriptions purchased in the applicable Order Form cannot be decreased during the Subscription Term unless otherwise agreed in an Order Form executed by both Parties.
    2. Invoicing and Payment. MolDev shall issue invoices in accordance with this Agreement and the applicable Order Form. Customer is responsible for providing MolDev with complete and accurate invoicing and contact information and promptly notifying MolDev of any changes to such information. All non-disputed invoices issued by MolDev to Customer are due net thirty (30) days from the invoice date. All levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes (collectively, “Taxes”) due on Fees will be applied to a Customer invoice as required by law.
    3. Overdue Amounts. If any undisputed invoiced amount is not received by MolDev by the due date, then without limiting its rights or remedies, MolDev may: (a) invoice Customer for the late payment interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; and (b) upon written notice, suspend Customer’s access to the Services until payment is received in full.

PROPRIETARY RIGHTS

    1. MolDev Rights in the Services. Subject to the limited rights expressly granted hereunder, MolDev and its licensors reserve all rights, title and interest in and to the Services and Documentation, including all related Intellectual Property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
    2. MolDev License. Subject to the terms and conditions of this Agreement, MolDev hereby grants to Customer and its Users a non-exclusive, fee-bearing, non-sublicensable, non-transferable (except as set forth in Section 14.5, Assignment) license to use the Services and Documentation for Customer’s internal business operations during the specified Subscription Term. Subject to the limited license granted in this Section 7.2, Customer acquires no right, title or interest from MolDev under this Agreement in or to the Services.
    3. Limited License to Use Customer Data. Customer hereby grants to MolDev a limited, non-exclusive and non-transferable (except as provided in Section 14.5, Assignment) license to access, use, copy, reproduce, process, transmit and display Customer Data submitted to the Services by Customer Users, or provided by Customer to MolDev, for the limited purpose of: (a) providing the Services and Customer Support and displaying the Customer Data to Users for the duration of this Agreement; and (b) generating Usage Data.
    4. Right to Ideas. MolDev shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services, Documentation and Customer Support, any suggestions, ideas, enhancement requests, recommendations or other feedback (collectively, the “Feedback”) provided by Customer or its Users relating to the operation and use of the Services.

CONFIDENTIALITY

    1. Confidential Information. For the purposes of this Agreement, “Confidential Information” means all information disclosed by a Party or its Affiliates (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without restriction and without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.
    2. Protection of Confidentiality. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information, using at least reasonable care. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, each Party shall have the right to disclose the other Party’s Confidential Information to such of its Affiliates, directors, officers, employees, contractors, accountants, financial advisors and legal counsel having a need to know the Confidential Information (each a “Representative”) for the purpose of this Agreement, provided that, prior to any such disclosure to a Representative, the Representative has agreed in writing to be bound by obligations of confidentiality and non-use on terms at least as restrictive as the terms contained herein. In addition, each Party shall be responsible for any breach of this Agreement by its Representatives.
    3. Legally Required Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, regulation, regulatory authority, or order of a governmental agency, or court of competent jurisdiction to do so, and as required for the purposes of regulatory filings, prosecuting or defending litigation, or complying with applicable law (including regulations promulgated by securities exchanges), provided the Receiving Party gives the Disclosing Party prior written notice of such disclosure (to the extent legally permitted).
    4. Injunctive Relief. Each party agrees that any actual or threatened disclosure or misappropriation of Confidential Information would constitute immediate, irreparable harm to the other party for which monetary damages may be an inadequate remedy. Therefore, in addition to any other rights and remedies that may be available to the parties at law or in equity, each party may seek injunctive relief for any such actual or threatened disclosure without the posting of a bond.
    5. Survival. The obligations set forth in this Section 8 shall survive until five (5) years from the termination or expiration of this Agreement.

REPRESENTATIONS/WARRANTIES AND DISCLAIMERS

    1. Mutual Warranties. Each Party represents and warrants that: (a) it has validly entered into this Agreement and has the legal power to do so, and (b) it will comply with all applicable international, national, state, regional and local laws and regulations applicable to such Party’s activities hereunder, including the laws, rules, and regulations of the United States which restrict the export and re-export of commodities and technical data of United States origin.
    2. MolDev Warranties. MolDev warrants that: (a) it will provide the Services, and Customer Support in a professional manner consistent with industry standards; and (b) the Services shall perform in accordance with the Documentation during the applicable Subscription Term.
    3. Customer Warranties. Customer represents and warrants on behalf of itself and its Users that it: (a) has all necessary rights to use the Customer Data and to permit MolDev to use Customer Data in connection with the Services without violating any fiduciary duty, duty of confidentiality, contractual obligation or applicable laws; (b) will not use, or permit the use of, the Services for illegal, fraudulent, or unethical purposes or otherwise in a manner that is likely to give rise to civil or criminal liability of MolDev; and (c) will not interfere with or impede the ability of others to use the Services. Customer shall verify that it and its Users comply with the provisions of the Agreement applicable to use of the Services and shall be liable for any and all use of and access to the Services by any Users.
    4. Mutual Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTY, REPRESENTATION OR OTHER COMMITMENT OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES, REPRESENTATIONS OR OTHER COMMITMENTS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OF SATISFACTORY QUALITY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

INDEMNIFICATION

    1. Indemnification by MolDev. If a third party makes a claim against Customer, its officers, directors or employees alleging that Customer’s use of the Services for its intended normal purposes as contemplated hereunder infringes the Intellectual Property rights of a third party, MolDev shall: (a) pay all reasonable costs to defend Customer; and (b) pay any damages assessed against Customer in a final judgement by a court of competent jurisdiction or any settlement that MolDev has agreed upon with such third party, subject to Section 10.4, provided; however, that the indemnification obligations set forth in this Section 10.1 shall not apply (i) with respect to any claim of infringement based upon any modifications to the Services made by Customer or a third party not authorized by MolDev, or (ii) to the extent the claims arise from Customer’s negligence or wilful misconduct.
    2. Indemnification by Customer. To the extent permitted by law, if a third party makes a claim against MolDev, its officers, directors or employees alleging that the Customer Data or Customer’s use of the Services, except as contemplated hereunder, infringes the Intellectual Property rights of a third party, Customer shall: (a) pay all reasonable costs to defend MolDev; and (b) pay any damages assessed against MolDev in a final judgment by a court of competent jurisdiction or any settlement that Customer has agreed upon with such third party, subject to Section 10.4; provided, however, that the indemnification obligations set forth in this Section 10.2 shall not apply to the extent the claims arise from MolDev’s’s negligence or wilful misconduct.
    3. Remedy. MolDev may, at its option and expense, attempt to resolve any Claim described in Section 10.1 by: (a) modifying the Services to avoid the alleged infringement, without materially altering the Services; (b) obtaining a license to permit Customer’s use of the Services as contemplated by this Agreement; or (c) terminate the license grant set forth in this Agreement with respect to the Services and entitle Customer to receive a refund for any amounts paid in advance that are attributable to the unused portion of the Subscription Term.
    4. SECTIONS 10.1 and 10.3 STATE CUSTOMER’S SOLE REMEDY AND MOLDEV’SS SOLE OBLIGATION WITH RESPECT TO INFRINGEMENT CLAIMS.
    5. Notice and Control. The indemnification obligations set forth in Sec. 10.1 and 10.2 are contingent upon the indemnified party: (a) promptly giving written notice of the claim to the indemnifying party, (b) giving the indemnifying party sole control over the defence and settlement of the claim and (c) providing to the indemnifying party, on its request and at the indemnifying party’s cost, all reasonable assistance. The indemnifying party shall not enter into any settlement of any claim under Section 10 that imposes any obligation on the indemnified party or admits that the indemnified party has any liability for such claim without the indemnified party’s prior written consent.

LIMITATION OF LIABILITY

    1. Limitation of Liability. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, OR CLAIMS ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD, NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY THE CUSTOMER IN FEES IN THE 12 MONTHS PRECEDING THE INCIDENT THAT GAVE RISE TO SUCH CLAIM.
    2. Exclusions. EXCEPT FOR CLAIMS ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE, WILFUL MISCONDUCT, OR FRAUD, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

TERM AND TERMINATION

    1. Term of Agreement. This Agreement commences on the date the Customer’s first Order Form is accepted by MolDev and continues until all User Subscriptions granted in accordance with this Agreement have expired or have been terminated. Except as otherwise provided herein, neither Party may terminate this Agreement or any User Subscriptions without cause.
    2. Term of User Subscriptions. User Subscriptions start on the date specified in the applicable Order Form and continue for the subscription term specified therein (“Subscription Term”). If no commencement date is specified in the Order Form the User Subscription commencement date shall be five (5) business days from the date of acceptance of the applicable Order Form by MolDev, or, if Customer purchases Services with a MolDev instrument, five (5) business days after: (a) the date of installation of such instrument, if installed by MolDev; or (b) delivery of the instrument to Customer. Unless otherwise specified in the applicable Order Form, at the end of the initial Subscription Term, User Subscriptions shall automatically renew for additional twelve (12) month periods at MolDev’s then current list price, unless either Party gives written notice of non-renewal at least sixty (60) days prior to the end of the then current Subscription Term. If the per unit User Subscription pricing for renewal is not specified on the applicable Order Form, then the per unit User Subscription pricing will be MolDev’s then current list price unless otherwise agreed to by the Parties in writing.
    3. Termination for Cause. A Party may terminate this Agreement for cause: (a) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
    4. Refund or Payment upon Termination. If Customer terminates this Agreement for cause in accordance with Section 12.3 above, MolDev will refund Customer any prepaid Fees covering the remainder of the applicable Subscription Term after the date of termination. If MolDev terminates this Agreement for cause in accordance with Section 12.3, Customer will pay all Fees otherwise payable to MolDev through the end of the Subscription Term.
    5. Return of Customer Data upon Termination. Upon the effective date of any expiration or termination of this Agreement by either Party: (a) all rights and licenses granted to either Party will terminate; and (b) except as otherwise stated herein, each Party will immediately, in accordance with the other Party’s instructions, either destroy and certify destruction or return to the other Party all Confidential Information of the other Party (and in the case of MolDev also Customer Data), in its possession, custody or control in whichever form held, unless such Confidential Information or Customer Data is required to be held by a Party for regulatory, audit or legal reasons. Upon Customer’s written request, within thirty (30) days of expiration or termination of the Agreement, MolDev will make available to Customer for download a file of Customer Data in a commonly readable format.

GENERAL

    1. Waiver. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy.
    2. Entire agreement. This Agreement, the Order Form(s) and the documents annexed as appendices to this Agreement or otherwise referred to herein, contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
    3. Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the Parties’ authorised representatives.
    4. Severance. If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
    5. Assignment. This Agreement is not assignable by either Party, whether by operation of law or otherwise, without the prior written consent of the other Party (which shall not be unreasonably withheld or delayed); provided, however, that either Party may assign this Agreement as part of a transfer of all or substantially all of the assets of the transferring Party to any third-party (including by operation of a merger, acquisition, or other combination), by providing written notice of such assignment to the other Party. Any purported assignment in violation of this provision shall be void and of no effect.
    6. Third-party rights. The Parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement.
    7. No partnership or agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
    8. Force majeure. Each Party shall be excused performance of its obligations under or pursuant to this Agreement if and to the extent that its performance is delayed, hindered or prevented by any circumstances beyond its reasonable control including (but not limited to) acts of God or the public enemy, war, riots, fire, explosion, terrorist acts, natural disasters, floods, government action, telecommunications failures, Internet service provider or hosting facility failure, and denial of service attacks, strikes and seriously adverse weather conditions. Either Party may terminate this Agreement upon written notice to the other Party if the force majeure event continues for more than thirty (60) days.
    9. Notices. All Notices shall be in writing and sent to the other Party marked for the attention of the person at the address set forth below or as otherwise notified in writing from time to time. Any notice or other document correctly addressed shall be deemed delivered in three business days following the date of dispatch by first-class mail (in the U.S.), on the date of confirmed delivery by a nationally recognized courier service, with all postage or delivery charges prepaid (outside of the U.S.) or on the date of delivery as confirmed by the signature of the recipient for special or signed for delivery or delivery by hand. Notices to Customer shall be delivered to the attention of the Customer’s representative at the address indicated on the applicable Order Form. Notices to MolDev shall be delivered to the attention of MolDev’s VP of Sales at the address indicated on the applicable Order Form with a copy to the Legal Department at Molecular Devices, 3860 N. First Street, San Jose, CA 95134.
    10. Governing law and jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by the laws of the country and state where MolDev is located, without reference to its conflicts of law principles.
    11. Survival. The following provisions of this Agreement and any other provisions that by their nature are intended to survive termination of this Agreement, shall survive any termination or expiration of this Agreement: Sections 1, 7, 8, 9, 10, 11, 12 and 13.

Exhibit A

Terms of Use

Use of the Services. In these Terms of Use, “you” means Customer.

If you have a valid verification code received from your company or login details received from Core Life Analytics B.V. and/or its affiliates (“Core Life Analytics”) or its authorized reseller Molecular Devices, provided that you comply with these Terms of Use and the Agreement, Molecular Devices grants you a personal, non-exclusive, non-transferable, limited right to enter and use the Services during the applicable Subscription Term.

Unless otherwise specified, the Services are for research use only which expressly excludes any use for medical or diagnostic purposes. You will not use the Services for any purpose that is unlawful or prohibited by the Terms of Use. You may not use the Services in any manner that could damage, disable, overburden, or impair any technology used in providing the Services (such as its servers, network(s) or other related technology to the Services).

You may not attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to any of the Services, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available to you through the Services.

By way of example, and not as a limitation, you agree that when using the Services, you will not:

a. Copy, modify, distribute, sell, or lease any part of the Services.

b. Reverse engineer or attempt to extract any of our source code unless you have our written permission or applicable law lets you do so.

c. Upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same.

d. Use any material or information, including images or photographs, which are made available through the Services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party.

e. Upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another.

f. Falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.

g. Restrict or inhibit any other user from using the Services.

h. Violate any applicable laws or regulations.

MolDev may deny you access to the Services at any time if you breach any obligation arising from these Terms of Use.

Member Account, Password, and Security

If any of the Services requires you to open an account, you must complete the registration process by providing your current, complete and accurate information as prompted by the applicable registration form. You will also choose a password and a username. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify MolDev immediately of any unauthorized use of your account or any other actual or suspected breach of security that you become aware of. You may not use anyone else’s account at any time.

Materials provided to the Service

MolDev and its contractors involved in providing the Services do not claim ownership of the materials you provide to the Services. By uploading, inputting, providing or submitting your materials you represent and warrant that you own or otherwise control all of the rights to your materials as described in these Terms of Use including, without limitation, all the rights necessary for you to provide, upload, input or submit the materials.

Intellectual property

All rights, title and interest in and to the Services including patents, copyrights, trademarks, trade names, service marks, designs, media, trade secrets and other intellectual property rights, and any goodwill associated therewith, are owned by, or licensed to Core Life Analytics.

Exhibit B

Customer Support Description

  1. Problem Resolution. Customer will promptly report to MolDev any problems arising in the Services or Documentation and will provide assistance or information as may reasonably be required by MolDev in relation to the diagnosis of such problems. When a problem is an instance of non-conformance of the Services to the Documentation it will be rated with a priority level in accordance with the MolDev standard operating procedures for customer support and responded to in accordance with the timescales and with the resources allocated for the assigned priority level.
  2. Services Updates. MolDev may, from time to time, during the Subscription Term, provide Updates to the Services, and make them available to Customer. Where possible, MolDev shall inform Customer of any Update at least 24 hours prior to when an Update is to be applied to the Services.
  3. Customer Support Contacts and Hours. MolDev will respond to Customer’s requests related to reported problems via telephone or email between the hours of 8:00 a.m. and 5:00 p.m. (local time of the MolDev location set forth on the applicable Order Form) Monday through Friday, excluding holidays. A list of standard holidays will be provided to Customer upon request. Customer may contact MolDev’s Customer Support team by phone or email designated by MolDev which shall be provided to Customer upon Services purchase or activation.
  4. Preventive Maintenance, Scheduled Downtime and Service Availability. MolDev will deliver on a regular basis new patches, bug fixes and updates for the Services (Preventive Maintenance). MolDev will inform the Customers about the regular Preventive Maintenance hours if MolDev is of the opinion that it may interrupt the use of the Services. Scheduled downtime will be scheduled to occur on weekends and holidays whenever possible. The total amount of scheduled downtime will not exceed twenty-four (24) hours during any year and otherwise availability of the Services shall be as set forth in the Product Security Features Description. No individual period of scheduled downtime shall exceed four (4) hours. MolDev will use commercially reasonable efforts to provide Customer with immediate e-mail notification to the point of contact set forth in the electronic record of User registration for the Services as soon as it becomes aware of any actual or potential unscheduled downtime of the Services that is expected to last more than two (2) hours, as well as continual periodic updates during the unscheduled downtime regarding MolDev’s progress in remedying the unavailability and the estimated time that the Services will next be available.
  5. Exclusions. MolDev shall have no obligation to provide support or remedy Services performance issues if the issue arises from: (a) factors outside MolDev’ direct and reasonable control, including any force majeure event; (c) Customer’s failure to maintain the necessary environmental conditions for use of the Services as provided in the Documentation; (d) Customer’s use of the Services in combination with any equipment or product not provided by MolDev or not designated by MolDev in writing for use with the Services, or any fault in any such non-MolDev equipment or product; (e) any breach of the Customer's obligations under this Agreement howsoever arising; or (f) User error.

Exhibit C

Data Protection Addendum (DPA)

  1. Personal Data. If the Customer submits any Customer Data that comprises Personal Data to the Services, Customer agrees that it acts as Data Controller under applicable Data Protection Laws and Regulations and MolDev and/or its Affiliates act as individual Data Processors on behalf of Customer.
  2. Data Protection. Each party shall comply with Data Protection Laws and Regulations in connection with its obligations under this Data Protection Addendum (DPA).
  3. Description of processing. The processing of Personal Data shall be for the duration of the Agreement, for the purpose of providing the Services, and include categories of personal data consisting of basic contact information of Customer’s representatives such as first name, last name and email address.
  4. Processing Terms. When processing personal data on behalf of Customer, MolDev shall:
  5. 4.01 only process personal data on Customer’s written instructions, unless required otherwise by applicable Data Protection Laws and Regulations;
  6. 4.02 ensure that all MolDev personnel, who have access to personal data, are subject to suitable confidentiality obligations;
  7. 4.03 implement and maintain reasonable technical and organizational measures designed to prevent personal data breach, and if it becomes aware of personal data breach MolDev shall notify Customer without undue delay;
  8. 4.04 be generally authorized to use subprocessors, provided that MolDev shall remain fully liable for any of its subprocessors, and, in addition, shall use reasonable endeavors to notify Customer of any changes to its subprocessors, and take into account any reasonable objections of Customer in relation to such changes. Upon Customer’s request, MolDev shall provide Customer with the list of subcontractors authorized to access Personal Data in connection with the Agreement. The parties acknowledge that MolDev engages subcontractors qualified to support offerings that are made generally available to MolDev customers, including the Services, and that selection of subcontractors is not a customizable part of MolDev’s offerings.
  9. 4.05 taking into account the nature of the processing, at Customer’s cost and expense, assist Customer by appropriate technical and organizational measures, insofar as this is possible, provide such assistance as Customer may reasonably request to meet its obligations under Data Protection Laws and Regulations in responding to requests from data subjects exercising their rights under Data Protection Laws and Regulations;
  10. 4.06 taking into account the nature of the processing and information available to MolDev, at Customer’s cost and expense, provide reasonable assistance to Customer in meeting its obligations under Data Protection Laws and Regulations relating to security, personal data breach notification, data protection impact assessments and prior consultation with supervisory authorities;
  11. 4.07 at the choice of Customer, delete or return all Personal Data on Customer’s request or the termination of the Agreement unless required otherwise by applicable Data Protection Laws and Regulations; and
  12. 4.08 upon request and at Customer’s cost and expense, make available to Customer, for inspection on MolDev’s premises only, the information necessary to demonstrate compliance with the obligations set out in this DPA and allow for and contribute to audits conducted by Customer or another auditor mandated by Customer and approved by MolDev, provided that Customer gives MolDev at least thirty (30) days’ prior written notice of its intention to carry out an audit. This notice shall include a detailed work plan for the audit. Any third party involved in the audit must agree to MolDev’s confidentiality undertakings. All reports, materials or other information produced by MolDev or a subprocessor during the course of the audit or otherwise resulting from the audit, will be the Confidential Information of MolDev and subject to the provisions of the Agreement.

International Transfers.

    1. MolDev shall be entitled to transfer Personal Data from one country to another country in connection with providing the Services provided there is a lawful basis to do so. If requested by either Party, the Parties shall do all things reasonably necessary to give effect to such transfer, including updating the DPA or putting in place another data transfer mechanism appropriate to comply with Data Protection Laws and Regulations.
    2. Any transfer of Personal Data subject to the General Data Protection Regulation of the European Union to a jurisdiction that is not within the European Economic Area will be governed by the terms of the Standard Contractual Clauses for processors approved by the European Commission which are incorporated herein by reference.
    3. Any transfer of Personal Data subject to the United Kingdom GDPR to another jurisdiction will be governed by the applicable contractual clauses most recently approved by the UK privacy regulator for transfer of Personal Data out of the UK, unless another legal mechanism for the transfer applies.
    4. Any other international transfer of Personal Data requiring a data transfer agreement containing specific terms under Data Protection Laws and Regulations will be governed by such terms.

Definitions.

  1. “Data Controller” means a natural or legal person, public authority, agency or any other body who alone or jointly with others determines the purposes and means of the processing of Personal Data.
  2. “Data Processor” means A natural or legal person, public authority, agency or any other body who processes Personal Data on behalf of the Data Controller.
  3. “Data Protection Laws and Regulations” means all applicable laws and regulations for a particular country/ jurisdiction regarding the processing of Personal Data as may be revised or updated from time to time.
  4. “data subject” means any natural person and/ or juristic person (i.e. a body of persons, a corporation, a partnership, or other legal entity that is recognized under applicable Data Protection Law as the subject of rights and duties) whose personal data is being collected, held or processed;
  5. “processing” means any operation or set of operations performed on Personal Data,
  6. “personal data breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of , or access to, personal data.