Scilife Inc.
US Scilife Terms and Conditions

These Terms and Conditions (“Terms”) are by and between Scilife Inc., a Delaware corporation with offices located at 228 E 45TH ST, RM 9E, NEW YORK, NY 10017, USA (“Provider”), and Customer. Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.

The Parties agree as follows:

1. Definitions

• “Account” means an account enabling a person to access and use the Hosted Services including both administrator accounts and user accounts.
• “Agreement” means the agreement, consisting of (i) the Order Form, (ii) these Terms, and (iii) all annexes, and any amendments to this Agreement from time to time.
• “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
• “Fees” means the amount agreed upon between Provider and Customer in the Commercial Schedule and/or Order Form.
• “Order Form” means the order form of the Agreement signed by Customer.
• “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, pricing, and information with respect to which the disclosing Party has contractual or other confidentiality obligations, and including, (a) in each case whether or not marked or described as ‘confidential’; or due to its nature and content, it is reasonable to be treated as confidential by the parties, whether expressly marked as confidential or not, or
  (b) in the event of Customer Confidential Information, the Customer Data; or
  (c) in the event of Provider Confidential Information, any confidential information related to the Hosted Services.
• “Customer” means Party identified as Customer in the Order Form.
• “Customer Data” means all data, works and materials uploaded to or stored on the Platform by Customer; transmitted by the Platform due to Customer; supplied by Customer to Provider for uploading to, transmission by, or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by Customer (excluding for the avoidance of doubt any Scilife Content).
• “Documentation” means the documentation for the Hosted Services produced by Provider and delivered or made available by Provider to Customer.
• “Effective Date” means the date this Agreement enters into force as specified in the Commercial Schedule and/or Order Form.
• “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including but not limited to failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, pandemics, explosions, acts of God, fires, floods, riots, terrorist attacks and wars);
• “Hosted Services” means Scilife, which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement.
• “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights, including but not limited to copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs.
• “Maintenance Services” means the general maintenance of the Platform and Hosted Services.
• “Online Service Desk” means the online support system for Customers available at https://support.scilife.io.
• “Permitted Purpose” means the implementation and use of the SaaS as described under this Agreement for the business purpose of Customer.
• “Personal Data” has the meaning provided in the applicable data privacy laws and regulations.
• “Platform” means the platform managed by Provider to provide the Hosted Services, including the Scilife Application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which the Scilife Application, database, systems and server software is installed.
• “Platform as a Service” (“PaaS”) means the systems and infrastructure that are provided by Provider’s cloud service provider which Provider does not have physical access to.
• “Processing” has the meaning provided in the applicable data privacy laws and regulations.
• “Provider” means Scilife Inc.
• “Provider IP” means the Services, the Documentation, and any and all Intellectual Property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP does not include Customer Data.
• “Scilife Content” means content (e.g., templates) licensed by Provider to the Customer as part of the SaaS Service.
• “Scilife Application” means the software owned by Provider that is used to provide the SaaS Service.
• “Services” means any services that Provider provides to Customer, or has an obligation to provide to Customer under this Agreement.
• “SLA” means the service level agreement attached to these Terms.
• “Support Services” means support relating to the use of, and the identification and resolution of errors with, the Hosted Services, but shall not include providing training services.
• “Supported Web Browser” means the current release from time to time of Microsoft Edge, Microsoft Internet Explorer, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that Provider agrees in writing shall be supported.
• “Term” means a three (3) year period unless otherwise stated in the Order Form.
• “Upgrade” means an update of the Scilife Application to a newer version.
• “Written notice” means any form of written communication by paper, or electronic mail, except if provided otherwise in this Agreement, sent to the Party's address specified in this Agreement, or to the address that a Party has notified to be that Party's address for this purpose.

2. Hosted Services

• Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants to Customer a worldwide, non-exclusive, non-transferable right to access and use the Hosted Services by means of a Supported Web Browser for the Permitted Purpose of Customer in accordance with the Documentation during the Term.
• Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
• The rights granted by Provider to Customer pursuant to Clause 2.1 are subject to the following restrictions:
  • Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement.
  • Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivate works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that is fraudulent, harmful or violates any applicable law.
  • Hosted Services may only be used by Authorized Users, provided that Customer may change, add or remove a designated named user in accordance with the functionality available in the Scilife Application.
  • Hosted Services can be used by as many Authorized Users as necessary for Customer, provided that Customer may add or remove user licenses in accordance with the functionality available in the Scilife Application.
  • Customer shall not sub-license its right to access and use the Hosted Services.
  • Customer shall not permit any unauthorized person to access or use the Hosted Services.
  • Customer shall not make any alteration to the Platform or the Scilife Application.
• Provider will use commercially reasonable efforts to make the Platform available within the applicable Uptime as defined in Annex 1.
• Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise to Customer or any third-party any intellectual property rights or other right, title, or interest in or to the Provider’s IP.
• Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) this a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vender of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5.1(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liability, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
• Customer must comply with these Terms and must ensure that all persons using the Hosted Services, including Authorized Users and use through an administrator Account, comply with these Terms.
• Customer shall not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services, Platform, or impair the availability or accessibility of the Hosted Services.

3. Term and Termination

• The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, shall continue in effect in accordance with the Term provided in the Order Form. (the “Initial Term”). This Agreement will automatically renew for an additional one-year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 30 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
• In addition to any other express termination right set forth in this Agreement, Provider may terminate or suspend this Agreement at any time, and without incurring any liability to Customer, upon giving written notice at least 15 days to Customer if Customer:
  • becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
  • files or has failed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily to any proceedings under any domestic or foreign bankruptcy or insolvency law;
  • makes or seeks to make a general assignment for the benefit of its creditors;
  • applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
  • materially breaches this Agreement and such a breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after Provider provides Customer with written notice of such breach;
  • fails to pay any amount when due hereunder, and such failure continues more than 90 days after Provider’s delivery of written notice thereof; or
  • breaches any of its obligations under Section 2.3 or Section 6.
• Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer's obligations under Section 6, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. In addition, upon expiration or earlier termination of this Agreement, except as expressly provided in this Agreement, Provider shall have no performance obligations and Customer shall have no access to the Hosted Services and Customer shall immediately cease use of the Services.
• Provider may suspend the Services, including the Support Services if any amount due under this Agreement by Customer is overdue and Provider provides Customer at least 30 days written notice relating to such overdue amount that it intends to suspend the Services.
• This Section 3.5 and Sections 1, 4, 5, 6, 8, 9, 10, 11, 12, and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement unless by their nature they should be interpreted and deemed to survive expiration or termination.

4. Intellectual Property

• Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
• Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from Provider to Customer, or from Customer to Provider.
• Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer.
• Customer warrants to Provider that the Customer Data: (i) does not infringe the Intellectual Property Rights or other legal rights of any third-party; (ii) does not violate any applicable law, statute or regulation; and (iii) shall be transferred to Provider in accordance with applicable data privacy laws.
• Provider shall provide a back-up copy of the Customer Data through virtual database servers with redundancy and automated backups. Customer shall have its own separate database where its data is stored. A “Disaster Recovery Plan” shall be provided to Customer in a reasonable period of time upon written request.
• In case of expiration or termination of this Agreement, Provider will no longer store the Customer Data effective the date of such expiration or termination of the Agreement. Customer Data shall be stored by Provider thereafter only for the purpose of transferring such data to the Customer.
• Provider shall provide a one-time, supplemental service for the transfer of the Customer Data from the Platform to Customer free of additional charge in acceptable format (.xlsx files) as per Scilife's standard export process, within a reasonable period of time after the termination of this Agreement. Customer may procure additional exports which can be delivered by Provider at an additional cost. Following such transfer, Customer shall have fifteen (15) days to provide written notice that the transfer was successful or that it remains incomplete and further steps are required. Provider shall delete all Customer Data upon the earlier of (i) written confirmation of a successful transfer of Customer Data by Customer or (ii) the expiration of the thirty (30)-day time period without notice from the Customer relating to the transfer of the Customer Data. Under no circumstances shall Provider be liable to Customer for any losses or damages caused by the loss or damage of Customer Data arising from the transfer of Customer Data.

5. Fees and Payment

• Customer shall pay Provider the Fees as set forth in the Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars. All invoices for Fees under this Agreement are due and payable within thirty (30) days of the invoice date. All amounts paid are non-refundable. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on past due amounts at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 45 days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
• All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
• Provider may modify the Fees once per year by giving Customer written notice of the modified fees at latest sixty (60) days before the end of the Term. Following such a notice, Customer may terminate this Agreement in accordance with Section 3.
• Customer shall receive notice from Provider once the onboarding process has been finalized. Such notice shall mark the end of the onboarding phase. Any additional activities requested from Provider thereafter may incur additional fees and costs. Such fees and costs shall be mutually agreed upon by the parties.
• The cloud infrastructure costs are included in the user pricing, however, the cloud storage costs, which consist of database data and file storage, are billed separately according to the amount of data stored by Customer through the Scilife Application and the price per Gigabyte mentioned in the Order Form.
• Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5.1. Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds 50% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two years after the termination or expiration of this Agreement.

6. Confidentiality

• From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is/and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
• The Parties’ confidentiality obligations shall survive termination of this Agreement. Upon termination of this Agreement or upon a disclosing Party’s written request, the receiving Party shall promptly return to the disclosing Party all Confidential Information of the disclosing Party in its custody, possession, or control.
  
  

7. Data Protection

• Customer warrants to Provider that it has the legal right to disclose all Personal Data that it discloses to Provider under or in connection with this Agreement, and that the processing of such Personal Data by Provider for the Permitted Purpose will not breach any applicable data protection or data privacy laws and regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with applicable law relating to data protection and data privacy. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.
• To the extent that Provider processes Personal Data disclosed by Customer, Provider warrants that:
  • it will only process Personal Data to satisfy its obligations under this Agreement;
  • it will act only on instructions from Customer in relation to the processing of Personal Data;
  • it has in place appropriate security measures (technical and organizational) which prohibit the unlawful or unauthorized processing of Personal Data and which help prevent the loss or corruption of Personal Data;
  • it will not transfer or permit the transfer of Personal Data outside the United States in accordance with applicable law;
  • it will process Personal Data in accordance with applicable law.

8. Warranty and Warranty Disclaimer

• Provider warrants to Customer that:
  • it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
  • it will comply with applicable law;
  • the Hosted Services will be provided with reasonable care and skill;
  • Provider will take reasonable efforts to prevent the Platform from being infected with viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs;
  • Provider will take reasonable efforts to provide the Hosted Services in accordance with the SLA;
  • the Platform will incorporate security features reflecting the requirements of good industry practice; and
  • Provider warrants to Customer that the Hosted Services, when used by Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any third-party.

• If Provider reasonably determines, or any third party alleges, that the use of the Hosted Services (excluding for the avoidance of doubt any Customer Data) by Customer in accordance with this Agreement infringes such third-party’s Intellectual Property Rights, Provider will, in its sole discretion: (i) procure a license that will protect Customer against any claims at no cost to Customer; (ii) replace the Hosted Service(s) with a non-infringing Hosted Service(s); or (iii) if it deems such remedies not practicable, Provider may terminate this Agreement without liability, provided that in case of such termination, Customer will receive a pro-rata refund of the license fees prepaid for use of the Hosted Services not yet furnished as of the termination date. THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDEIS AND PROVIDER’S SOLE LIABILITY AND OBLIGATIONS FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
• Customer warrants to Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
• Customer acknowledges that complex software is never free from defects, errors, bugs, or security vulnerabilities and, subject to the other provisions of this Agreement, Provider provides no warranty or representation that the Hosted Services will be wholly free from such defects, errors, bugs, or vulnerabilities.
• Customer acknowledges that Provider will not provide any legal, financial, accounting, or tax advice under this Agreement or in relation to the Hosted Services. Except to the extent expressly provided in this Agreement, Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by Customer will not give rise to legal liability for Customer or any other person.
• Provider will not be responsible for the accuracy, reliability, or legality of any information provided by (or relying on) any third-party source provided or used by Customer. Provider shall not be responsible, either directly or indirectly, for any loss or damage incurred resulting from or in connection with the use of or reliance on any such third-party content.
• EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 8, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

9. Limitations of Liability

IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10. Indemnification

Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any and all losses, damages, liabilities, costs (including attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

11. Force Majeure 

In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by a Force Majeure Event. A Party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay of in the performance of its obligations under this Agreement shall: (a) promptly provide written notice to the other Party; and (b) inform the other Party of the expected time period for which it estimates that the failure or delay in the performance of its obligations will continue. If a Party’s performance of its obligations under this Agreement is affected by a Force Majeure Event, it shall take reasonable steps to mitigate the effects of the Force Majeure Event.

12. Notices

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party after giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section. Provider's email address for Notices under this Section 12 shall be: invoice@scilife.io. Each Party may update its contact details after giving written notice of the update to the other Party.

13. Marketing Rights

13.1

Use of Customer’s Name and Logo. Customer grants Provider a non-exclusive, worldwide, royalty-free, and revocable license to use Customer’s name, logo, and general description of its use of the Platform in Provider’s marketing, promotional, and sales materials. This includes, but is not limited to, Provider’s website, case studies, press releases, presentations, social media, and participation in commercial fairs, trade shows, and industry conventions.

13.2

Limitations and Confidentiality. Provider shall not disclose any Confidential Information of the Customer under this clause. Any marketing use of Customer’s details shall be strictly limited to publicly available information or as explicitly approved by the Customer.

13.3

Opt-Out Right. Customer may opt out of the marketing use of its name and logo at any time by providing written notice to Provider. Upon receipt of such notice, Provider shall cease further use of Customer’s name and logo in new marketing materials within a reasonable timeframe. 

14. Miscellaneous

1. Notwithstanding any other provision of this Agreement, Customer acknowledges and agrees that Provider may subcontract to a reputable third-party hosting business the hosting of the Platform and the provision of services relating to the development, support, and maintenance of the Platform. Provider shall remain responsible to Customer for the performance of any subcontracted obligations.
2. Non-Solicitation. Neither Party nor any of its representatives shall, directly or indirectly, without written consent of the other Party, for the duration of this Agreement and for a period of twelve (12) months from the date this Agreement expires or terminates: (a) solicit for hire, employment, or engagement, and/or hire, employ, or engage any individual employed by or contracted with the other Party; (b) induce or attempt to induce any individual employed by the other Party to terminate his or her employment with the other Party; or (c) in any way interfere with the relationship between a Party and any individual employed by, or any entity contracted with, that Party.
3. Amendment, Modification, Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
4. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
5. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
6. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related annexes, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related annexes, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the annexes to this Agreement as of the Effective Date; (iii) third, the Order Form; and (iv) fourth, any other documents incorporated herein by reference.
7. Governing Law and Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, notwithstanding conflict of law principles, and without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods. All disputes and controversies arising out of or relating to this Agreement, or the relationship of the Parties, shall be finally and bindingly resolved by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitration shall be administered by a single arbitrator. The place of arbitration shall be New York, New York. The language of the arbitration shall be English. Any award, verdict or settlement issued under such arbitration may be entered by any party for order of enforcement by any court of competent jurisdiction. The arbitration shall be confidential. ANY CAUSE OF ACTION AGAINST PROVIDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
8. Export Regulation. Customer 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), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
9. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party 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 or arbitral tribunal, 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.

15. Amendments to Terms and Conditions

Provider reserves the right to amend, update, or modify these Terms and Conditions at any time. Any such modifications shall take effect thirty (30) days after publication on Provider’s website or upon written notification to the Customer, whichever occurs first.

Provider shall notify Customer of any material changes to these Terms and Conditions via email or through the Platform. Customer’s continued use of the Platform after the effective date of such changes constitutes acceptance of the updated Terms and Conditions.

If Customer does not agree with the updated Terms and Conditions, Customer shall inform Provider within 2 weeks after Provider’s change notification. In the absence of agreement between Parties on acceptable changes, Customer may terminate the Agreement with 90 days written notice to Provider. In such case, the Agreement shall continue to apply under the Terms and Conditions in effect prior to the amendment until the end of the current contractual term.

ANNEX 1

Service Level Agreement (“SLA”)

“Business Days” means Monday through Friday, US and public holidays excluded.

“Business Hours” means 9:00-17:00 EST on Business Days.

“Error” means a defect, or combination of defects, in the Hosted Services that result in a failure of the Hosted Services to function in accordance with the specifications.

“Uptime” means the Hosted Services are operational and available to communicate with the Internet in Provider (or its cloud service provider’s) server location.

“Target Service Level” means the target percentage of Incidents that meet or exceed the Service Levels as set out in paragraph

1.

Support level. During the Term, Provider will provide support via our Online Service Desk during Business Hours, with following response times:

Provider does not guarantee any resolution times. Provider will use best efforts to resolve any issues, subject to compliance by Customer of the Agreement.

2.
Remedial Maintenance. Provider shall use its reasonable efforts to investigate and rectify an Error reported to Provider by Customer hereunder in accordance with the applicable Priority Levels and Response Times set forth below, provided that (i) such Response Times shall apply only for as long as Customer is using the Hosted Services in accordance with the documentation, (ii) Provider shall have no obligation to rectify an Error not caused by the Hosted Services, (iii) the Error can be reproduced, (iv) any support activity which is not related to a defined Error (e.g. (including but limited to) a suggestion or enquiry) shall also be deemed not to have a Priority Level assigned to it. Actual Response Times are dependent on the level of assistance provided by Customer and shall be calculated from the moment Provider is provided with the necessary diagnostic information.

3.
Customer dependencies. Customer shall (i) make all reasonable efforts to determine whether an Error is an error in the Hosted Services or is due wholly or partly to the use of the Hosted Services in a manner for which it was not designed, (ii) provide Provider with all relevant information when reporting an Error, including, without limitation, the name of the person reporting the Error, the date of the Error and a description of the Error and such other diagnostic information as may be agreed between the Parties, (iii) provide all reasonable assistance to Provider necessary to reproduce and demonstrate any Error, (iv) supply Provider with all documentation, test cases, sample data and anything else reasonably required by Provider to investigate and rectify the reported Error, (v) notify Provider as soon as possible after the occurrence of any Error that requires support in accordance with what is set out in in this SLA.

5.
Out-of-scope. Any service that is performed under this SLA by Provider but which is not listed under section 2, shall be considered as out of scope services (i.e., not included in the Maintenance Service) and shall be charged to the Customer on a time and material basis at the then applicable Provider rates or such other rates as may be agreed between the Parties. Such Professional Services not included in the Maintenance Service include (non-exhaustive list):

• advice on how to rectify problems in areas other than the Hosted Services (such as but not limited to the modifications and/or enhancements made to the Hosted Services) which have led to the Hosted Services being unable to be used;
• changed specification, request ‘or change, and impact analysis;
• the provision, upon Customer’s request, of documentation relating to the work performed by Provider in respect of Professional Services;
• advice on how to rectify Errors that are attributable to (i) accidents, misuse, negligence or failure of Customer to follow instructions for proper use of the Hosted Services, (iii) failure by the Hosted Services to comply with environmental specifications, (iv) improper configuration of the Hosted Services other than an improper configuration performed in accordance with Provider’s specifications.

6.

Maintenance. Provider will give two (2) month notice per e-mail to Customer prior to the upgrade of Scilife to a newer major or medium version. With this notice, Provider will include a list with all changes, new functions, and the updated validation package for this new version of Scilife. When Customer receives this notification, Provider will install the newer version of Scilife in the “Validation Environment” and Customer will have sixty (60) days to analyze the new documentation provided by the Provider and take the necessary steps for its own software validation. During these sixty (60) days, Customer can finish testing and validation of the new version of Scilife in the “Validation” environment and at the end of the testing period, the new version is pushed to the "Test" and “Production” environment. If Provider must resolve a bug categorized as emergency or high severity urgently and minor release, Provider may choose to implement the necessary changes immediately in the “Production” environment and notify Customer of this change afterward.