D3 ASSAY DESIGN PORTAL AGREEMENT
IMPORTANT - READ CAREFULLY - THIS AGREEMENT BINDS YOUR EMPLOYER AND YOU INDIVIDUALLY
This Fluidigm Assay Design Portal Agreement ("Portal Agreement") is a legal agreement that governs the use of the Fluidigm Assay Design Portal.
This Portal Agreement is between the following parties:
1. Fluidigm Corporation (“Fluidigm”) having a place of business at
2 Tower Place, Suite 2000
South San Francisco, CA 94080 USA;
2. The user of the Fluidigm Assay Design Portal, individually (“the User”); and
3. The entity for which the User works (“the Customer”).
In this Portal Agreement, “You” and “Your” shall mean the User and the Customer unless specified otherwise. If the User is using the Assay Design Portal on his or her own behalf as an individual, both terms (“the User” and “the Customer”) shall refer to the same natural person.
The terms of this Portal Agreement are referenced by and incorporated in the Fluidigm Corporation Assay Design Sales Terms and Conditions. By placing an order through the Assay Design Portal, the User and Customer are agreeing to the terms of this Portal Agreement.
You may use the Fluidigm Assay Design Portal only after accepting the terms of this Portal Agreement. By electronically accepting this Portal Agreement on a computer terminal, You agree to be bound by all of the terms and conditions of this Portal Agreement individually. If You do not agree with all of the terms and conditions of this Portal Agreement, You must decline the terms and conditions and You will not be able or permitted to use the Fluidigm Assay Design Portal.
1.1 The following terms shall have the meanings defined below:
1.2 “Assay Design” shall mean the sequence of primers and probes designed by Fluidigm based on the data You provide.
1.3 “Assay Design Portal” shall mean the internet-based services and features Fluidigm makes available to Customer or User, including through (a) websites at the top-level domain d3.fluidigm.com (b) any other Fluidigm branded or co-branded websites (including sub-domains, international versions, widgets, and mobile versions) and (c) other networks, media, and software (such as mobile applications) now existing or later developed.
1.4 “Content” shall mean any and all web pages, Assay Designs, documents, data, and other information stored in or available for download from the Assay Design Portal.
1.5 “Data Intellectual Property” shall mean all Intellectual Property Rights necessary to upload data provided by User or Customer, including genetic sequence data, to the Assay Design Portal, all Intellectual Property Rights necessary to make or have made any assays ordered using the Assay Design Portal, and all Intellectual Property Rights necessary to process the data uploaded to the Assay Design Portal.
1.6 “Fluidigm Copyrights” shall mean the copyrights, moral rights, and similar rights related to original works of authorship owned or licensed by Fluidigm, including: text; dramatic or non-dramatic literary works; photos; drawings; works of visual arts; works of the performing arts; serials; phone records; sound recordings; software (including source and object code); mask works; and any other kind of copyrightable work.
1.7 “Fluidigm Marks” shall mean the trademarks, service marks, design marks, logos, trade names, tag lines, and other source indicators owned or licensed by Fluidigm, including (a) those listed on Exhibit A to this Portal Agreement and (b) any others designated from time to time by Fluidigm.
1.8 “Intellectual Property Rights” shall mean any patents (including utility models and rights to patent an invention), design patents, designs (whether or not capable of registration), chip topography rights, mask works and other like protection, copyrights, trademarks and any other forms of like protection as well as any applications, divisions, continuations, renewals, re-exams and reissues thereof worldwide as well as any trade secrets and other information or know-how.
SCOPE OF THIS PORTAL AGREEMENT
2.1 Notwithstanding anything in this Portal Agreement to the contrary, in the event of any inconsistency between any Assay Design Sales Terms and Conditions and this Portal Agreement, the terms of this Portal Agreement control.
TERMS AND CONDITIONS OF ACCESS TO PORTAL
3.1 Grant of Access. Subject to the terms of this Portal Agreement, Fluidigm grants the User and the Customer access to the Assay Design Portal.
3.1.1 The grant of access to the Assay Design Portal and the Content is personal to the User and to the Customer and made solely for the purpose of assisting the User and the Customer in developing assays and placing requests for sales quotes for those assays. Any other use by the User or the Customer of Assay Designs or Content is prohibited. By way of example and not limitation, re-sale of Assay Designs or Content to third parties or re-use of Assay Designs or Content for commercial purposes is prohibited.
3.1.2 Usernames and passwords for the Assay Design Portal are personal and may only be used by the User identified by the credentials. Multiple users of the portal working for the Customer must each have a username and password to access the Assay Design Portal. If one of those employees leaves the employment of the Customer, the Customer shall immediately notify Fluidigm, which will deactivate the username and password for that user.
3.1.3 The User’s and Customer’s access to the Assay Design Portal and the Content may be terminated at any time by Fluidigm within its sole discretion without notice to Customer or User. The Content in the Assay Design Portal is subject to change by Fluidigm within its sole discretion without notice to Customer or User.
3.2 Terms of Access:
3.2.1 Neither Customer nor User shall disrupt or interfere with the security of the Assay Design Portal, or the servers or networks connected to or accessible through the Assay Design Portal. Neither Customer nor User shall attempt to change or alter the Assay Design Portal or the Content except as expressly permitted elsewhere in this Portal Agreement. Neither Customer nor User shall attempt to obtain unauthorized access to the Assay Design Portal or to portions of the Assay Design Portal that are restricted from general access. Neither Customer nor User shall attempt to reverse engineer, deconstruct, disassemble, or decompile any software or technology underlying or provided through the Assay Design Portal.
3.2.2 Customer and User shall provide accurate, up-to-date, information in the profile section of Portal. Neither Customer nor User shall provide any false information or attempt to create a profile for any other party.
3.2.3 Neither Customer nor User shall give access to the Assay Design Portal to, or share usernames or passwords with, any unauthorized person, or knowingly take any other action that might jeopardize the security of the Assay Design Portal. Customer and User shall treat Portal usernames and passwords with at least the same degree of care as Customer treats usernames and passwords used with its own systems and networks, but not less than reasonable care.
3.2.4 Customer and User shall abide by any terms of service that may be posted by Fluidigm or its agents in the Assay Design Portal from time to time.
3.2.5 You may publish Assay Designs in connection with the non-commercial publication of a scientific article, provided that You acknowledge your use of the Assay Design Portal in any such publication.
3.3.1 Fluidigm conducts periodic security reviews of the Assay Design Portal to limit security threats and prevent unauthorized access to the portal, and works with commercially reasonable diligence to close any discovered security threats.
3.3.2 Access to the Assay Design Portal is controlled by username and password, and passwords can be reset via e-mail. Furthermore, usernames, passwords, and other proprietary information may be sent in clear text (without SSL or TLS) over the open internet between a client computer and Fluidigm servers. Data relating to the Assay Design Portal may be stored in unencrypted form on Fluidigm servers.
3.3.3 Customer and User agree not to submit or upload any information of a sensitivity or confidentiality that requires stronger security measures than those recited above. Furthermore, Customer and User agree that they will not suffer irreparable harm if a third party were to gain access to any Customer or User information from the Assay Design Portal.
3.3.4 Customer and User agree to keep copies of all data uploaded and submitted to the Fluidigm Assay Design Portal.
3.3.5 Each nucleic acid sequence or target gene submitted or uploaded by You through the Assay Design Portal that is intended to be detected by use of a custom assay or to be included in primers and probes or other oligonucleotide assays manufactured by Fluidigm and sold to You, and the facts that You placed orders for assays containing or intended to detect such sequence and that You ordered oligonucleotide assays from Fluidigm containing or intending to detect such sequence shall be “Customer Confidential Information.” Fluidigm agrees that for five (5) years after the disclosure to Fluidigm of Customer Confidential Information, Fluidigm shall not disclose such Customer Confidential Information to any third party and will use at least the same degree of care as it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care, to prevent the disclosure of such Customer Confidential Information to any third party. This undertaking of confidentiality shall not apply to, and Fluidigm shall have no obligations under this paragraph with respect to (a) any Customer Confidential Information that is or becomes a matter of public knowledge or part of the public domain through no fault of Fluidigm; (b) any Customer Confidential Information that is disclosed by Fluidigm with Customer’s prior written approval; or (c) any information shared by You to a person not under a duty of confidentiality to You through. the sharing functionality of the Assay Design Portal or otherwise.. Notwithstanding any provision of this Portal Agreement, Fluidigm may disclose Confidential Information of Customer to the extent required to comply with governmental regulations and other applicable laws or to respond to subpoena or other compulsory legal process.
3.4 Limitation on Liability.
3.4.1 Fluidigm does not provide any warranty or guarantee as to the accuracy, completeness, timeliness, or suitability of the Content for any particular purpose.
3.4.2 IN NO EVENT SHALL FLUIDIGM BE LIABLE TO CUSTOMER OR USER, ANY CUSTOMER OR ANY OTHER THIRD PARTY IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY, CONSEQUENTIAL, INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, LOST SALES, LOST REVENUE OR LOSS OF USE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF FLUIDIGM HAS BEEN INFORMED OF OR IS AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE, ARISING OUT OF OR RELATING TO CUSTOMER OR USER’S USE OF THE ASSAY DESIGN PORTAL OR THE CONTENT. IN NO EVENT SHALL FLUIDIGM’S LIABILITY EXCEED THE AMOUNT PAID BY CUSTOMER TO FLUIDIGM IN THE PRIOR TWELVE (12) MONTHS. IN THE EVENT OF ANY DATA LOSS OR DATA BREACH RESULTING IN DISCLOSURE OF USER INFORMATION, CUSTOMER INFORMATION, OR CUSTOMER CONFIDENTIAL INFORMATION TO THIRD PARTIES, FLUIDIGM SHALL NOT BE LIABLE TO CUSTOMER OR USER FOR MORE THAN THE AGGREGATE PRICE OF ORDERS PLACED THROUGH THE ASSAY DESIGN PORTAL DURING THE PREVIOUS 12 MONTHS, OR IF SUCH AGGREGATE PRICE IS ZERO, THEN NO MORE THAN $5,000 (FIVE THOUSAND UNITED STATES DOLLARS), EVEN WHEN SUCH DATA LOSS OR DATA BREACH IS DUE TO FLUIDIGM’S NEGLIGENT OR RECKLESS CONDUCT.
3.4.3 The Assay Design Portal or the Content may from time to time include links to other websites. These links are provided for convenience only and do not signify that Fluidigm endorses the website(s) or that the site owner endorses Fluidigm. Fluidigm has no responsibility for the content of the linked website(s).
INTELLECTUAL PROPERTY RIGHTS
4.1 Warranty by Customer and User. Customer and User hereby warrant to Fluidigm that they have all necessary rights, including Intellectual Property Rights, to use and upload any data uploaded to the Assay Design Portal. Furthermore, Customer and User hereby warrant to Fluidigm that they have the necessary rights, including Intellectual Property Rights, to make and have made any assays ordered using the Assay Design Portal, including sufficient rights to grant the rights granted under Article 4.3 below to Fluidigm.
4.2 Indemnity by Customer and User. Customer and User shall fully indemnify and hold Fluidigm harmless for any damage caused to Fluidigm by a breach of Article 4.1 above, including paying legal fees and any monetary award associated with a patent infringement lawsuit or any other lawsuit.
4.3 License Grant to Fluidigm. Customer and User hereby grant to Fluidigm a non-exclusive royalty free fully paid up license with the right to sublicense to all Data Intellectual Property to make, use, sell, offer to sell, import, export and otherwise transfer any product and to practice any method or process and use any product involved in the manufacture thereof throughout the world.
4.4 No License Granted by Fluidigm. The Fluidigm Marks and Fluidigm Copyrights are Fluidigm property, and no license or permission is given to User or Customer to use the Fluidigm Marks or Fluidigm Copyrights other than to the limited extent necessary for User or Customer to exercise the grant of access to the Assay Design Portal set forth in Section 3.1 of this Portal Agreement. Other than use necessarily attendant to use of the Assay Design Portal to place requests for sales quotes for assays, no permission is granted to use the Fluidigm Marks or Fluidigm Copyrights.
USE OF ASSAY DESIGN PORTAL
5.1 The Assay Design Portal may be used to design assays and to place requests for sales quotes to Fluidigm. No response generated by or communicated via the Assay Design Portal shall constitute a binding contract, warranty, or statement that Fluidigm can or will make an assay. Furthermore, no response generated by or communicated via the Assay Design Portal constitutes an offer to make or sell any particular assay. Only a formal offer submitted by a Fluidigm sales representative shall comprise an offer to make or sell an assay.
Term and termination
6.1 Term. This Portal Agreement shall be effective with respect to each party from acceptance in accordance with Article 6.2 below, and remain in force until terminated pursuant to this Portal Agreement.
6.2 Acceptance. The User, individually, shall be deemed to have irrevocably accepted the terms of this Portal Agreement by indicating agreement on the Assay Design Portal website or by using the Assay Design Portal website. The Customer shall be deemed to have irrevocably accepted the this Portal Agreement when agreeing to this software license by operation of another agreement and/or when instructing a User to use the Assay Design Portal in any way, or when a user with authority to bind Customer uses the Assay Design Portal in any way.
6.3 Termination by Fluidigm. Fluidigm may terminate this Portal Agreement with immediate effect without providing notice to either User or Customer. Such termination may include the immediate suspension of access to the Assay Design Portal for User and/or Customer.
6.4 Termination by User or Customer. This Portal Agreement shall terminate thirty (30) days after notice of such termination is received by Fluidigm.
6.5 Effect of Expiration and Termination. Upon expiration of the Portal Agreement, or in the event of termination by either party for whatever reason, Customer and User shall:
6.5.1 Cease all use of the Assay Design Portal and the Content;
6.5.2 Cease all use of the Assay Design Portal username and password, and delete or destroy all copies of same;
6.5.3 Take such other steps as may be reasonably necessary to stop use of the information and materials provided to Customer or User pursuant to this Portal Agreement.
6.5.4 The provisions of Articles 1 and 4 and of Sections 3.2.1, 3.2.3, 3.2.4, 3.4, 7.3, and 7.4 shall survive the expiration or termination of this Portal Agreement.
7.1 Notices. Any notice required or permitted hereunder shall be in English, in writing and shall be deemed to be properly given upon the earlier of (i) actual receipt by the addressee (including facsimile or e-mail) or (ii) five (5) business days after deposit in the mail, postage prepaid, when mailed by registered or certified airmail, return receipt requested, or (iii) two (2) business days after being sent via private industry courier to a party to such address as it may designate in a writing. Notices to Fluidigm shall be to the attention of the Legal Department and sent by registered mail at 2 Tower Place, Suite 2000, South San Francisco 94080. An electronic copy of the notice may also be sent via email to firstname.lastname@example.org and email@example.com. Notices to You shall be sent to the address You provide when You register to use the Assay Design Portal.
7.2 Assignment. Except as otherwise expressly provided under this Portal Agreement, neither this Portal Agreement nor any right or obligation hereunder may be assigned or otherwise transferred (whether voluntarily, by operation of law or otherwise) by Customer or User without the prior express written consent of Fluidigm. Fluidigm may freely assign this Portal Agreement or any right or obligation hereunder. Any permitted assignee shall assume all obligations of its assignor under this Portal Agreement. Any purported assignment or transfer in violation of this Article 7.2 shall be void.
7.3 Arbitration. Fluidigm, Customer and User agree that any dispute or controversy arising out of or in connection with this Portal Agreement shall be finally settled by binding arbitration under the then current rules of the American Arbitration Association. The venue of such arbitration shall be in San Francisco, California. The arbitration shall be conducted by a single independent arbitrator appointed in accordance with such rules. The arbitrator shall determine what discovery will be permitted, based on the principle of limiting the cost and time which the parties must expend on discovery; provided, the arbitrator(s) shall permit such discovery as they deem necessary to achieve an equitable resolution of the dispute. The decision and/or award rendered by the arbitrator shall be written, final and non-appealable and may be entered in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award, punitive or exemplary damages against any party. The costs of any arbitration, including administrative fees and fees of the arbitrator, shall be shared equally by the parties, unless otherwise specified by the arbitrator. Each party shall bear the cost of its own attorneys’ and expert fees; provided that the arbitrator may in its discretion award to the prevailing party the costs and expenses incurred by the prevailing party in connection with the arbitration proceeding. This Article shall not be construed to prohibit either party from seeking preliminary or permanent injunctive relief, restraining orders, decrees of specific performance, or other equitable remedies, in any court of competent jurisdiction. For avoidance of doubt, any such equitable remedies shall be cumulative and not exclusive and are in addition to any other remedies which either party may have under this Portal Agreement or applicable law.
7.4 Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of California, USA, without regard to the conflicts of law principles, and shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby submit to the jurisdiction of, and venue in, the federal courts located in the Northern District of California and the state courts located in San Mateo County, California, USA.
7.5 Severability. Each party hereby acknowledges that it does not intend to violate any public policy, statutory or common laws, rules, regulations, treaty or decision of any government agency or executive body thereof of any country or community or association of countries. Should one or more provisions of this Portal Agreement be or become invalid, the parties shall substitute, by mutual consent, valid provisions for such invalid provisions which valid provisions in their economic effect are sufficiently similar to the invalid provisions that it can be reasonably assumed that the parties would have entered into this Portal Agreement with such provisions. In case such provisions cannot be agreed upon, the invalidity of one or several provisions of this Portal Agreement shall not affect the validity of this Portal Agreement as a whole, unless the invalid provisions are of such essential importance to this Portal Agreement that it is to be reasonably assumed that the parties would not have entered into this Portal Agreement without the invalid provisions.
7.6 Entire Agreement; Amendment. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof. All express or implied representations, agreements and understandings with respect to the subject matter hereof, either oral or written, heretofore made are expressly superseded by this Portal Agreement. This Agreement may be amended, or any term hereof modified, only by a written instrument duly executed by both parties.
7.7 Nature of Relationship. Nothing in this Portal Agreement is intended to, or shall be construed to, create a partnership, agency, joint venture, employment or similar relationship.
7.8 Waiver. The waiver by a party of any right hereunder, or the failure to perform or of a breach by the other party, shall not constitute a waiver of any other right hereunder or of any other breach or failure by the other party whether of a similar nature or otherwise.
7.9 Force Majeure. A party shall neither be held liable or responsible to the other party, nor be deemed to have defaulted under or breached this Portal Agreement, for failure or delay in fulfilling or performing any obligation under this Portal Agreement to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of such party including but not limited to fire, floods, embargoes, war, acts of war (whether war be declared or not), insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances, acts of God or acts, supplier delays, omissions or delays in acting by any governmental authority or the other party.
7.10 Authority. By clicking on the "I Agree" button or by otherwise accepting this Portal Agreement or using or accessing the Assay Design Portal, You represent and warrant that You are at least eighteen (18) years of age and have the authority and capacity to enter into this Portal Agreement on Your own behalf. If accepting this Portal Agreement on behalf of the Customer, You represent and warrant if acting on behalf of a corporation or other person or entity that You are authorized and empowered to bind such corporation, person or entity to all of the terms and conditions set forth in this Portal Agreement; and Your use of the Assay Design Portal and Documentation is not governed by any funding, grant or other terns or conditions, whether from the United States federal government or other institution, that would prevent You from complying with all of the terms of this Portal Agreement.