ECL Terms of Service Agreement

Updated: April 19, 2018

 

This Emerald Terms of Service Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Emerald Cloud Lab (“ECL”) (as defined below) and is an agreement between Emerald Cloud Lab, Inc. (“Emerald,” “we,” “us,” or “our”) and you or the entity you represent (“you”). This Agreement takes effect when you click an “I Accept” button or checkbox presented with these terms or, if earlier, when you use any portion of the ECL (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 15 for definitions of certain capitalized terms used in this Agreement.

 

1. Use of the ECL.

1.1. Generally. You may access and use the ECL in accordance with this Agreement. You will adhere to all ECL, rules, and regulations applicable to your use of the ECL, including the Third Party Service Terms and the other Policies as defined in Section 15. We have and will retain sole control over the operation, provision, maintenance, and management of the ECL. You have and will retain sole control over the operation, maintenance, management of, and all access to and use of, any Content, Samples, and systems you maintain external to the ECL.

1.2. Your Account. To access the ECL, you must create an ECL account associated with a valid e-mail address. You may only create one account per email address. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents). We and our affiliates are not responsible for any unauthorized access to your account, except to the extent caused by our breach of this Agreement. You will contact us immediately if you believe an unauthorized party may be using your account or if your account information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with Section 7.

1.3. Third Party Content. Third Party Content, such as papers and experimental protocols uploaded by other ECL Users, may be made available directly to you by other ECL Users. Because we may not have tested or screened the Third Party Content, your use of any Third Party Content is at your sole risk.

1.4. Research Only. The ECL is for scientific and technical research purposes only. It is not for use in clinical research or in the diagnosis and/or treatment of medical and physical conditions in humans (“Unauthorized Uses”). The ECL is not intended to be used for any diagnostic purpose and is not to be used as a substitute for professional medical advice. The ECL is not a CLIA registered laboratory and we make no representation or warranty as to compliance with 21 C.F.R. § 58. By submitting specimens to the ECL, you acknowledge that the results of the testing requested are only for the uses set forth above and further acknowledge that WE DISCLAIM ANY AND ALL LIABILITY AND/OR RESPONSIBILITY FOR USE OF RESULTS FOR UNAUTHORIZED USES.

1.5. HIPAA Compliance. You represent and warrant that you will not use the ECL, directly or indirectly, to create, receive, maintain or transmit any protected health information (“PHI”), as defined in the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”) and that your use of the ECL will not cause us to create, receive, maintain or transmit any PHI. You further represent and warranty that Your Content, Your Samples, and Your Experiments do not contain, use, describe, or disclose any PHI. You are solely responsible for ensuring that Your Content, Your Samples and Your Experiments comply with applicable law.

1.6. Right of Refusal. We reserve the right to cancel or refuse to run any Experiment for any reason, including if we determine the Experiment (i) poses a safety risk to the ECL, Emerald personnel, or any third party, (ii) poses a security risk to the ECL or any third party, (iii) may adversely impact the ECL, or the Samples or Content of any other ECL User, (iii) may subject us, our affiliates, or any third party to liability, (iv) may constitute criminal or otherwise illegal activities, (v) may be fraudulent, or (vi) engages in malicious behavior.

1.7. No Resale. You shall not resell the ECL, in whole or in part. This does not prevent you from making their Your Content available to your own end users.

 

2. Changes.

2.1. To the ECL. We may change, discontinue, or deprecate any aspect of the ECL (including the ECL as a whole) or change or remove features or functionality of the ECL from time to time. We will notify you of any material change to or discontinuation of the ECL.

2.2. To the Functions and APIs. The ECL is currently in beta testing and we may change, discontinue, or deprecate any functions or APIs for the ECL from time to time.

 

3. Security, Content Privacy, Access, and Safety.

3.1. ECL Security. Without limiting Section 10 or your obligations under Section 4, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access, or disclosure.

3.2. Content Privacy. Unless otherwise specified by you or another ECL User with the necessary permissions, Your Content stored in the ECL shall remain private and accessible only to you, except as described in Section 3.5. You have the option of designating some or all of Your Content as publicly accessible. By designating data as publicly accessible you agree to make that Content available by the terms and conditions of the Creative Commons Attribution 4.0 International Public License. You may change the accessibility of your Content at any time, however, changing the accessibility of a portion of Content from public to private will not waive the aforementioned Creative Commons license already granted to anyone who lawfully accessed that portion of Content while it was public. Any changes to the accessibility of Your Content only pertain to copies of Your Content stored within the ECL. We will make reasonable efforts to update the accessibility of Your Content within a reasonable period of time after your change request.

3.3. Interaction. The ECL may be used only by a human being via the ECL User Interface and Emerald provided APIs. Any attempt to use a robot, script, or organized group of humans to repeatedly access the ECL beyond its intended use could place an unacceptable load on the system, and is strictly forbidden.

If our monitoring systems detect an attempt to access the ECL in a forbidden way, to execute systematic patterns of queries to learn about the internal workings of the ECL, to index the ECL, or to do anything else that we feel jeopardizes the integrity of our system or access to it by other Users, we may terminate or suspend access to the ECL for specific Users or IP ranges.

If you wish to access the ECL in violation of the terms in this Section, please contact Emerald to explain your specific needs and Emerald will consider granting a limited exception. For example, we would entertain requests to utilize artificial intelligence algorithms to self-specify experiments, provided adequate safeguards are put in place to our satisfaction. However, Emerald reserves the right to deny any such request for any reason.

3.4. Right to Download. Subject to other limitations in this Agreement and the Third Party Service Terms, you shall always have the right to download the raw experimental data associated with your account during the Term, and, where applicable, as supplemented in Section 7.

3.5. Troubleshooting, System Integrity, Safety, and Improvements. We reserve the right to inspect Your Content, Your Samples, Your Experiments and any other instructions or materials submitted to or created in the ECL to ensure the safety, reliability, and performance of the ECL, as well to derive information to improve or augment any aspect of the ECL. For example, inspecting for Harmful Code in violation of Section 4.3, inspecting for dangerous material types in violation of Section 4.2, deriving usage statistics to optimize instrument availability, and updating statistical models. A further example is the inspection of Your Samples by us in the course of troubleshooting an Experiment to diagnose any potential errors.

3.6. Dangerous Materials. We reserve the right, at our sole discretion, to immediately destroy or return any portion of Your Content and Your Materials if we determine that any portion of Your Content or Your Materials poses a safety or security risk to the ECL, or to comply with any applicable law.

 

4. Your Responsibilities.

4.1. Your Experiments. You are solely responsible for the proper description and use of Your Experiments. For example, you are solely responsible for:

(a) selecting a technically appropriate Model for each Sample sent to the ECL;

(b) the conception and specification of Your Experiments, including selecting Samples and parameters — Emerald is not a contract research organization and does not provide any scientific advising services;

(c) the technical operation of Your Experiments, including ensuring that calls you make to the ECL are compatible with then-current functions and APIs for the ECL, including the current version of SLL, and that Your Experiments do not pose a hazard to the ECL or Emerald personnel;

(d) compliance of Your Experiments with the Policies and the law;

(e) any claims relating to Your Experiments; and

(f) properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that Your Experiments violate such person’s rights.

4.2. Your Samples. The ECL is a Biosafety Level 2 facility, as defined by the Center for Disease Control and Prevention. You are only permitted to submit and create Samples that may be handled in a Biosafety Level 2 or lower facility. You must truthfully and accurately disclose the identity and nature of Your Samples to Emerald in detail sufficient to ensure the ECL’s ability to process Your Samples and that Your Samples are not radioactive, highly volatile, or otherwise dangerous. All Samples you ship to the ECL must be shipped in compliance with all applicable regulations governing the shipment of hazardous materials. If Your Samples include a potentially hazardous substance that does not already have a corresponding Model in the ECL, Emerald must first certify the Model you submit for the substance before accepting delivery of the substance.

4.3. Harmful or Illegal Experiments. You represent that Your Content, Your Samples, and Your Experiments are transmitted to the ECL in good faith and that Your Experiments are not designed to damage any equipment in the ECL or otherwise harm the integrity of the ECL or pose a danger to anyone. You will not transmit or cause to be transmitted any Harmful Code to the ECL. You warrant that Your Experiments are not objectively dangerous to one skilled in the art and that none of Your Experiments will generate Samples that violate Section 4.2. Emerald reserves the right to seek compensation from you for any harm it suffers due to a violation of this warranty, including but not limited to any expenses incurred as a result of the violation. You may not use the ECL to create or research illegal or illicit substances unless you have all applicable legal certifications and permissions.

4.4. Regulatory Approval. You are responsible for securing any authorizations necessary for using restricted samples, reagents, or other materials on the ECL. Emerald is not responsible for any delays relating to securing any permits, certifications, or permissions necessary to execute an Experiment and reserves the right to refuse to execute any Experiment for any reason. Experiments conducted on the ECL are subject to California Health and Safety Code §§11100–11111 and 11366.7, California Code of Regulations §§800–810, as well as applicable DEA regulations. Your own local regulations may also apply. If you are legally entitled to use a restricted sample, reagent, or other material, you are responsible for providing us with legally-sufficient documentation for each applicable regulation for each restricted item.

4.5. Other Security and Backup. You are responsible for properly configuring and using the ECL and taking your own steps to maintain appropriate security, protection, and backup of Your Content. ECL log-in credentials and private keys generated by the ECL are for your internal use only and you may not sell, transfer, or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.

4.6. Subject User Violations. You will be deemed to have taken and held responsible for any action that you permit, assist, or facilitate any person or entity to take related to this Agreement, Your Content, Your Experiments, or other use of the ECL, including those taken by Subject Users. You will ensure that all Subject Users comply with your obligations under this Agreement and that the terms of your agreement with each Subject User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement by a Subject User, you will immediately terminate such Subject User’s access to the ECL.

4.7. Actions of Fellow Team Users. Emerald is not responsible or liable for any actions taken by other Users within a Team. For example, if a valid User within a Team elects to delete certain data or make it public, responsibility for those actions lies with the User, not Emerald. Please construct your Teams with care. If you want to allow someone restricted access to certain data or experiments, Emerald suggests adding that User via a Sharing Team.

4.8. Administrators. Each Team shall have at least one Administrator. Only an Administrator may create a Team, add a User to a Team, and remove a User from a Team. The Responsible Entity may, upon written notice to Emerald, add or remove Administrators from a Team for which it is responsible.

4.9. Effect of User Failure or Delay. Emerald 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.

 

5. Fees and Payment.

5.1. Laboratory Availability. ECL utilizes Threads to represent access to laboratory bandwidth. Experiments run on a specific Thread and may incur additional charges as explained in Section 5.2. Threads are associated with a specific Finance Team. Only the Responsible Entity for a Finance Team, or its authorized representative, may purchase additional Threads for a Finance Team and the Responsible Entity is ultimately responsible for all expenses incurred by the Finance Team’s Users on its Threads. Your Finance Team will pay us the applicable fees and charges for use of the ECL as described on the ECL User Interface using one of the payment methods we support. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Payments made through the ECL User Interface will generally post to the Team’s balance after payment has been processed by Emerald. Payments made vis-à-vis a Purchase Order will post after Emerald has reviewed and approved the results of any credit checks related to the Purchase Order and received payment pursuant to the terms of the Purchase Order. Emerald reserves the right to refuse to accept payment for any reason, upon which the transaction will be cancelled and you will not be charged.

5.2. Experiment Fees. The total fees owed for an Experiment are calculated after an Experiment is completed. The cost of an Experiment may include instrument time, any materials used (including applicable stocking fees), applicable shipping and handling fees, waste disposal fees, physical storage fees, software licenses, data fees, and Thread fees. Private instances on the ECL may incur other costs, for example controls and maintenance costs and space rental fees. Fees are billed on a monthly basis.

Only Users who are members of the Finance Team are allowed to create and enqueue Experiments for the Team. The Responsible Entity of a Team is responsible for all fees and charges incurred by the Team, including those incurred by any of the Team’s Users. Fees and charges for any new features or functionality of the ECL will be effective when updated in Constellation unless we expressly state otherwise in a notice. We may charge the Team interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.

5.3. Maintenance Fees. We calculate and bill maintenance fees relating to Content and Sample storage and accessibility, as well as general account maintenance, monthly. We may bill the Team more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Any updates or amendments to maintenance fees will be effective when we post updated fees and charges on Constellation unless we expressly state otherwise in a notice. We may charge the Team interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.

5.4. Taxes. All fees and charges payable by the Team you are a member of are exclusive of applicable taxes and duties, including VAT and applicable sales tax. Unless otherwise stated, the Team’s Responsible Entity is responsible for paying any applicable tax and duty obligations relating to the Team’s use of the ECL. The Responsible Entity will provide us any information we reasonably request to determine whether we are obligated to collect sales tax or VAT from the Team. If the Team is legally entitled to an exemption from any sales, use, or similar transaction tax, the Responsible Entity is responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under the Team’s account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, the Responsible Entity will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, the Responsible Entity will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

5.5. Past Due Invoices. Unless otherwise stated in writing, payment is due within 30 calendar days of receipt of invoice. If the Finance Team’s balance is unpaid 30 calendar days after receipt, Emerald may, at its sole discretion, temporarily suspend the Team in accordance with Section 6. During the temporary suspension you will be denied access to all aspects of the ECL vis-à-vis that Team except for purposes of rendering payment. Further, any existing Experiments with status Accepted will not be run while the temporary suspension is in effect. If the Team’s invoice is still unpaid after 90 calendar days after receipt, then Emerald reserves the right to immediately terminate the Team and all ECL Users who are members of that Team for cause pursuant to Section 7. However, the termination of a given ECL User pursuant to this paragraph will be limited in scope to only the terminated Team, i.e., if the ECL User is a member of another Team in good standing then the ECL User may continue to work with that Team. 

 

6. Temporary Suspension.

6.1. Generally. We may suspend your or any Subject User’s right to access or use any portion or all of the ECL immediately upon notice to you if we determine:

(a) your or a Subject User’s access to or use of the ECL (i) poses a safety risk to the ECL, Emerald personnel or any third party, (ii) poses a security risk to the ECL or any third party, (iii) may adversely impact the ECL or the Samples or Content of any other ECL customer, (iii) may subject us, our affiliates, or any third party to liability, (iv) may constitute criminal or otherwise illegal activities, (v) may be fraudulent, or (vi) engages in malicious behavior;

(b) you are, or any Subject User is, in breach of this Agreement, including if you are delinquent on your payment obligations for more than 30 days; or

(c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.

6.2. Effect of Suspension. If we suspend your right to access or use any portion or all of the ECL:

(a) the applicable Responsible Entity remains responsible for all fees and charges you have incurred through the date of suspension;

(b) the applicable Responsible Entity remains responsible for any applicable fees and charges for portions of the ECL to which you continue to have access, as well as applicable data and sample storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;

(c) Your Experiments with status Running at the time of the suspension will, at Emerald’s sole discretion, run to completion, but in any event no further Experiments will be run for the duration of the suspension; and

(d) we will not erase any of Your Content or destroy any of Your Samples as a result of your suspension, except as specified elsewhere in this Agreement.

Our right to suspend your or any Subject User’s right to access or use the ECL is in addition to our right to terminate this Agreement pursuant to Section 7.2.

 

7. Term; Termination.

7.1. Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by you or us in accordance with Section 7.2.

7.2. Termination.

(a) Termination for Convenience. You may terminate this Agreement for any reason by: (i) providing us notice and (ii) closing your account for all aspects of ECL for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you 30 days advance notice.

(b) Termination for Cause.

(i) By Either Party. Either party may terminate this Agreement for cause upon 30 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period.

(ii) By Us. We may also terminate this Agreement immediately upon notice to you (A) for cause, if any act or omission by you or any Subject User results in a suspension described in Section 6.1, (B) if we believe providing any portion of the ECL could create a substantial economic or technical burden or material security risk for us, (C) in order to comply with the law or requests of governmental entities, (D) if we determine use of the ECL by you or any Subject Users or our provision of any portion of the ECL to you or any Subject Users has become impractical or unfeasible for any legal or regulatory reason, or (E) if our relationship with a third party partner who provides software or other technology we use to provide the ECL expires, terminates or requires us to change the way we provide the software or other technology as part of the ECL.

7.3. Effect of Termination.

(a) Generally. Upon any termination of this Agreement:

(i) all your rights under this Agreement immediately terminate;

(ii) the applicable Responsible Entity remains responsible for all fees and charges you have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination; any fees and charges incurred after termination for the storage, shipment, and disposal of Your Content and Your Samples; and any monthly fees through the end of the month in which termination occurred, i.e., monthly fees will not be prorated for partial months;

(iii) you will immediately return or, if instructed by us, destroy all ECL Content in your possession; 

(iv) all of Your Experiments except those with status Running will be cancelled; and

(v) Sections 4.1, 4.8, 5, 7.3, 8 (except the license granted to you in Section 8.3), 9, 10, 11, 13 and 15 will continue to apply in accordance with their terms.

(b) Post-Termination Assistance. Unless we terminate your use of the ECL pursuant to Section 7.2(b), during the 30 days following termination:

(i) we will not erase any of Your Content or destroy any of Your Samples as a result of the termination, except as provided in Section 3.6;

(ii) you may retrieve Your Content and Your Samples from the ECL only if the applicable Responsible Entity has paid any charges for any post-termination use of the ECL and all other amounts due, including any fees and charges associated with the retrieval; and

(iii) we will provide you with the same post-termination data retrieval assistance that we generally make available to all customers.

(c) Abandoned Content and Samples. By the 30th calendar day following termination, if any of Your Content or Your Samples remain in the ECL you must elect whether Emerald is to return or destroy all of Your Content and Your Samples and pay any fees and charges related to your election. If the applicable Responsible Entity does not pay the requisite fees and charges relating to your election, or do not make an election, Your Content and Your Samples will be considered abandoned. Emerald reserves the right to destroy abandoned Content and Samples, and to bill you or the applicable Responsible Entity for any associated costs, 90 calendar days following termination. You are responsible for deciding the disposition of Your Content and Your Samples in a timely manner and Emerald is not liable for the destruction of abandoned Content and Samples.

Any additional post-termination assistance from us is subject to mutual agreement by you and us. 

7.4. Permanent Bans. If Emerald terminates this Agreement for cause under Section 7.2(b)(ii)(A)–(D), then Emerald may, at its sole discretion, permanently ban you from accessing the ECL. If you attempt to circumvent the ban, e.g., access the ECL using another User’s account or create a new account under a different identity, any positive balance associated with that account will be seized by Emerald and considered forfeit. For avoidance of doubt, if another User is affected by your actions, liability for the loss of access and cash lies with you, not Emerald.

 

8. Proprietary Rights.

8.1. Your Content and Samples. As between you and us, you or your licensors own all right, title, and interest in and to Your Content and Your Samples. Except as provided in this Section 8, we obtain no rights under this Agreement from you or your licensors to Your Content, including any related intellectual property rights, except, to the extent necessary, a limited, royalty-free, fully-paid up, non-exclusive, transferable, and sublicensable license for the purpose of effectuating Section 3.5. You consent to our use of Your Content to provide the ECL to you, Subject Users, and others with permission to access Your Content. We may disclose Your Content to provide the ECL to you, any Subject Users, other Users with access permissions, or to comply with any request of a governmental or regulatory body (including subpoenas or court orders). For avoidance of doubt, while Your Content may incorporate ECL Content, Your Content is limited in scope to your specific usage of the ECL Content, not the ECL Content itself. Emerald does not grant you any ownership interest whatsoever in the ECL Content. For example, any code you write using SLL is included in Your Content, but you do not gain any ownership interest in the actual SLL functions or supporting functionality.

8.2. Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Your Samples; (b) you have all rights, including regulatory permissions, in Your Content and Your Samples necessary to grant the rights contemplated by this Agreement; (c) none of Your Content, Your Samples or Subject Users’ use of Your Content or Your Samples on the ECL violates your obligations under Sections 3 and 4 of this Agreement; and (d) your actions on the ECL are in compliance with all laws and regulations of all applicable jurisdictions. We reserve the right to request legally-sufficient documentation confirming your rights under this Section.

8.3. ECL License. As between you and us, we or our affiliates or licensors own and reserve all right, title, and interest in and to the ECL. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to do the following during the Term: (i) access and use the ECL solely in accordance with this Agreement; and (ii) copy and use ECL Content solely in connection with your permitted use of the ECL. Except as provided in this Section 8.4, you obtain no rights under this Agreement from us or our licensors to the ECL or its supporting systems, including any related intellectual property rights. Some ECL Content may be provided to you under a separate license, such as the Wolfram Mathematica License Agreement or Apache Software License. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to that ECL Content.

8.4. License Restrictions. Neither you nor any Subject User may use the ECL in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any Subject User may, or may attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the ECL (except to the extent software included in the ECL are provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile any portion of the ECL or apply any other process or procedure to derive the source code, knowledge representations, Symbolic Lab Language implementations, or database specifications of any software included in the ECL, (c) access or use the ECL in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the ECL. All licenses granted to you in this Agreement are conditional on your continued compliance this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any aspect of the ECL you have used. 

8.5. Suggestions. If you provide any Suggestions to us or our affiliates, we will own all right, title, and interest in and to the Suggestions, even if you have designated the Suggestions as confidential. We and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.

 

9. Indemnification.

9.1. General. You will defend, indemnify, and hold harmless us, our affiliates and licensors and business partners, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your or any Subject Users’ use of the ECL (including any activities under your ECL account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you or any Subject User; (c) Your Content, or the combination of Your Content with other applications, Content or processes, including any claim involving alleged infringement or misappropriation of third party rights by Your Content or by the use, development, design, production, Processing, advertising or marketing of Your Content; (d) Your Samples or the use of Your Samples, including, without limitation, in combination with other Samples; (e) the destruction of any abandoned Content or Samples as described in Section 7; or (f) a dispute between you and any Subject User or fellow Team User. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.

9.2. Process. We will promptly notify you of any claim subject to Section 9.1, but our failure to promptly notify you will only affect your obligations under Section 9.1 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.

9.3 Patent Claims. Emerald agrees to defend at its expense any suits brought by a third party against you based upon a claim that the ECL itself infringes any U.S. registered patent, and to pay costs and damages finally awarded in any such suit against you; provided, however, that we shall have no such obligation with respect to any suit arising, in whole or in part, from (i) your negligence or willful misconduct, (ii) breach by you of any of your obligations under this Agreement, (iii) Your Content or Your Samples, (iv) any action or inaction of Emerald taken at your direction; (v) access to or use of the ECL in combination with any hardware, system, software, network, products, instruments, equipment or other materials manufactured by third parties; (vi) modifications of the ECL Content by you or on your behalf; or (vii) any malfunction or defects in any products, materials, instruments or equipment manufactured by third parties that you use through the ECL, including, without limitation, lab equipment and computing equipment. You will promptly notify Emerald in writing of any claim or suit. Emerald will have control of such claim or suit to defend or settle at its expense. You will provide reasonable assistance for Emerald’s defense of such claim or suit.

 

10. Disclaimers.

THE ECL IS PROVIDED “AS IS.” WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE ECL, THIRD PARTY CONTENT, OR THE ACTIONS OF THIRD PARTIES, INCLUDING ANY WARRANTY THAT THE ECL OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, YOUR EXPERIMENTS WILL BE COMPLETED WITHIN A SPECIFIC TIME FRAME OR YIELD A PARTICULAR RESULT, OR THAT ANY CONTENT OR SAMPLES, INCLUDING YOUR EXPERIMENTS OR THIRD PARTY CONTENT AS WELL AS YOUR SAMPLES, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. FURTHER, WE AND OUR AFFILIATES AND OUR LICENSORS ARE NOT RESPONSIBLE FOR ANY DELAYS BY THIRD PARTIES, INCLUDING DELAYS IN THE DELIVERY OF REAGENTS, EQUIPMENT, AND EXPERIMENTAL MATERIALS, AS WELL AS DELAYS IN GRANTING OF ANY REGULATORY APPROVALS. WE AND OUR AFFILIATES AND OUR LICENSORS DO NOT REPRESENT OR WARRANT THAT WE WILL PROVIDE SUPPORT FOR VIEWING YOUR CONTENT OUTSIDE OF THE ECL USER INTERFACE. WE AND OUR AFFILIATES AND OUR LICENSORS DO NOT REPRESENT OR WARRANT THAT WE WILL PROVIDE SUPPORT FOR VIEWING YOUR CONTENT BEYOND THE TERM OF THIS AGREEMENT. WE AND OUR AFFILIATES AND OUR LICENSORS ARE NOT RESPONSIBLE FOR ANY DELAYS IN CHANGING THE PRIVACY SETTINGS OF YOUR CONTENT, OR ANY CONSEQUENCES OF SUCH DELAYS. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.

 

11. Limitations of Liability.

WE AND OUR AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE ECL, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE ECL, (II) OUR DISCONTINUATION OF ANY PORTION OR ALL OF THE ECL, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE ECL FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES, OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE ECL; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR EXPERIMENTS, YOUR CONTENT, YOUR SAMPLES, OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SPECIFIC EXPERIMENT THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.

 

12. Modifications to the Agreement.

We may modify this Agreement (including any Policies) at any time by posting a revised version on the ECL User Interface or by otherwise notifying you in accordance with Section 13.6. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the ECL after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the ECL User Interface regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the beginning of this Agreement.

 

13. Miscellaneous.

13.1. Confidentiality and Publicity. You may use ECL Confidential Information only in connection with your use of the ECL as permitted under this Agreement. You will not disclose ECL Confidential Information during the Term or at any time during the 5 year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination, or unauthorized use of ECL Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the ECL, unless authorized in writing by Emerald. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.

13.2. Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God; labor disputes or other industrial disturbances; systemic electrical, telecommunications, or other utility failures; national or regional shortage of adequate power, telecommunications, transportation, laboratory supplies, or laboratory equipment; earthquake, storms or other elements of nature; blockages; embargoes; riots or other civil unrest; acts or orders of government; or acts of terrorism, invasion, or war.

13.3. Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party and (b) to assist third parties who may offer products or services which compete with the other party’s products or services. However, for avoidance of doubt Emerald will not use any of Your Content designated as private except as otherwise specified in this Agreement, e.g., for system diagnostic purposes.

13.4. No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.

13.5. Import and Export Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the ECL, including your transfer and processing of Your Content and Your Samples, the provision of Your Content and Your Samples to Subject Users, and the geographic region in which any of the foregoing occur. For reference, the physical experimentation portion of the ECL is based in the state of California, United States of America.

13.6. Notice.

(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the ECL User Interface, or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the ECL User Interface will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.

(b) To Us. Unless otherwise specified in this Agreement, to give us notice under this Agreement, you must contact ECL as follows: (i) through the relevant aspect of the ECL User Interface or (ii) email sent to notice@emeraldcloudlab.com. We may update the email address for notices to us by posting a notice on the ECL User Interface. Notices provided to us by email will be effective one business day after the email they are sent.

(c) Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.

13.7. Assignment. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 13.7 will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

13.8. No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.

13.9. Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted in a manner that most closely reflects the effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.

13.10. Governing Law; Venue; Arbitration. The laws of the State of Delaware, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us.

You and we agree that any and all claims arising from or relating to this Agreement or any service provided by Emerald to you shall be subject to binding arbitration under the Federal Arbitration Act (“FAA”). This includes claims based on contract, tort, equity, other common law, statute, or otherwise, as well as claims regarding the scope and enforceability of this provision.

A single arbitrator shall decide all claims and shall render a final, written decision. You may choose Judicial Arbitration and Mediation Service (“JAMS”) or other similar arbitration service provider acceptable to Emerald to administer the arbitration. Consistent with the FAA, the appropriate JAMS rules or other service provider rules shall apply, as determined by the arbitrator. For JAMS these rules are found at www.jamsadr.com.

Unless otherwise agreed by the parties, the arbitration shall take place in the San Francisco Bay Area, California and Delaware law will apply to any common law claim, though the FAA shall govern this arbitration provision and its enforceability.

Each party to the arbitration shall pay his, her, or its own costs of arbitration. If you cannot afford your arbitration costs, you may apply for a waiver of costs under the relevant rules. 

The parties waive any right to bring representative claims on behalf of a class of individuals, on behalf of the public, as a private attorney general, or otherwise (the “class action waiver”). Except for this class action waiver, this clause may be severed or modified if necessary to render it enforceable under the FAA.

13.11. Entire Agreement; English Language. This Agreement includes the Policies and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. Notwithstanding any other agreement between you and us, the security and data privacy provisions in Section 3 of this Agreement contain our and our affiliates’ entire obligation regarding the security, privacy, and confidentiality of Your Content. We will not be bound by, and specifically object to, any term, condition, or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence, or other document, unless such submission is explicitly authorized in writing by Emerald. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control, except that the Third Party Service Terms will control over this document. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.

 

14. Refunds.

14.1. Generally. Any refund requests must be tied to a specific Experiment and made through the ECL User Interface as part of the troubleshooting process for a specific Experiment. Troubleshooting requests must be made within 30 calendar days of the completion of the Experiment. If, upon completion of the troubleshooting process, the issue is unresolved to your satisfaction, Emerald may, at its sole discretion, offer to issue a refund for all or part of the eligible associated fees. Refunds will be issued within 90 calendar days after the request has been approved by Emerald.

14.2. Nonrefundable Items. Maintenance Fees detailed in Section 5.3 are nonrefundable. Fees assessed for Sample intake kits and the shipping and handling of Samples are nonrefundable. 

14.3. Foreign Currency. The purchase and refund of Threads, Maintenance Fees, and other expenses is denominated in US Dollars (“USD”). If the transaction is conducted in a foreign currency, then the exchange rate utilized by Emerald at the time of the transaction shall govern in calculating the value of the original transaction in US Dollars for purposes of this clause. Further, returns shall also be denominated in US Dollars and subject to the exchange rate at the time the refund request is processed. If you request that the refund be made in another currency besides US Dollars, then the refund shall be converted to that currency at the current exchange rate utilized by Emerald at the time the refund is issued. Emerald is not responsible for any change in the value of the refund due to changes in the applicable currency exchange rate.

14.4. Withholding. Emerald reserves the right to withhold a portion of the requested refund sufficient to defray any maintenance fees, sample destruction, or shipment costs associated with the refund request.

 

15. Definitions.

Accepted” means that your experiment is waiting for available resources to begin (such as instrumentation, materials, etc., as indicated through the ECL User Interface.

Administrator” means a User with the additional ability to add and remove Users from a Team.

API” means an application program interface.

Command Center” (“CC”) means the web-enabled software interface to the ECL used to direct experimentation, visualize data, analyze data, search and browse through data, share data, as well as conduct numerical simulations.

Constellation” means the ECL cloud-based repository utilized by ECL software to coordinate data.

Content” means software (including machine images), APIs, code, data, Models, knowledge representations, text, audio, video, images, or any other work of authorship.

Creative Commons Attribution 4.0 International Public License” references the license viewable at http://creativecommons.org/licenses/by/4.0/legalcode.

Documentation” means the developer guides, getting started guides, user guides, quick reference guides, manuals, instructions, function help files, or other documents or materials that Emerald or its affiliates provide or make available to you in any form or medium and which describe the functionality, components, features or requirements of the ECL, or supporting functionality, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

ECL” means the experimental, analytical, and computational services of the Emerald Cloud Lab, including associated APIs, made available by us or our affiliates through the ECL User Interface, including any supporting services and functionality described in the Third Party Service Terms, further including all new versions, updates, revisions, improvements, and modifications of the foregoing that we provide remote access to and use of as part of the Emerald Cloud Lab. ECL does not include Third Party Content.

ECL Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners, or our or their respective employees, contractors, or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. ECL Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances, and other business affairs; (b) third party information that we are obligated to keep confidential; and (c) the nature, content, and existence of any discussions or negotiations between you and us or our affiliates. ECL Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the ECL Confidential Information.

ECL Content” means Content we or any of our affiliates make available in connection with the ECL or on the ECL User Interface to allow access to and use of the ECL, including Web Services Description Languages; APIs, Documentation; sample code; software libraries; Wolfram Language functions; Symbolic Lab Language; command line tools; Models; and other related technologies.

ECL Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Emerald and its affiliates that we may make available to you in connection with this Agreement.

ECL User Interface” means the human–computer interface provided by us to enable you to access the ECL. This includes the Command Center, any website, command-line interface, Mathematica notebook, browser, or software development environment.

Effective Date” has the meaning set forth in the preamble.

Experiment” means any SLL function that starts with Experiment and produces a protocol object, as well as the actual physical actions performed in a laboratory pursuant to that protocol object.

Finance Team” means a type of Team where ECL Users share access to a billing account to pay for charges accrued by that Team. The Team’s Responsible Entity accepts all legal and financial liability for a Finance Team and the actions of that Team’s Users.

Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, other malicious computer code, or Experiment, 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, laboratory equipment, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any Content or Experiment thereby, or (b) prevent any other Users from accessing or using the ECL as intended by this Agreement.

Model” means a database object in the ECL which contains information regarding the general concepts relating to an Object, such as the physical properties that a class of chemical may possess or the type of instrumentation.

Object” means a database object in the ECL which contains information about specific physical instantiations, such as a chemical sample, an instrument, or a piece of recorded data. 

Policies” means the Third Party Service Terms, all restrictions described in the ECL Content and on the ECL User Interface, and any other policy or terms referenced in or incorporated into this Agreement. The term Policies does not include whitepapers or other marketing materials referenced on the ECL User Interface or any website owned by Emerald.

Process” means to take any action or perform any operation or set of operations that the ECL is 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.

Responsible Entity” means the individual, corporation, limited liability company, trust, joint venture, association, company, limited or general partnership, unincorporated organization, governmental authority, or other entity that accepts all legal and financial responsibility for ECL Users on a Finance Team.

Sample” means any physical substance, item, or container that is or will be associated with an object in Constellation. Non-limiting examples include chemical reagents, cell cultures, oligopeptides, chromatography columns, and 96-well plates.

Sharing Team” means a type of Team whose members have access permission to the shared data within the Team.

Symbolic Lab Language” (“SLL”) means the underlying programming language (loaded as a library along with the Wolfram Language in the CC) used to direct scientific activities such as conduct experiments, visualize data, search data, analyze data, conduct simulations, generate reports, etc.

Subject User” means any individual or entity that directly or indirectly through another User accesses or uses the ECL under your account. The term “Subject User” does not include individuals or entities when they are accessing or using the ECL under their own ECL account.

Suggestions” means all suggested improvements to the ECL that you provide to us, including any bug reports.

Team” means a collection of ECL Users who share access to instruments, samples, data, etc. as part of a working research group. ECL Users may be members of multiple Teams.

Term” means the term of this Agreement described in Section 7.1.

Third Party Content” means Content made available to you by any third party on the ECL or in conjunction with the ECL. For example, papers uploaded by another User to the ECL and shared with you.

Third Party Service Terms” means the rights and restrictions for particular aspects of the ECL located at http://emeraldcloudlab.com/thirdpartyserviceterms, as they may be updated by us from time to time.

Thread” means allocated laboratory bandwidth for execution of procedures specified by Experiments.

User” means an individual or entity with a validly registered ECL account. Some Users, where permitted, have access rights and privileges to run experiments, consume, direct the use of, and dispose of samples, generate, modify, and delete data, analysis, reports, and simulations. A User’s ability to perform certain actions on the ECL may be limited in certain contexts, e.g., a User in a Sharing Team does not have permission to run experiments.

Your Content” means information, data, code, Your Experiments, and other Content, in any form or medium, that is collected, uploaded or otherwise received, directly or indirectly from you by or through the ECL or that incorporates or is derived from the Processing of such information, data, or Content by or through the ECL. Your Content includes information associated with Your Experiments, including but not limited to experimental protocols, SLL code, experimental results, experimental session information, and information regarding Your Samples. However, the scope of Your Content is limited to your specific use of that Content. For example, to the extent Your Content is coextensive with that of other ECL Users, e.g., when a specific instrument is used to execute two User’s respective Experiments, the instrument identifier is included in the Content of both Users but Your Content is limited to your specific usage of that instrument, not the other User’s use of that instrument or that instrument in general. Further, to the extent Your Content includes ECL Content, e.g., incorporates SLL functions provided by Emerald, Your Content only includes your specific use of the ECL Content, e.g., your code which utilizes those SLL functions, not the SLL functions themselves. For avoidance of doubt, inclusion of ECL Content in Your Content does not grant you any ownership right in the ECL Content.

Your Experiments” means Experiments you or any Subject User (a) run on the ECL, (b) cause to run on the ECL, (c) specify using the ECL, or (d) upload to the ECL under your account or otherwise transfer, process, use, or store in connection with your account.

Your Samples” means any physical materials sent to or provisioned by Emerald for use in Your Experiments, other analysis, or storage on the ECL. Your Samples also encompasses the physical product of any Experiment run on Your Samples, e.g., if you provide ECL with a DNA template and run PCR on the provided template then the resultant amplified DNA is also a included in Your Samples.