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Signals Notebook Cloud Services Agreement

Signals Notebook Cloud Services Agreement


Last Updated: Feb 9, 2018

BY CLICKING “I AGREE”, BELOW OR BY INSTALLING, COPYING, ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND USERS TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER" SHALL REFER TO SUCH ENTITY, ITS AFFILIATES AND ANY OF ITS USERS OR ANY PERSON ON THEIR BEHALF. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.

SIGNALS NOTEBOOK CLOUD SERVICES AGREEMENT


This Cloud Services Agreement (“Agreement”) governs your access to and use of Signals™ Notebook, a cloud-based, on-demand electronic laboratory notebook together with any related documentation (collectively the “Service”) as well as any Free and/or Trial Version of the Service. This is a legal agreement between You (either an individual or a single entity, referred to herein as “Customer”) and PerkinElmer Informatics, Inc., a subsidiary of PerkinElmer, Inc. with its office located at 940 Winter Street, Waltham, MA 02451, USA (“PerkinElmer”) to provide the Service in accordance with the following terms and conditions.

1. LICENSE GRANT AND LIMITATIONS. For the duration of Customer's purchased subscription term and subject to Customer's payment obligations, PerkinElmer hereby grants to Customer on the terms and conditions herein a limited, revocable, non-transferable and non-exclusive right to access and use the Service for Customer's internal business purposes only. This license is for use of the Service by the named Customer only or in the event Customer is a business entity, then for the use by a limited number of named authorized users of Customer. In the event Customer is a business entity, Customer may allow its authorized users to use the Service for Customer's internal business purposes and Customer is responsible for its authorized users' compliance with this Agreement. Each authorized user will have a unique user ID and password for his or her access to the Service. Customer is responsible for maintaining the security and confidentiality of all usernames, identification numbers, passwords and access keys. Customer shall not disclose or make available passwords other than to its authorized users and shall use best efforts to prevent unauthorized access to, or use of, the Service. Customer will ensure that its authorized users will only use their respective assigned user IDs and passwords and not those of another authorized user. In the event Customer makes such passwords available to any third-party, as between PerkinElmer, its suppliers and Customer, Customer shall be solely liable for all actions taken by such third-party and resulting consequences. Customer agrees to notify PerkinElmer immediately of any unauthorized use, loss or theft of any username, password or access key, or any other known or suspected breach of security.

Customer will provide its own Internet access and all necessary communications equipment, software and other materials necessary for its authorized users to access and use the Service. Customer is responsible for the security of its own computer systems and the security of its access to and connection with the Service.

To enable PerkinElmer to provide Customer (and where applicable Customer's authorized users) with the Service, Customer grants PerkinElmer and its affiliates the right to use, process, transmit, host, copy, and display any Customer Data (as defined below) in accordance with this Agreement, for the duration of the subscription term and any additional post-termination period during which PerkinElmer provides Customer with access to retrieve an export file of Customer Data. In the event PerkinElmer requires access to Customer Data to respond to any technical problems, queries, or requests from Customer, Customer shall ensure that PerkinElmer is permitted to do so.

Customer will not take any action that: (a) interferes or attempts to interfere with the proper working of the Service or disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Service; (b) circumvents, disables, or interferes or attempts to circumvent, disable, or interfere with security-related features of the Service or features that prevent or restrict use, access to, or copying of any data or enforce limitations on use of the Service or data; or (c) imposes or may impose, in PerkinElmer's sole discretion, an unreasonable or disproportionately large load on the Service infrastructure. Further, Customer shall not use or permit use of the Service, including uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that (i) is illegal, unlawful, harassing, defamatory, obscene, pornographic, vulgar, abusive, libelous, fraudulent, tortious, or is otherwise inappropriate as determined by PerkinElmer in its sole discretion; (ii) violates privacy rights or promotes bigotry, racism, hatred or harm; (iv) constitutes unauthorized or unsolicited advertising, junk, “spam” or bulk e-mail; (v) constitutes an infringement of intellectual property or other proprietary rights; or (vi) otherwise violate applicable laws, ordinances or regulations. PerkinElmer reserves the right, but has no obligation, to take remedial action if Customer violates the restrictions set forth herein, including the removal or disablement of access to the Service. PerkinElmer shall have no liability to Customer in the event that PerkinElmer takes such action. Customer agrees to defend and indemnify PerkinElmer against any claim arising out of violation of Customer's obligations under this Section.

Customer agrees not to copy, distribute, modify or create derivative works of, reverse engineer, reverse compile, disassemble, or in any way attempt to derive the source code of the Service. Customer agrees not to (i) sub-license, lease, rent, loan, sell, distribute, transfer, or commercially share (including time-share or electronically transmitting over a network to a third party) or otherwise permit use of the Service in connection with a service bureau or other configuration whereby any third party may use the Service; or (ii) use versions of third party products embedded in Service, if any, for any use other than the intended use of the Service. Customer will comply with all applicable laws, statutes, ordinances or regulations regarding Customer Data, use of the Service, and any content therein posted by PerkinElmer or on its behalf, and/or any content to which Customer may be exposed due to Customer's use of the Service (“Content”). Customer shall not propagate any virus, worms, Trojan horses or other programming routine intended to damage any system or data. Customer shall not use the Service in any manner or for any purpose other than as expressly permitted by this Agreement. Violation of any of the above provisions in this Section 1 may result in immediate termination of this Agreement.

2. OWNERSHIP; INTELLECTUAL PROPERTY RIGHTS. The Service is copyrighted and contains proprietary information protected by law. Ownership of and title to the Service, including associated intellectual property rights, are and shall remain with PerkinElmer or its licensors. PerkinElmer may modify, delete, amend or change its applications, products, services and the Service at its sole discretion. Customer shall not remove or modify any of PerkinElmer's or its licensors' marks or proprietary notices contained on the Service website or in any documentation or materials available to Customer through use of the Service. Customer acknowledges that PerkinElmer or its licensors own all intellectual property and other rights to the Service website, and to all software, databases and tangible and intangible materials embodied in them or relating to them, including without limitation all raw, gross or compiled statistical information, aggregate anonymous statistical data regarding use and functioning of its system by users and other data obtained, assembled or developed by PerkinElmer in the course of providing its services during the Agreement, all software modifications, all derivative works, and all copyright, patent, trademark, trade secret and other intellectual property or other rights to them, without any obligation to Customer or any third party (collectively, the “PerkinElmer Intellectual Property”). Nothing contained in this Agreement will be construed to convey any title or ownership right in any of the PerkinElmer Intellectual Property to Customer, or any right to use any of the PerkinElmer Intellectual Property other than as expressly contemplated by this Agreement.

All data entered into the Service by Customer, its representatives or contractors, including all electronic data or information uploaded or otherwise submitted by Customer to the Service (“Customer Data”) will remain the sole property of Customer to the fullest extent provided by law and is entered, uploaded or otherwise submitted at Customer's sole risk. PerkinElmer is not responsible for the accuracy, completeness or integrity of any original data from Customer which is entered into the Service by Customer, its representatives or contractors. PerkinElmer does not warrant the accuracy of data in reports generated using Customer Data and expressly disclaims responsibility for the results obtained through reports designed and generated by Customer using the Service's reporting functionality. Customer is solely responsible for data validation in any reports designed and generated by Customer. During the subscription term, PerkinElmer shall back-up Customer Data in accordance with the terms of its Signals Notebook Security Policy, located at www.perkinelmer.com/lab-solutions/resources/docs/DTS_PerkinElmer_Signals_Notebook_Security.pdf. Customer is solely responsible for taking any additional measures it may deem desirable or appropriate to back up its files and/or Customer Data to prevent any loss of such files or Customer Data during Customer’s subscription term.

The Service may operate or interface with software or other technology which is not proprietary to PerkinElmer and is licensed to PerkinElmer by third parties (“Third Party Licensors”), but which PerkinElmer has the necessary rights to license to Customer (“Third Party Software”). Customer agrees that (i) Customer will use such Third Party Software in accordance with this Agreement, (ii) no Third Party Licensor makes any warranties, conditions, undertakings or representations of any kind, either express or implied, to Customer concerning such Third Party Software or the Service itself, (iii) no Third Party Licensor will have any obligation or liability to Customer as a result of this Agreement or Customer's use of such Third Party Software, (iv) such Third Party Software may be licensed under license terms which grant Customer additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this Agreement, and such additional license rights and restrictions are described or linked to within the applicable documentation, the relevant webpage, or within the Service itself.

3. TRIAL AND/OR FREE VERSION. From time to time, PerkinElmer may make available a “Trial and/or Free Version” of the Service, which is a version of the Service that may be used by Customer for the duration of the trial period set forth by PerkinElmer for internal nonproduction noncommercial evaluation, demonstration and review purposes, only, and not for general production use. The Trial and/or Free Version of the Service is provided “as is” and “as available” during the trial period and Section 9 below does not apply. PerkinElmer, in its sole discretion, may make the commercially available version of the Service available to Customer after the trial period, pursuant to Customer's acceptance of the applicable terms and conditions then in effect and payment of all applicable fees associated with such commercially available version. Before Customer's trial period expires, PerkinElmer may contact Customer and invite Customer to purchase a subscription to the commercially available version of the Service. If Customer does not purchase a subscription to the Service, this Agreement will terminate upon expiry of the trial period.

The following terms apply to the Trial and/or Free Version of the Service only: (i) a Trial and/or Free Version may have limited functionality and reduced or altered features; (ii) PerkinElmer may define a predetermined amount of time for the operation of the Trial and/or Free Version which will be notified upon subscription to the Trial and/or Free Version; (iii) the proper functionality of Trial and/or Free Version may be interrupted for evaluation, review and maintenance purposes; (iv) PerkinElmer may terminate the license of a Trial and/or Free Version at any time, introduce new features or functionality to the Trial and/or Free Version or remove existing features or functionality thereof, and define and deploy certain grades and priorities schemes; (v) PerkinElmer may provide limited technical support for the Trial and/or Free Version in its sole discretion; and (vi) PerkinElmer does not offer any warranties for such Trial and/or Free Version of the Service.

4. FEEDBACK. To the extent Customer provides PerkinElmer with feedback, including but not limited to suggestions, ideas, recommendations, enhancement requests, corrections, improvements, modifications, error identifications or other information related to the Service or any other products or services or maintains activity and performance logs, attends meetings or focus groups in person or telephonically, completes questionnaires or similar documents, or participates in joint marketing activities including but not limited to, press releases, testimonials, and referrals mutually agreed to by both parties (collectively, “Feedback”), PerkinElmer may use, disclose and exploit such Feedback without restriction, including to improve the Service and to develop, market, offer, sell and provide other products and services. PerkinElmer shall be the sole and exclusive owner of all improvements, updates, modifications, or enhancements made to the Service, whether or not conceived or made in the course of or as a result of Customer's Feedback hereunder, and of all intellectual property rights therein (collectively, the “Improvements”). Customer agrees to disclose any Feedback or the results of any tests or Improvements only to PerkinElmer and further agrees not to disclose the nature of the testing, results of testing or suggested changes or Improvements to any third party. Customer acknowledges that its contribution in the form of Feedback, services, marketing activities, expenditures, logs, or otherwise to the Improvements shall not imply or grant Customer any right, title, or interest in the Improvements, and, to the extent that Customer may be deemed by operation of law to acquire any such right, title, or interest, Customer hereby assigns and transfers to PerkinElmer all such right, title, and interest in the Improvements. Customer acknowledges and agrees that PerkinElmer is free to incorporate into any commercial products and services any Improvements suggested by Customer, and that Customer has no right to object thereto or to receive any form of compensation derived therefrom. At PerkinElmer's reasonable request, Customer agrees to execute all documents and take all necessary further action to perfect PerkinElmer's rights in the Improvements. Except as otherwise specified in this Agreement or at the written direction of PerkinElmer, Customer shall not alter or modify the Service during the subscription term without PerkinElmer's prior written approval.

5. TERM; TERMINATION. This Agreement shall become effective on the date Customer first accepts the Agreement and shall continue for the duration of the subscription term which Customer has purchased, unless sooner terminated by either party upon ten (10) calendar days' prior written notice to the other party. Notwithstanding the foregoing, PerkinElmer may terminate this Agreement immediately upon written notice to Customer if Customer violates the scope or any restriction/limitation on its license under Section 1 above or its obligations hereunder with respect to Confidential Information.

Customer's right to access and use the Service shall terminate upon expiration or termination of this Agreement. At which time, Customer must immediately (i) cease use of the Service; (ii) delete all copies of software or documentation made available to Customer by PerkinElmer; (iii) remove all Service settings from Customer's servers and devices; (iv) remove all of Customer's custom settings, software and data from PerkinElmer's network; and (v) at its expense, return to PerkinElmer all Confidential Information and data of PerkinElmer (including all copies thereof) then in Customer's possession or custody or control, and certify in writing as to such action. In no event will termination relieve Customer of its obligation to pay any fees payable to PerkinElmer for the period prior to the effective date of termination.

Upon written request by Customer made within thirty (30) days after expiration or termination of this Agreement, PerkinElmer will make available to Customer for the purpose of retrieval, Customer Data in PerkinElmer's standard machine-readable format as may be maintained by PerkinElmer from time to time in accordance with PerkinElmer's procedures and retention schedules. After such 30-day period, and except as may be required by law, PerkinElmer shall have no obligation to maintain or provide any of Customer Data and shall thereafter be entitled to dispose of, destroy or otherwise render inaccessible any Customer Data in PerkinElmer's possession or under PerkinElmer's control.

PerkinElmer may temporarily suspend Customer's access to or use of the Service if Customer or Customer's authorized users violate any provision within the “License Grant and Limitations”, “Ownership; Intellectual Property Rights”, “Fees and Payment”, “Confidentiality” or “Export” sections of this Agreement, or if in PerkinElmer's reasonable judgment, the Service or any component thereof is about to suffer significant threat to security or functionality. PerkinElmer will provide advance notice to Customer of any such suspension in PerkinElmer's reasonable discretion based on the nature of the circumstances giving rise to the suspension. PerkinElmer will use reasonable efforts to re-establish the affected Service promptly after PerkinElmer determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured; however, during any suspension period, PerkinElmer will make available to Customer, Customer Data as existing in the Service environment on the date of suspension. PerkinElmer may terminate the Service if any of the foregoing causes of suspension is not cured within thirty (30) days after PerkinElmer's initial notice thereof. Any suspension or termination by PerkinElmer under this paragraph shall not excuse Customer from Customer's obligation to make payment(s) under this Agreement. In the event that PerkinElmer suspends, terminates or prevents access to Customer's account, Customer must not attempt to re-register or submit content or Customer Data (e.g. using someone else's registration), without PerkinElmer's prior permission. The period of any suspension will be determined in at PerkinElmer's sole discretion based on the applicable facts and circumstances.

Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, indemnification, confidentiality, ownership, payment and others which by their nature are intended to survive. Upon termination, PerkinElmer will be entitled to discontinue prospective hosting of Customer Data or submissions.

6. FEES AND PAYMENT. The Service fees are payable in advance, according to the subscription plan Customer has selected (monthly, yearly, etc.). Payment obligations are non-cancellable and fees paid are non-refundable and quantities purchased cannot be decreased during the relevant subscription term. Customer agrees that Customer's subscription purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by PerkinElmer regarding future functionality or features. Customer's subscription is purchased independent of any other products or services offered by PerkinElmer. Customer's obligation to pay hereunder is not contingent on performance of any other service offerings or delivery of programs or products. Subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and any added subscriptions will terminate on the same date as the underlying subscriptions.

All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, duties, such as use, sale, excise, customs, GST or value-added taxes and similar taxes and duties imposed by any governing authority in any jurisdiction in connection with Customer's use of the Service (“Taxes”), excluding only those Taxes based upon the net income of PerkinElmer. If PerkinElmer has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, PerkinElmer will invoice Customer and Customer will pay that amount unless Customer provides PerkinElmer with a valid tax exemption certificate authorized by the appropriate taxing authority.

7. DISCLAIMER; LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE IS PROVIDED "AS IS," “AS AVAILABLE,” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PERKINELMER DOES NOT WARRANT THAT THE SERVICE (A) WILL OPERATE ERROR-FREE OR UNINTERRUPTED (INCLUDING WITHOUT LIMITATION DUE TO NETWORK OUTAGES OR THIRD PARTY FAILURES AND/OR DELAYS) OR THAT PERKINELMER WILL CORRECT ALL SERVICE ERRORS; OR (B) WILL MEET CUSTOMER'S REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS, AND CUSTOMER AGREES THAT IT WILL MAKE NO CLAIM AGAINST PERKINELMER BASED ON USE OF THE SERVICE. CUSTOMER ACKNOWLEDGES THAT PERKINELMER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PERKINELMER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. PERKINELMER IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICE THAT ARISE FROM CUSTOMER'S DATA, APPLICATIONS OR THIRD PARTY CONTENT. PERKINELMER DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD PARTY CONTENT OR SERVICES, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT OR SERVICES (INCLUDING THIRD PARTY HOSTING PROVIDERS). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. IN SUCH JURISDICTIONS, PERKINELMER'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, BUSINESS INTERRUPTION, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), DATA, OR DATA USE EVEN IF PERKINELMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AVAILABLE REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. PERKINELMER'S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER TO PERKINELMER FOR THE SERVICE GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE CAUSE OF ACTION.

8. CONFIDENTIALITY. “Confidential Information” means (i) all components of the Service, including without limitation, all non-public information and all access codes and identification numbers issued to Customer; (ii) PerkinElmer Intellectual Property; (iii) all other proprietary documentation and information relating to or exchanged during the subscription term, including the Feedback; (iv) the terms of this Agreement; (v) all Customer specific information, including information regarding Customer's clients, customers or vendors; and (vi) any other information or material disclosed or made available by either PerkinElmer or Customer relating to that party and its business, that is identified as confidential at the time it is disclosed or that should reasonably be understood to be confidential.

Neither PerkinElmer nor Customer will disclose to any entity (except to its employees representatives, agents or contractors having a need to know the Confidential Information and who are subject to confidentiality obligations no less restrictive than those herein) or use, except as permitted by this Agreement, any Confidential Information it receives pursuant to this Agreement. PerkinElmer and Customer will each exercise reasonable efforts, but in no event less than the same degree of diligence as it exercises in protecting its own trade secrets, to safeguard the Confidential Information and to prevent its unauthorized use or disclosure.

Confidential Information does not include information already known to the receiving party before the date of disclosure; information generally available to the public; or information received from a third party who is not bound by an obligation to keep it confidential. PerkinElmer's confidentiality obligations shall not apply to information that PerkinElmer is required to disclose by law (but only to the extent of such required disclosure).

This section shall survive the expiration or termination of the Agreement. If a breach of the obligations in this Section 8 occurs or is threatened, the disclosing party will be entitled to seek equitable relief, including injunction and specific performance. PerkinElmer and Customer each waive any bond requirements in connection with those remedies.

9. INDEMNIFICATION.

(a) Indemnification of Customer by PerkinElmer. Subject to the limitations of liability in Section 7, PerkinElmer shall indemnify and hold harmless Customer from, defend Customer against, pay any final judgments awarded against Customer, and pay Customer's reasonable costs and attorneys' fees resulting from any claims, liabilities, losses, suits, and damages (collectively, “Losses”) asserted by a third party alleging that the use of the Service as permitted hereunder and any documentation provided by PerkinElmer, infringes or misappropriates the intellectual property rights of such third party under the laws of the United States, unless and except to the extent that such infringement is caused by (i) the Service or documentation being modified by Customer or a third party on its behalf or used by Customer or a third party on its behalf outside the scope of use identified in PerkinElmer's documentation; (ii) instructions or PerkinElmer's use of trademarks, Customer Data, content or other materials supplied by Customer; (iii) the combination of the Service with any products or services not provided by PerkinElmer; or (iv) Customer's actions or inactions if the Service and/or documentation as delivered to Customer would not otherwise infringe any third party intellectual property rights. In the event of a claim under this Section 9(a), PerkinElmer has the right to (a) obtain a license to allow for Customer's continued use; (b) modify the Service or documentation so that it no longer infringes a third party's intellectual property rights; or (c) if these alternatives are not commercially reasonable (in PerkinElmer's sole discretion), terminate this Agreement and provide a pro rata refund of any unused, prepaid fees paid by Customer (if any) for the affected Service which relates to the period after the date of termination. Section 9(a) sets out Customer's sole remedy and PerkinElmer's entire liability in the event of claims of infringement of the intellectual property rights of any third party.

(b) Indemnification of PerkinElmer by Customer. Customer shall indemnify and hold harmless PerkinElmer, its officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest (collectively “PerkinElmer Indemnitees”) from, defend PerkinElmer Indemnitees against, pay any final judgments awarded against PerkinElmer Indemnitees, and pay all of PerkinElmer Indemnitees' reasonable costs and attorneys' fees resulting from any Losses asserted by a third party based on (i) Customer's improper or misuse of the Service (including without limitation, in violation of applicable laws, rules or regulations); (ii) PerkinElmer's compliance with Customer's instructions/unique specifications; or (iii) PerkinElmer's use of trademarks, Customer Data, content or other materials supplied by Customer.

(c) Indemnification Procedures. If any third party makes a claim covered by Section 9(a) or Section 9(b) against an indemnitee with respect to which such indemnitee intends to seek indemnification under this Section, such indemnitee shall (a) promptly give written notice of such claim to the indemnifying party; (b) give the indemnifying party sole control of the defense and any settlement negotiations; and (c) give the indemnifying party the information, authority and assistance the indemnifying party reasonably needs to defend against or settle the claim. The indemnifying party shall keep the indemnitee fully apprised at all times as to the status of the defense. Notwithstanding the foregoing, the indemnitee shall have the right to employ its own separate counsel in any such action, but the fees and expenses of such counsel shall be at the expense of the indemnitee. Neither the indemnifying party nor any indemnitee shall be liable for any settlement of action or claim affected without its consent.

10. MAINTENANCE AND SUPPORT. PerkinElmer will provide to Customer standard electronic technical support for the Service during its normal business hours in response to email queries at no additional charge. Customer may contact PerkinElmer for technical support via: www.perkinelmer.com/informatics/support/contact/.

PerkinElmer will not be responsible or liable with respect to any Service problems or issues arising from (i) unauthorized or improper use of the Service; (ii) modification, alteration or configuration of the Service by or for Customer that has not been authorized in writing by PerkinElmer, (iii) hardware, software, technology or intellectual property which has not been provided by PerkinElmer pursuant to this Agreement, (iv) communications facilities or equipment not provided by PerkinElmer; (v) any breach of this Agreement by Customer, or any act or omission of any authorized user which, if performed or omitted by Customer would be a material breach of this Agreement, and/or (vi) any act or omission of Customer or any authorized user that prevents, delays, disturbs or interferes with PerkinElmer's performance of its obligations hereunder.

Customer is required to accept all patches, bug fixes, updates, maintenance and service packs (collectively “Patches”) necessary for the proper function and security of the Service, as such Patches are generally released by PerkinElmer and as may be described in PerkinElmer's maintenance and support documentation available at www.perkinelmer.com/informatics/support/SMPs/ or such other address specified by PerkinElmer) and incorporated herein by reference. PerkinElmer is not responsible for performance or security issues encountered with the Service that result from Customer's failure to accept the application of Patches that are necessary for the proper function and security of the Service.

11. ASSIGNMENT. Customer may not sublicense, assign, transfer the license or give any third party access to the Service. Any attempt by Customer to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void.

12. GOVERNMENT END USER RESTRICTION. This provision applies to software acquired directly or indirectly by or on behalf of the United States Government. The Service is a commercial product, licensed on the open market and was developed entirely at private expense and without the use of any U.S. Government funds. Use, duplication, reproduction, release, modification, disclosure or transfer of the Service, or any related documentation, including technical data, manuals or materials, by the U.S. Government is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies and is further restricted according to the terms of this Agreement and any amendment hereto.

13. EXPORT CONTROL. The Service, Content, other technology PerkinElmer makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer may not use, transfer or otherwise export or re-export the Service except as authorized by United States law (including but not limited to the regulations administered by the U.S. Department of Commerce and the U.S. Department of the Treasury) and the laws of the jurisdiction in which the Service was obtained. The Service may not be (a) downloaded, transferred, supplied, exported, re-exported to or used in any country currently under U.S. embargo, (b) downloaded, transferred, supplied, exported, re-exported to or used by any person or entity included in any of the lists of restricted or denied parties maintained by the United States government (including but not limited to the U.S. Treasury Department's list of Specially Designated Nationals, the U.S. Department of Commerce Denied Person's List or the U.S. Entity List under the Export Administration Regulations), or any person or entity acting on behalf of a person or entity included in any of these lists. By using the Service, Customer represents and warrants that Customer and its authorized users are not located in any such country or included on any such list. Customer undertakes not to enter into the Service any data (regardless of form, format or content) that is or may be subject to the U.S. Export Administration Regulations or the International Traffic In Arms Regulations. Customer also agrees that Customer will not use the Service for any purposes prohibited by United States law, including, but not limited to, (i) the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons and (ii) nuclear explosive activities, unsafeguarded nuclear activities or nuclear fuel-cycle activities (whether safeguarded or unsafeguarded).

14. ENTIRE AGREEMENT. This Agreement and the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy) constitutes the complete Agreement between PerkinElmer and Customer with respect to the Service and supersedes all prior or contemporaneous agreements and representations, written or oral, regarding the Service. The terms of this Agreement shall supersede the terms in any Customer purchase order, correspondence, or other similar non-PerkinElmer document and no terms included in any such purchase order, correspondence, or other non-PerkinElmer document shall apply to the Service. Customer may not modify or amend any provision of this Agreement without first obtaining PerkinElmer's prior written approval signed by an authorized representative of PerkinElmer. PerkinElmer may modify or amend the terms upon written notification to Customer.

15. GOVERNING LAW. This Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflicts of law. Uniform Computer Information Transactions Act does not apply to this Agreement or Cloud Service subscriptions purchased under it.

16. DISPUTE RESOLUTION. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be decided by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Each party shall bear its own costs, fees and expenses incurred in connection with this arbitration proceeding, including attorneys' fees and expenses and witness costs and expenses. Each party will pay its own costs plus an equal share of the cost of the arbitrators and the arbitration facilities. Arbitration shall take place in Boston, Massachusetts, unless the parties mutually agree to another location. Notwithstanding the foregoing, a party may, without waiving any remedy under this Agreement, seek from any court with jurisdiction, interim or provisional equitable relief necessary to protect such party's rights or property, without an obligation on the part of such party to first attempt to negotiate a settlement of any claim or submit such claim to arbitration, pursuant to this section before seeking such relief. Any civil action seeking injunctive relief, challenging an arbitration proceeding or award or otherwise related to this Agreement will be instituted and maintained exclusively in the federal or state courts of Massachusetts.

BY ENTERING INTO THIS AGREEMENT, WHICH CONTAINS THIS ARBITRATION PROVISION, THE PARTIES ARE WAIVING THE RIGHT TO A JURY TRIAL AS TO ANY CLAIMS EACH PARTY MAY CLAIM TO HAVE AGAINST THE OTHER.

17. PRIVACY; DATA PROTECTION. In providing the Service, it is PerkinElmer's policy to respect the privacy of all users. Customer's use of the Service as well as certain other information about Customer is subject to the terms and conditions of PerkinElmer's Privacy Policy http://www.perkinelmer.com/corporate/policies/privacy-policy.html which is incorporated into this Agreement by this reference. The Privacy Policy is subject to change at PerkinElmer's discretion.

Customer is responsible for any security vulnerabilities and the consequences of such vulnerabilities arising from Customer Data, including any viruses, Trojan horses, worms or other programming routines contained in Customer Data that could limit or harm the functionality of a computer or that could damage, intercept or expropriate data.

Customer should not maintain in the Service nor provide PerkinElmer access to health, payment card or similarly sensitive personal information that imposes specific data security obligations for the processing of such data without first notifying PerkinElmer and securing its approval.

18. MISCELLANEOUS.

(a) Force Majeure. Neither party to the Agreement shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage, act of God, pandemic, electrical, internet, or telecommunication outage that is not caused by the obligated party, government restrictions (including the denial or cancellation of any export, import or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. This Section does not excuse Customer's obligation to pay for the Services.

(b) Independent Contractor. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

(c) Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

(d) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the provision will be deemed null and void and shall be replaced with another term consistent with the purpose and intent of this Agreement, and the remaining provisions of this Agreement will remain in effect.

(e) Notice. Any notice required under this Agreement shall be provided to the other party in writing. Customer should send written notice to PerkinElmer to: PerkinElmer Informatics, Inc., 940 Winter Street, Waltham, MA 02451, USA, Attention: Legal Department. PerkinElmer may give notices applicable to PerkinElmer's Cloud Service customer base by means of a general notice on PerkinElmer's website for the Cloud Service, and notices specific to Customer by electronic mail to Customer's e-mail address on record in PerkinElmer's account information or by written communication send by first class mail or pre-paid post to Customer's address on record in PerkinElmer's account information.

(f) Copyright Complaints and Removal Policy. PerkinElmer does not tolerate content that appears to infringe any copyright or other intellectual property rights or otherwise violates the terms of this Agreement and will respond to notices of alleged copyright infringement that comply with the law and are properly provided to PerkinElmer. PerkinElmer reserves the right to delete or disable access to the Service and any content alleged to violate this Agreement and to terminate repeat infringers. PerkinElmer's designated agent for notice of alleged copyright infringement is:

Attention: Legal Department – DMCA Copyright Agent
PerkinElmer, Inc.
940 Winter Street
Waltham, MA 02451 USA

Federal law requires the Digital Millennium Copyright Act (“DMCA”) Notice to include the following information:

  1. Identification of the copyrighted work that is claimed to have been infringed;
  2. Identification of the material, including URL, that is claimed to be infringing, with enough detail so that PerkinElmer may locate it;
  3. Address, telephone number, and e-mail address of claimant;
  4. A statement declaring under penalty of perjury that (a) claimant has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (b) the above information in claimant's notice is accurate, and (c) claimant is the owner of the copyright interest involved or is authorized to act on behalf of that owner; and
  5. Claimant's physical or electronic signature.

(g) Audit. PerkinElmer may audit Customer's use of the Service (e.g., through use of software tools) to assess whether Customer's use of the Service is in accordance with purchased subscription and the terms of this Agreement. Customer agrees to cooperate with PerkinElmer's audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Customer's normal business operations. Customer agrees to pay within 30 days of written notification any fees applicable to Customer's use of the Service in excess of Customer's rights. If Customer does not pay, PerkinElmer can terminate Customer's access and use of the Service. Customer agrees that PerkinElmer shall not be responsible for any of Customer's costs incurred in cooperating with the audit.