ECL Terms of Service Agreement

Updated: December 3, 2019

This ECL Terms of Service Agreement (this “Agreement”) is a binding contract 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 that you are lawfully able to enter into contracts. If you are entering into this Agreement for an entity, you represent that you have legal authority to agree to this Agreement on that entity’s behalf and 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, all documentations, rules and regulations applicable to your use of the ECL, including the Third Party Service Terms and the Policies. We have and will retain sole control over the operation, provision, maintenance, and management of the ECL, and we may modify the ECL from time to time at our sole discretion, for any purpose deemed appropriate by us. 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 Service, you must create an ECL account associated with a valid e-mail address. You are solely responsible for creating and maintaining the security of your ECL account log-in and for all activities that occur under your account with or without your knowledge or consent. You shall contact us immediately if you believe an unauthorized party may be using your account or if your account information is lost, stolen, or otherwise compromised.

1.3. Third Party Content; Third Party Services. Third Party Content, such as papers and experimental protocols uploaded by other ECL Users, may be made available to you by other ECL Users. You acknowledge and agree that the ECL operates on or with or using APIs and/or other services operated or provided by third parties (“Third Party Services”).

1.4. Research Only. The ECL is for scientific and technical research purposes only. The ECL shall not be used in clinical research or in the diagnosis and/or treatment of medical and physical conditions in humans, and shall not be used as a substitute for professional medical advice (“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 all applicable laws.

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

2.1. ECL Security. Without limiting your obligations under Section 3 and subject to Section 9, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access, or disclosure.

2.2. 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 2.5. You have the option of designating some or all of Your Content as publicly accessible. By designating any of Your Content as publicly accessible, you agree to make such Content available under 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 terminate 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.

2.3. Interaction. The ECL may be used only by a human being via the ECL User Interface and Emerald provided APIs. Without our express written authorization in advance, any attempt to use a robot, script, or organized group of humans to repeatedly access the ECL beyond its intended use, 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 deem as jeopardizing the integrity of our system is strictly forbidden, for which we may terminate or suspend your access to the ECL for specific Users or IP ranges.

2.4. Right to Download. Subject to your full compliance with all the terms and conditions in this Agreement and the Third Party Service Terms, you shall have the right to download the raw experimental data associated with Your Experiments during the Term, and, where applicable, as supplemented in Section 6.

2.5. 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, to troubleshoot an Experiment to diagnose any potential errors, as well as to derive information to improve or augment any aspect of the ECL. For example, inspecting for Harmful Code in violation of Section 3.3, inspecting for dangerous material types in violation of Section 3.2, deriving usage statistics to optimize instrument availability, and updating statistical models.

2.6. Dangerous Materials. We reserve the right, at our sole discretion and upon notice to you, to immediately destroy or return any portion of Your Content, Your Samples, or Your Experiments, if we determine that such portion poses a safety or security risk to the ECL, or if destruction or return is required for the ECL to comply with any applicable law. 

3. Your Responsibilities.

3.1. Your Experiments. Emerald does not provide any scientific advising services. You are solely responsible for the proper description and use of Your Experiments, including without limitation:

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

(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 all applicable laws;

(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.

3.2. 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 are permitted to 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 will not accept such Samples before first certifying the Model you submit for the substance.

3.3. 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 will not 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 3.2. Emerald reserves the right to seek compensation from you for any harm it suffers due to a violation of this Section, 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.

3.4. 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, and applicable local regulations. 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.

3.5. Security and Backup. You are responsible for properly configuring and using the ECL and maintaining 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.

3.6. Subject User Violations. You shall ensure that all Subject Users comply with your obligations under this Agreement and that the terms of your agreement with each Subject User shall be at least as protective of the ECL and Emerald as those of this Agreement. If you become aware of any violation by a Subject User, you will immediately terminate such Subject User’s access to the ECL.

3.7. Actions of Other Users. Any exchange of data or other interaction between you and other Users is solely between you and such other Users. Emerald is not responsible or liable for any actions taken by other Users, whether within a Team or not. For example, if a valid User within a Team elects to delete certain data or make it public, such User shall be solely responsible for those actions, 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. 

3.8. Administrators. You shall designate at least one Administrator for each Team you construct. 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.

3.9. 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.

4. Fees and Payment.

4.1. Payment. The Responsible Entity of your Finance Team shall pay us all the applicable fees and charges for use of the ECL as described on the ECL User Interface. All amounts payable under this Agreement will be made using one of the payment methods we support, without setoff or counterclaim, and without any deduction or withholding. 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. Unless otherwise stated in writing, payment is due within 30 calendar days of receipt of invoice. Emerald may charge your Team interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. 

4.2. Threads; Experiment Fees. 

The Responsible Entity of your Finance Team may purchase Threads for you to run Experiments. The total fees owed for an Experiment run on a Thread are calculated based on actual usage after the applicable 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, and data fees. Any fees quoted through the ECL User Interface prior to the execution of an Experiment shall be estimates only. Where applicable, private instances on the ECL may incur other costs, for example controls and maintenance costs and space rental fees as specified in the addendum for private instances. Fees are billed on a monthly basis.

Only Users who are members of your Finance Team are allowed to create and enqueue Experiments for your Team. 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. 

4.3. 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. 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.

4.4. Taxes. All fees and charges payable hereunder are exclusive of all taxes and duties, including VAT and applicable sales tax. The Team’s Responsible Entity is responsible for paying any applicable tax and duty relating to the Team’s use of the ECL, unless you have provided us with a valid exemption certificate. 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. 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. Temporary Suspension.

5.1. Generally. Upon notice to you, we may suspend your or any Subject User’s right to access or use any portion or all of the ECL immediately, and/or cancel or refuse to run any Experiment for any reason including if we determine:

(a) your or a Subject User’s access to or use of the ECL or your 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 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.

5.2. 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 (i) you have incurred through the date of suspension, and (ii) 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;

(b) if the suspension applies to all of the ECL, you will be denied access to all aspects of the ECL vis-à-vis that Team except for purposes of rendering payment; 

(c) Your existing Experiments with status Accepted will not be run while the temporary suspension is in effect;

(d) 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

(e) 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 other rights and remedies available under law or in equity, including our right to terminate this Agreement pursuant to Section 6.2.

6. Term; Termination.

6.1. 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 6.2.

6.2. 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 5.1, (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.

6.3. 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 3.1, 3.8, 4, 6.3, 7 (except the license granted to you in Section 7.3), 8, 9, 10, 12 and 14 will continue to apply in accordance with their terms.

(b) Post-Termination Assistance. Unless we terminate this Agreement pursuant to Section 6.2(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 2.6;

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

(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, within 60 days, 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, prior to the expiration of such 60-day period, 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. Emerald is not liable for the destruction of abandoned Content and Samples.

6.4. Permanent Bans. If Emerald terminates this Agreement for cause under Section 6.2(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. You shall be solely responsible for and indemnify and hold Emerald harmless against any damages, losses, liabilities, and expenses that may be claimed by such other User. 

7. Proprietary Rights.

7.1. Your Content and Samples. As between you and us, you own all right, title, and interest in and to Your Content and Your Samples. Except as provided in this Section 7, we obtain no rights under this Agreement from you to Your Content, including any related intellectual property rights. You hereby grant us a limited, royalty-free, fully-paid up, non-exclusive, worldwide, transferable, and sublicensable license to use Your Content and Samples for the purpose of (i) effectuating Section 2.5, (ii) providing the ECL to you, Subject Users, and others with permission to access Your Content, and (iii) otherwise performing our obligations and exercising our rights hereunder. We may disclose Your Content to comply with any request of a governmental or regulatory body (including subpoenas or court orders). 

7.2. Warranties. 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 2 and 3 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.

7.3. ECL License. We or our affiliates or licensors own and reserve all right, title, and interest in and to the ECL and the ECL Content. Subject to your full compliance with the terms and conditions hereunder, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license, during the Term, to: (i) access and use the ECL solely in accordance with this Agreement; and (ii) copy and use ECL Content solely in support of your permitted use of the ECL. Except as provided in this Section 7.3, you obtain no rights under this Agreement from us or our licensors to the ECL or its supporting systems or the ECL Content, 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.

7.4. License Restrictions. Neither you nor any Subject User may (nor shall you permit others to) 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, nor shall you permit others 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, underlying structure, ideas or algorithms, knowledge representations, Symbolic Lab Language implementations, or database specifications of the ECL (including any software included therein and any data or documentation related thereto), (c) access or use the ECL in a way intended to avoid incurring fees or exceeding usage limits or quotas or for any purpose other than its own internal use for its own internal benefit, (d) resell or sublicense the ECL, or (e) use the ECL or software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights (including but not limited to those related to privacy, intellectual property, obscenity, or defamation). 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. 

7.5. Suggestions. If you provide any Suggestions to us or our affiliates, we will own all right, title, and interest in and to the Suggestions and Suggestions shall be deemed as our confidential information. Suggestions shall not be deemed as your confidential information, even if you have designated the Suggestions as confidential. 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.

8. Indemnification.

8.1. 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); (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 6; 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.

8.2. Process. We will promptly notify you of any claim subject to Section 8.1, but our failure to promptly notify you will only affect your obligations under Section 8.1 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.

8.3 Patent Claims. Emerald agrees to defend at its expense any suits brought by a third party against you to the extent based upon a claim that use of the ECL itself as authorized under this Agreement infringes any U.S. registered patent, and to pay costs and damages finally awarded in any such suit against you; provided that you will promptly notify Emerald in writing of any claim or suit, give Emerald the opportunity to assume the sole control of such claim or suit to defend or settle, and provide reasonable assistance requested by Emerald; Emerald will not be responsible for any settlement it does not approve. 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..

9. Disclaimers.

THE ECL AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT 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, ANY CONTENT, ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, OR ANY ACTION 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, SAMPLES, OR EXPERIMENTS, 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.

We do not make any representations or warranties with respect to Third Party Content and/or Third Party Services, and we are not responsible for your use of the Third Party Content, the operation of any Third Party Services, nor the availability or operation of the ECL to the extent such availability and operation is dependent upon Third Party Services.

The ECL is not a CLIA registered laboratory and we make no representation or warranty as to compliance with 21 C.F.R. § 58. You acknowledge that the results of the testing requested are only for the authorized uses set forth herein and further acknowledge that WE DISCLAIM ANY AND ALL LIABILITY AND/OR RESPONSIBILITY FOR USE OF THE ECL OR RESULTS FOR UNAUTHORIZED USES.

10. 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 USE OF OR INABILITY TO USE THE ECL; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT; 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. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAID US UNDER THIS AGREEMENT FOR THE SPECIFIC EXPERIMENT THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.

11. 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 12.6. 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.

12. Miscellaneous.

12.1. 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.

12.2. 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.

12.3. 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; provided that in doing so such party shall not breach this Agreement. 

12.4. 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.

12.5. Import and Export Compliance. 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.

12.6. 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.

12.7. 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 12.7 will be void. Emerald may transfer and assign any of its rights and obligations under this Agreement without your consent. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

12.8. 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.

12.9. 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.

12.10. 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. Both parties agree to choose Judicial Arbitration and Mediation Service (“JAMS”) to administer the arbitration. Consistent with the FAA, the appropriate JAMS rules shall apply, as determined by the arbitrator.

The arbitration shall take place in the San Francisco Bay Area, California.

Each party to the arbitration shall pay his, her, or its own costs of arbitration. 

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.

12.11. 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 2 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 Emerald explicitly agrees to such term, condition, or provision in writing. If the terms of this Agreement are inconsistent with the terms contained in any Policy, the terms contained in this Agreement 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.

13. Refunds.

13.1. 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.

13.2. Nonrefundable Items. Maintenance Fees detailed in Section 4.3 are nonrefundable. Fees assessed for Sample intake kits and the shipping and handling of Samples are nonrefundable. 

13.3. Foreign Currency. All payment and refund hereunder is denominated and shall be made in US Dollars (“USD”). If you request the payment to be made 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 USD. If you request that the refund be made in any currency other than USD, 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 currency exchanges.

13.4. 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.

14. 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 without confidentiality obligations at the time of your receipt from us; (iii) is received by you without confidentiality obligations 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 white-papers 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 6.1.

Third Party Content” means Content made available to you by any third party on the ECL or in conjunction with the ECL, such as papers and experimental protocols 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 https://www.emeraldcloudlab.com/legal, as they may be updated by us from time to time.

Thread” means allocated laboratory bandwidth per period of time 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 created or uploaded by you through the ECL or that incorporates or is derived from the Processing of such information, data, or Content by or through the ECL, excluding ECL Content as described below. Your Content may include 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 included in Your Samples. 

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