Cytiva Terms of Service for Cloud Products
Last Updated: December 14, 2020
IMPORTANT - PLEASE READ CAREFULLY
CYTIVA PROVIDES ACCESS TO THE SERVICES AND THE CYTIVA MATERIALS SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS OF SERVICE FOR CLOUD PRODUCTS (THIS “AGREEMENT”) AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. THIS AGREEMENT IS A BINDING AGREEMENT BETWEEN CYTIVA AND YOU. BY (I) CLICKING ‘ACCEPT,’ (II) ACCESSING OR USING THE SERVICES, (III) CREATING AN INTERNET-BASED ACCOUNT WITH CYTIVA IN RESPECT OF THE SERVICES OR, (IV) CONTINUING TO USE THE SERVICES AFTER BEING NOTIFIED OF CHANGES TO THIS AGREEMENT YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU AND YOUR AUTHORIZED USERS ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CYTIVA WILL NOT AND DOES NOT GRANT YOU ACCESS TO THE SERVICES OR THE CYTIVA MATERIALS AND YOU MUST NOT ACCESS OR OTHERWISE USE THE SERVICES OR THE CYTIVA MATERIALS.
Scope; Services; Use License
- Product Specific Terms. By (i) accessing and using a product covered by Product Specific Terms, (ii) creating an internet-based account with Cytiva in respect of a product covered by Product Specific Terms or (iii) continuing to use a product covered by Product Specific Terms after being notified of changes to this Agreement or the Product Specific Terms, you agree to the Product Specific Terms.
Services. Subject to and conditioned on compliance with the terms and conditions of this Agreement (including payment of all Fees) by you and your Authorized Users, Cytiva shall use commercially reasonable efforts to provide to you and its Authorized Users the cloud-based service offerings set forth in the applicable Order Form (the "Subscription Services") and (ii) if applicable, any related implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management related to your access to, and use of, such Subscription Services, each as set forth in an applicable Order Form (the "
Support Services" and together with the Subscription Services, the "Services"). Cytiva may from time to time in its discretion engage third parties to perform the Services.
- Use License. Subject to and conditioned on compliance with the terms and conditions of this Agreement (including payment of all Fees) by you and your Authorized Users, Cytiva hereby grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable, right to access and use the Services during the Term for your internal business purposes only. Cytiva further grants to you and its Authorized Users a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for your internal business purposes in connection with the use of the Services.
Evaluations; Trials; Beta Versions.
- Cytiva may make available accounts, trial/test, pre-release and beta products offerings, or pre-release and beta features within generally available Service offerings, to you at no charge (collectively, “No-Charge Products”). Use of No-Charge Products is only permitted during the trial period we designate (or, if not designated, until terminated by Cytiva upon written notice, or in accordance with this Agreement) (the “Trial Period”).
- Cytiva grants to you, for the applicable Trial Period, a limited, revocable, non-exclusive, non-sublicensable, non-transferable, right to access and use the No-Charge Products for the purpose of internal, noncommercial, evaluation, and review of the No-Charge Products, and not for general commercial use. In certain cases, Cytiva may charge a nominal fee in order to allow you to access the No-Charge Products, but such No-Charge Products shall still remain subject to this Section 2.5.
- Your use of the No-Charge Products shall be governed by the terms of this Section 2.5, the other terms of this Agreement, and any Product Specific Terms that Cytiva may apply to the No-Charge Products, from time to time. In the event of a conflict between the applicable terms, the order of precedence shall be as follows: (a) the Product Specific Terms, (b) this Section 2.5, and (c) the other terms of this Agreement.
- Cytiva shall be under no obligation to provide you with any commercial services relating to the No-Charge Products following expiration of the Trial Period.
- You acknowledge that the No-Charge Products contains confidential information and trade secrets of Cytiva and its licensors, are hereby deemed Cytiva’s Confidential Information.
- You acknowledge and agree that: (a) the No-Charge Products are not an official product and have not been commercially released for sale by Cytiva; (b) the No-Charge Products may not operate properly, be in final form or fully functional; (c) the No-Charge Products may contain errors, design flaws or other problems; (d) it may not be possible to make the No-Charge Products fully functional; (e) the information obtained using the No-Charge Products may not be accurate and may not accurately correspond to information extracted from any database or other source; (f) use of the No-Charge Products may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (g) Cytiva is under no obligation to release a commercial version of the No-Charge Products; and (h) Cytiva has the right unilaterally to abandon development of the No-Charge Products, terminate the license to the No-Charge Products at any time, introduce new features or functionality to the No-Charge Products or remove existing features or functionality thereof, and define and deploy certain grades and priorities schemes, at any time and without any obligation or liability to you. You acknowledge and agree that you should not rely on the No-Charge Products for any reason. You are solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored, or otherwise processed by the No-Charge Products. You will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of your use of the No-Charge Products.
- The No-Charge Products are provided ON AN "AS IS" BASIS "WITH ALL FAULTS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND. For the avoidance of doubt, the terms of Section 13.1 shall apply to No-Charge Products. To the maximum extent permitted by applicable law, IN NO EVENT WILL CYTIVA'S AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE REPRESENTATIVES AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY IN CONNECTION WITH NO-CHARGE PRODUCTS, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED ONE HUNDRED U.S. DOLLARS (U.S. $100).
- Reservation of Rights. Nothing in this Agreement grants to any Person or entity any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Cytiva Materials, or any Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services and the Cytiva Materials are and will remain with Cytiva and its licensors.
Administrators. During the configuration and set-up process for the Services, you will identify an administrative user for your account. You agree that the administrative user shall provide current, correct, and complete registration details to Cytiva. Cytiva will provide login details to the administrative user. Cytiva reserves the right to refuse registration of, or cancel user names it deems inappropriate. You are responsible for who you allow to become the administrative user for your account and any actions such administrative user may take. You agree that Cytiva’s responsibilities do not extend to your internal management or administration of the Services.
- Each administrative user will have the full authority to act on your behalf in respect of your account. Administrative users may (a) add and delete Authorized User, (b) specify and amend the roles of Authorized Users, (c) access your account registration; and (d) take any other permitted action to administer your use of the Services.
- Authorized Users. You may allow such number of your employees as is indicated on the Order Form to use the Services as Authorized Users. Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User, but such subscriptions may be reassigned to new Authorized Users replacing former Authorized Users who no longer require access to the Services. You may add additional Authorized Users by placing a new order for the Services or modifying an existing Order Form. You may be charged additional Fees for any increased use at Cytiva’s then-current rates. You shall use commercially reasonable efforts to cause Authorized Users to be, at all times, educated and trained in the proper use and operation of the Services such Authorized Users utilize, and to ensure that the Services are used in accordance with the Documentation and any other applicable manuals, instructions and specifications provided by Cytiva from time to time.
- Authorized User Conditions to Use. As a condition to access and use of the Services, each Authorized User shall agree to be bound by the terms and conditions of this Agreement, and, in each case, you shall ensure such compliance. You shall immediately notify Cytiva of any violation of the terms and conditions of this Agreement by any Authorized User. You are responsible for controlling who you allow to become an Authorized User. You shall be liable for any breach by any Authorized User of the terms and conditions of this Agreement.
- Access Credentials. You must require that all Authorized Users, keep usernames, passwords, or other Access Credentials strictly confidential and do not share such information with any unauthorized person. You and your Authorized Users should exercise particular caution when accessing the Services from a public or shared computer, so that others are not able to view or misappropriate your Access Credentials.
- Age Requirement for End Users. The Services are not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all Authorized Users are at least 18 years old.
- Account Responsibility. You will be responsible for all uses of any account licensed to you, whether or not you have authorized the particular use or user, and regardless of your knowledge of such use.
- Suspension or Termination of Services. Cytiva may, directly or indirectly, and by use of a Disabling Device or any other lawful means, suspend, terminate, or otherwise deny you, any Authorized User, or any other Person's access to or use of all or any part of the Services or the Cytiva Materials, without incurring any resulting obligation or liability, if: (a) Cytiva receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Cytiva to do so; or (b) Cytiva believes, in its good faith and reasonable discretion, that: (i) you or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) you or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. Cytiva shall have no liability to you in the event that Cytiva takes such action. This clause does not limit any of Cytiva's other rights or remedies, whether at law, in equity, or under this Agreement.
- Administrators. During the configuration and set-up process for the Services, you will identify an administrative user for your account. You agree that the administrative user shall provide current, correct, and complete registration details to Cytiva. Cytiva will provide login details to the administrative user. Cytiva reserves the right to refuse registration of, or cancel user names it deems inappropriate. You are responsible for who you allow to become the administrative user for your account and any actions such administrative user may take. You agree that Cytiva’s responsibilities do not extend to your internal management or administration of the Services.
- Third Party Materials
Use Restrictions. You shall not, and shall not permit any other Person to, access or use the Services or Cytiva Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing:
- You shall not, except as this Agreement expressly permits: (a) copy, modify, or create derivative works or improvements of the Services or Cytiva Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Cytiva Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Cytiva Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Services or Cytiva Materials or access or use the Services or Cytiva Materials other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) input, upload, transmit, or otherwise provide to or through the Services or Cytiva Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Cytiva Systems, or Cytiva's provision of services to any Third Party, in whole or in part; (g) impose or may impose, in Cytiva's sole discretion, an unreasonable or disproportionately large load on the Service infrastructure; (h) remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Cytiva Materials, including any copy thereof; (i) access or use the Services or Cytiva Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Third Party, or that violates any applicable law; (j) access or use the Services or Cytiva Materials for purposes of competitive analysis of the Services or Cytiva Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Cytiva's detriment or commercial disadvantage; or (k) access or use the Services or Cytiva Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or (l) otherwise access or use the Services or Cytiva Materials beyond the scope of the authorization granted under this Agreement.
- You shall not use or permit use of the Services, including through uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that (a) is illegal, unlawful, harassing, defamatory, obscene, pornographic, vulgar, abusive, libelous, fraudulent, tortious, or is otherwise inappropriate as determined by Cytiva in its sole discretion; (b) violates privacy rights or promotes bigotry, racism, hatred or harm; (c) constitutes unauthorized or unsolicited advertising, junk, spam or bulk e-mail; (d) to record any information which would identify a patient or that meets the definition of patient data in the country in which the information is being recorded, stored or accessed or in the patient’s home country; (e) for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise; (f) to impersonate or attempt to impersonate Cytiva, a Cytiva employee, another customer or any other Person (including, without limitation, by using e-mail addresses or registration names associated with any of the foregoing); (g) use any robot, spider or other automatic device, process or means to access the Service for any purpose, including monitoring or copying any of the material on the Service or (h) otherwise violates applicable law.
- Use Restrictions. You shall not, and shall not permit any other Person to, access or use the Services or Cytiva Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing:
- Customer Systems and Cooperation. You shall at all times during the Term: (a) set up, maintain, and operate in good repair all Customer Systems through which the Services are accessed or used; (b) provide Cytiva Personnel with such access to your premises and the Customer Systems as is necessary for Cytiva to perform the Services; and (c) provide all cooperation and assistance as Cytiva may reasonably request to enable Cytiva to exercise its rights and perform its obligations under and in connection with this Agreement.
- Effect of Customer’s Failure or Delay. Cytiva is not responsible or liable for any delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of your obligations under this Agreement.
- Corrective Action and Notice. If you become aware of any activity (actual or threatened) that is prohibited under this Agreement, you shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify Cytiva of any such actual or threatened activity.
- Excess Use. If your use, or the use of your Authorized Users, of the Services exceeds the volume of use authorized, without derogation of any other rights or remedies Cytiva may have, whether at law, in equity, or under this Agreement, Cytiva may request that you pay the Fees attributable to the excess use.
- Access and Security. You shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data.
- Data Backup. The Services do not replace the need for you to maintain regular data backups or redundant data archives. CYTIVA HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
- Changes to the Services. Unless otherwise specified in the Order Form or Product Specific Terms, Cytiva reserves the right, in its sole discretion, to make any changes to the Services or the Cytiva Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Cytiva's services to its customers; (ii) the competitive strength of or market for Cytiva's services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable law. Any changes to the Services that are requested by you, shall be considered Support Services, and if agreed by the parties, shall be outlined in a separate Order Form and/or statement of work and you shall be charged an additional Fee for such changes.
- Updates may be necessary in order to keep using the Services. Cytiva may automatically check your version of the Services and download updates or configuration changes. You are obliged to accept any and all updates in order to continue using the Services. You may withdraw your consent to future updates by deleting and discontinuing use of the Services.
- Changes to this Agreement. Cytiva may change the terms and conditions of this Agreement at any time. We shall provide you with notice of any such changes via your account portal, by posting the modified agreement on the platform through which you access the Services, or through such other medium as Cytiva determines from time to time. Such changes to the terms and conditions shall become effective immediately upon notice. Using the Services after the changes become effective means you agree to the new terms and conditions. If you do not agree to the new terms and conditions, you must stop using the Services and the Cytiva Materials and close your account in respect of the Services.
In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 9.1, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential".
- Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a Third Party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
- Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9.2; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9; (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and (e) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 9.
- Notwithstanding any other provisions of this Agreement, the Receiving Party's obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
- Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3, and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
- Services and the Cytiva Materials. All right, title, and interest in and to the Services and the Cytiva Materials, including all Intellectual Property Rights therein, are owned by Cytiva. You have no right, license, or authorization with respect to any of the Services or the Cytiva Materials except as expressly set forth in this Agreement. All other rights in and to the Services and the Cytiva Materials are expressly reserved by Cytiva. In furtherance of the foregoing, you hereby unconditionally and irrevocably grant to Cytiva an assignment of all right, title, and interest in and to the Feedback, including all Intellectual Property Rights relating thereto. For clarity and without derogation of the foregoing, Cytiva may 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, including to improve the Services and to develop, market, offer, sell and provide other products and services. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
- Cytiva Trademarks. Trademarks, logos, and service marks displayed on the Services are registered and unregistered trademarks of Cytiva, its licensors or services providers, or other Third Parties. All of these trademarks, logos and service marks are the property of their respective owners. Nothing shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark, logo or service mark displayed on the Services without the owner's prior written permission, except as otherwise described herein. We reserve all rights not expressly granted in and to the Services and its content.
- Customer Data. As between you and Cytiva, you are and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 10.4. You represent, warrant, and covenant to Cytiva that you own or otherwise have and will have the necessary rights and consents in and relating to the Customer Data so that, to the extent the Customer Data is received by Cytiva and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any Third Party or violate any applicable law.
- Consent to Use Customer Data. You hereby irrevocably grant all such rights and permissions in or relating to the Customer Data as are necessary or useful to Cytiva, its subcontractors, and the Cytiva Personnel to enforce this Agreement and exercise Cytiva's, its subcontractors', and the Cytiva Personnel's rights and perform Cytiva's, its subcontractors', and the Cytiva Personnel's obligations hereunder.
- CYTIVA, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE REPRESENTATIVES AND SERVICE PROVIDERS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO YOUR USE OF THE SERVICES OR THE CYTIVA MATERIALS. YOU UNDERSTAND THAT USE OF THE SERVICES OR THE CYTIVA MATERIALS IS AT YOUR OWN RISK AND THAT WE PROVIDE THE SERVICES AND THE CYTIVA MATERIALS ON AN "AS IS" BASIS "WITH ALL FAULTS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.
- TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, CYTIVA, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE REPRESENTATIVES AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES AND THE CYTIVA MATERIALS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, CYTIVA PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES AND CYTIVA MATERIALS WILL MEET THE CUSTOMER'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, MATERIALS, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY TIMELINESS, PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED OR THAT DEFECTS IN THE SERVICES AND CYTIVA MATERIALS ARE CORRECTABLE OR WILL BE CORRECTED. CYTIVA DOES NOT GUARANTEE THAT CONTENT LOSS WILL NOT OCCUR, NOR DOES CYTIVA GUARANTEE ANY CONNECTION TO OR TRANSMISSION FROM COMPUTER NETWORKS. CUSTOMER SHALL BE SOLELY RESPONSIBLE TO VALIDATE ANY RESULTS GENERATED BY CUSTOMER THROUGH USE OF THE SERVICES. THE SERVICES AND CYTIVA MATERIALS ARE NOT DESIGNED, MANUFACTURED, TESTED, OR INTENDED FOR HIGH RISK ACTIVITIES, AND CYTIVA EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE FOR HIGH RISK ACTIVITIES. YOU AND YOUR AUTHORIZED USERS ARE PROHIBITED FROM USING THE SERVICES OR CYTIVA MATERIALS FOR HIGH RISK ACTIVITIES, AND ANY SUCH USE IS AT YOU OR YOUR AUTHORIZED USER’S OWN RISK. YOU AND YOUR AUTHORIZED USERS WAIVE ALL CLAIMS AGAINST CYTIVA ARISING FROM USE OF SERVICES OR THE CYTIVA MATERIALS FOR HIGH RISK ACTIVITIES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CYTIVA, ITS AFFILATES OR AN AUTHORIZED REPRESENTATIVE OF CYTIVA OR ITS AFFILATES WILL CREATE A WARRANTY. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IF THESE LAWS APPLY TO CUSTOMER, YOU MAY HAVE ADDITIONAL RIGHTS.
Limitations of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
- EXCLUSION OF DAMAGES. IN NO EVENT WILL CYTIVA AND ITS AFFILIATES, INCLUDING ANY OF ITS OR THEIR RESPECTIVE REPRESENTATIVES OR SERVICE PROVIDERS, BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES; (E) LOSS OF GOODWILL OR REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, TREBLE, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
- LIABILITY CAP. IN NO EVENT WILL CYTIVA'S AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE REPRESENTATIVES AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED (I) THE AMOUNT RECEIVED BY CYTIVA FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE RELEVANT CLAIM AROSE, OR (II) IF NO AMOUNTS WERE RECEIVED BY CYTIVA FROM CUSTOMER DURING SUCH PERIOD, ONE THOUSAND U.S. DOLLARS ($1,000).
- THE LIMITATIONS SET FORTH IN SECTION 13.1 AND SECTION 13.2 SHALL APPLY EVEN IF THE CUSTOMER'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATIONS SET FORTH IN SECTION 13.1 AND SECTION 13.2 SHALL NOT APPLY TO LIABILITY ARISING UNDER, FRAUD, WILLFUL MISCONDUCT, DEATH, PHYSICAL INJURY OR OTHER LIABILITY WHICH CANNOT BE LIMTED AS A MATTER OF LAW.
- Collection and Use of Information
- All Fees are set forth in the Order Form, are payable in the manner set forth in the Order Form or the Product Specific Terms, and are non-refundable, except as may be expressly set forth in the Order Form or the Product Specific Terms. Any renewal of the license hereunder shall not be effective until the Fees for such renewal have been paid in accordance with the terms and conditions herein, in the Order Form or the Product Specific Terms.
- Cytiva may increase Fees after the first contract year of the Term, including in any contract year of any Renewal Term, by providing written notice to you at least thirty calendar days prior to the commencement of that contract year, or as otherwise set forth in the Order Form or the Product Specific Terms.
- You acknowledge that the Services are purchased separately from any of our other products or services. Payment obligations for the Services are not contingent on the purchase or use of any of our other products (and for clarity, purchases of the Subscription Services and Support Services are separate and not contingent on each other, even if listed on the same Order Form). You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments we make regarding future functionality or features.
If you purchased the Services through an authorized partner or reseller of Cytiva (“Reseller”):
- Instead of paying Cytiva, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. We may suspend or terminate your rights to use the Services if we do not receive the corresponding payment from the Reseller.
- Your order details will be as stated in the Order Form placed with us by the Reseller on your behalf, and Reseller is responsible for the accuracy of any such Order Form as communicated to us.
- Resellers are not authorized to modify the terms of this Agreement or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in this Agreement.
- All payments due and payable by you to Cytiva under this Agreement are exclusive of any Value Added Tax (“VAT”), sales and use tax, goods and services tax and similar indirect taxes. In the event that any VAT, sales and use tax, goods and services tax and similar indirect taxes are properly due under any applicable law, regulation or otherwise, this shall be charged by Cytiva in addition to any other payments due hereunder and shall be payable by you on receipt of a valid tax invoice issued by Cytiva unless you provide Cytiva with valid exemption documentation allowing Cytiva not to charge the relevant indirect taxes. In addition, and in the case of U.S. domestic transactions only (i) in the event Cytiva is assessed taxes, interest and penalty by any taxing authority, you agree to reimburse Cytiva for any such taxes, including any interest or penalty assessed thereon; and (ii) each party is responsible for any personal property or real estate taxes on property that the party owns or leases, for franchise and privilege taxes on its business, and for taxes based on its net income or gross receipts.
- All payments due and payable by you to Cytiva under this Agreement shall be made in full, free and clear of all deductions (including but not limited to withholding taxes) that may be properly due under any applicable law, regulation or otherwise. The parties shall, if applicable, cooperate with each other to make all necessary applications under the terms of any relevant double taxation agreements or other law to ensure that any withholding or similar taxes are exempted or reduced to the extent possible. Any such taxes that remain payable on the payments due from you to Cytiva shall be borne by you making a gross-up of the amounts due so that the payment is remitted fully and net of any such taxes. As a result, in the case of any such withholding or deduction, the net amount receivable by Cytiva shall be equal to the amount receivable if no withholding or deduction had taken place. All taxes shall be paid by you when due and you shall deliver to Cytiva, within thirty (30) days after the end of the month in which the payment is made, evidence satisfactory to Cytiva (including all relevant tax receipts) that the payment has been duly remitted to the appropriate competent authority.
- All amounts payable to Cytiva under this Agreement shall be paid to Cytiva in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
Term and Termination
- Term. This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form, the Product Specific Terms, or until earlier terminated as set forth herein (the "Term").
- Termination for Cause. Cytiva may terminate this Agreement (including all related Order Forms) immediately if you (a) fail to cure any breach of this Agreement within fifteen (15) days after notice; (b) cease operation without a successor; or (c) seek protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
- Termination for Convenience. You may stop using the Services and the Cytiva Materials and terminate this Agreement (including all Orders Forms) at any time for any reason upon written notice to us, but, upon any such termination (i) you will not be entitled to a refund of any pre-paid Fees and (ii) if you have not already paid all applicable fees for the then-current Term, any such Fees that are outstanding will become immediately due and payable.
Effects of Termination.
- Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and you and your Authorized Users shall cease using the Services and the Cytiva Materials. No expiration or termination shall affect your obligation to pay all your Fees that may have become due before such expiration or termination, or entitle you to any refund.
- You must delete (or at our request, return) all Confidential Information or other materials of Cytiva in your possession, including residing on any third-party systems operated on your behalf. You will certify such deletion upon our request.
- You will not have access to Customer Data (and we may delete all Customer Data unless legally prohibited) after expiration or termination of this Agreement, so you should export or otherwise download as enabled by the Service the Customer Data during the Term.
- Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: Section 1, Section 9, Section 10, Section, 11, Section 12, Section 13, Section 15, Section 16.4, Section 16.5, Section 17, Section 18, Section 19.
- Export Regulation
- U.S. Government Rights
Choice of Law.
- FOR CUSTOMERS THAT ARE NON-U.S. RESIDENTS: All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the substantive laws of the country where Cytiva is situated, without giving effect to any choice or conflict of law provision or rule, and the parties hereby submit to the non-exclusive jurisdiction of the courts of that country.
- FOR CUSTOMERS THAT ARE U.S. RESIDENTS: All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware, and the parties hereby submit to the non-exclusive jurisdiction of the courts of the State of Delaware.
- FOR ALL CUSTOMERS: In no event shall this Agreement be governed by the UN Convention on Contracts for the International Sale of Goods. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
- All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; (iv) the later of the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid, and the day of receipt of the return receipt following mailing by certified or registered mail, postage pre-paid; (v) notice provided pursuant to Section 7.2; (or) otherwise as set forth in the applicable Product Specific Terms. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time or otherwise designated in accordance with this Section 19.3).
- The relationship of the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other in any manner whatsoever.
- This Agreement, together with the Order Form, the Product Specific Terms, all annexes, schedules, and exhibits attached hereto constitutes the sole and entire agreement between you and Cytiva with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Notwithstanding the foregoing, in the event of a conflict between this Agreement and any Order Form or exhibit to this Agreement, the order of precedence is: (i) the Product Specific Terms, (ii) this Agreement; (iii) any annexes, schedules, and exhibits attached this Agreement; and lastly (iv) the Order Form. THE TERMS OF THIS AGREEMENT WILL PREVAIL OVER ANY GENERAL TERMS AND CONDITIONS OF SERVICE SUPPLIED BY YOU, REGARDLESS OF WHETHER OR WHEN YOU HAVE SUBMITTED ANY SUCH TERMS. FOR THE AVOIDANCE OF DOUBT, ANY GENERAL TERMS AND CONDITIONS SUPPLIED BY YOU ON ANY ORDER FORM, OR OTHER INSTRUMENTS SHALL NOT APPLY TO THE SERVICES. YOUR ABILITY TO ACCESS THE SERVICES SHALL NOT CONSTITUTE ACCEPTANCE OF ANY TERMS AND CONDITIONS SUPPLIED BY YOU.
- You shall not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Cytiva's prior written consent, which consent Cytiva may give or withhold in its sole discretion; provided however, that you may, without consent, assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations under this Agreement in connection with the sale of substantially all of your assets or capital stock, a merger or reorganization of you. No delegation or other transfer will relieve you of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 19.6 is void. Cytiva may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without your consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
- This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- You agree that Cytiva may identify you as a customer and use your logo and trademark in Cytiva’s promotional material. Except as set forth in the preceding sentence, neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, in each case, without the prior written consent of the other party.
- 19.10 In no event will Cytiva be liable or responsible to you, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Cytiva's reasonable control (a "Force Majeure Event"), including acts of God, pandemic, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. You may terminate this Agreement in accordance with Section 16.3 if a Force Majeure Event affecting Cytiva’s performance hereunder occurs. Cytiva may terminate this Agreement in accordance with Section 16.2 if a Force Majeure Event affecting your performance hereunder occurs.
- You acknowledge and agree that a breach or threatened breach by you or your Authorized Users of any of their obligations under this Agreement would cause Cytiva irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Cytiva will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- For purposes of this Agreement, (a) the words "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
- The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Choice of Law.
For purposes of this Agreement, the following terms have the following meanings:
“Access Credentials" means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use the Services.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate(s)” means any entity that directly or indirectly controls, is controlled by or is under common control with a party, for so long as such control continues. For the purposes of this definition, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the controlled entity, whether through the ownership of voting securities, partnership, other ownership interests, by contract or otherwise.
"Authorized Users" means the employees or other persons affiliated with Customer and authorized by you to use the Services pursuant to the terms and conditions of this Agreement and for whom access to the Services has been purchased under an applicable Order Form.
"Customer" or “you” or “your” means the Person identified as the customer on the Order Form.
"Customer Data" means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. For the avoidance of doubt, Customer Data does not include Feedback.
"Customer Systems" means the Customer information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), internet usage, and networks, whether operated directly by Customer or through the use of third-party services.
"Cytiva," “we,” or “us” means the Cytiva entity specified in the applicable Product Specific Terms.
"Cytiva Materials" means the Specifications, Documentation, and Cytiva Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Cytiva or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or Cytiva Systems. For the avoidance of doubt, Cytiva Materials include Feedback.
"Cytiva Personnel" means all individuals involved in the performance of Services as employees, agents, or independent contractors of Cytiva or any subcontractor.
"Cytiva Systems" means the information technology infrastructure used by or on behalf of Cytiva in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Cytiva or through the use of third-party services.
"Disabling Device" means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Cytiva or its designee to disable your or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Cytiva or its designee.
"Documentation" means user manuals, operation instructions, or other materials provided by Cytiva, in printed, electronic, or other form, describing the functionality, components, features, or requirements of the Services or Cytiva Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
"Feedback" means suggestions, ideas, recommendations, enhancement requests, corrections, improvements, modifications, error identifications or data and information related to your use of the Services that is used by Cytiva in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services, and any improvements, updates, modifications, or enhancements made to the Services made in the course of or as a result of the same.
"Fees" means the fees, excluding all taxes thereon, paid or required to be paid by you for the Services.
"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Cytiva Systems as intended by this Agreement. Harmful Code does not include any Disabling Device.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to (i) inventions and know-how, whether or not patentable; (ii) patents and patent applications; (iii) trademarks, service marks, trade dress, logos, internet domain names and trade names, and all goodwill associated therewith; (iv) copyrights and related rights; (v) computer software, data, databases, files and documentation and other materials related thereto; (vi) trade secrets and confidential, technical and business information; (vii) all similar rights provided by bilateral or international treaties or conventions; (viii) all rights to sue or recover and retain damages and costs and attorney’s fees for past, present and future infringement or misappropriation of any of the foregoing, and (ix) and all similar or equivalent rights or forms of protection, in any part of the world.
"Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Order Form” means any final written purchase order, quote, order acknowledgement or other form filled out and submitted and executed by or on behalf of Customer (such submission or execution may be online or through other electronic means), and accepted by or on behalf of Cytiva, for Customer’s purchase of the Services (and excluding any general terms and conditions supplied by you). The Order Form shall identify the Subscription Services and/or Support Services ordered by you, the quantities and term thereof, fees payable (unless ordered through a distributor), and applicable Customer information.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. "Processing" and "Processed" have correlative meanings.
“Product Specific Terms” means the additional terms and conditions which apply to certain products and services offered by Cytiva, and located here (and any successor or related locations designated by Cytiva), as may be updated by us from time to time.
"Specifications" means the specifications for the Services.
"Third Party" means any Person other than you or Cytiva.
"Third Party Materials" means materials and information, in any form or medium, including any products, services, websites, links, content, material, integrations, bots or applications from open-source or other software, documents, data, specifications, equipment, or components, that are relating to, incorporated in, or otherwise used together with the Services, that are not proprietary to Cytiva, whether or not provided by you or Cytiva.
The Services may allow you to access, interact with, share, or otherwise use Customer Data with Third Party Materials. Additional terms or policies may apply to the Third Party Materials. You may be directed to accept such additional terms and policies before accessing Third Party Materials. Any additional terms and policies do not modify the terms and conditions of this Agreement. Cytiva does not license any Intellectual Property Rights to you as part of any Third Party Materials. You agree to assume all risk and liability arising from (a) your use of Third Party Materials or (b) any use of Customer Data in connection with Third Party Materials. Cytiva is not responsible or liable for any access to or use of Customer Data, or for the security or privacy practices, relating to Third Party Materials. CYTIVA, ON ITS OWN BEHALF, AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE REPRESENTATIVES AND SERVICE PROVIDERS, DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY MATERIALS OR FOR THE ACTS OR OMISSIONS OF ANY PROVIDERS OF THIRD PARTY MATERIALS.
Cytiva employs security measures designed to protect and secure the Services, Customer Data, and the Cytiva Materials and to prevent data breach. For more information about Cytiva’s information security procedures click here.
You shall indemnify, defend, and hold harmless Cytiva, its Affiliates, representatives and service providers (each, a "Cytiva Indemnitee") from and against any and all Losses incurred by such Cytiva Indemnitee resulting from any Action by a Third Party (other than an Affiliate of a Cytiva Indemnitee) that arise out of or result from, or are alleged to arise out of or result from: (a) Customer Data, including any Processing of Customer Data by or on behalf of Cytiva in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of you or any Authorized User, including Cytiva's compliance with any specifications or directions provided by or on behalf of you or any Authorized User to the extent prepared without any contribution by Cytiva; (c) allegation of facts that, if true, would constitute your breach of any of your representations, warranties, covenants, or obligations under this Agreement; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by you, any Authorized User, or any Third Party on behalf of you or any Authorized User, in connection with this Agreement.
The Services and the Cytiva Materials may be subject to U.S. export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly, or indirectly, export, re-export, or release the Services and the Cytiva Materials to, or make the Services and the Cytiva Materials accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services and the Cytiva Materials available outside the U.S.
The Services and the Cytiva Materials are deemed commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Customer is the U.S. Government or any contractor therefor, Customer shall receive only those rights with respect to the Services and the Cytiva Materials as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.