LabLink xLTM

 

TERMS OF SERVICE

 

Effective December1, 2015

 

 

 

1.         ACCEPTANCE

A.        These terms of service (“Terms of Service”) are between Microgenics Corporation (“Microgenics”) and you, (as defined below) and govern access to and use of LabLink xLTM, a web-based hosted software as a service, including any LabLink xLTM infrastructure or tools, or beta versions of any of the foregoing (the “Service”).  To the extent of any conflict between the Terms of Service and the Thermo Fisher Scientific Privacy Policy (USA) (available at https://www.thermofisher.com/us/en/home/global/privacy-policy.html) these Terms of Service control with respect to the Service.  By using or accessing the Service, you signify your agreement to these Terms of Service and the Privacy Policy.  If you do not agree to any of these, you must not use the Service.

 

B.        PLEASE READ THESE TERMS OF USE CAREFULLY. IT IS IMPORTANT TO UNDERSTAND THAT THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU, ON BEHALF OF YOURSELF AND THE ENTITY YOU REPRESENT (COLLECTIVELY, “YOU”) AND MGC.  CLICKING ON THE “I ACCEPT” BUTTON OR CONTINUING TO LONG INTO THE SERVICE INDICATES THAT YOU ACCEPT AND INTEND TO BE BOUND BY THESE TERMS OF USE AND CONSENT TO ENTER INTO THIS AGREEMENT IN ELECTRONIC FORM.  IF YOU DO NOT ACCEPT THESE TERMS OF USE, DO NOT USE THIS SERVICE.

 

C.        NOTICE:  DO NOT INCLUDE PERSONALLY IDENTIFIABLE INFORMATION IN ANY DATA WHICH IS PROVIDED BY YOU IN CONNECTION WITH YOUR USE OF THE SERVICE.  This Service is not designed to receive and handle Personally Identifiable Information, which is defined as any information that relates to an identified or identifiable individual and can be used to distinguish or trace an individual’s identity without investing significant efforts, time, cost and/or other resources, including, but not limited to, education, financial transactions, medical history, and criminal or employment history, their name, social security number, date and place of birth, mother’s maiden name, biometric records, home address, home phone number, personal email address, financial information, fingerprint, photograph, information stored in social media networks and medical information. You agree to de-identify in accordance with state-of-the-art requirements all data concerning individuals (“Data Subject(s)”) that you submit or have submitted to this Service. If the data you provide in connection with your use of the Service includes Personally Identifiable Information, you consent to the transfer of such information to countries that may have a lower standard of protection of Personally Identifiable Information than the standard of the country in which you are located. You accept that you will remain the controller of all data you process in connection with this Service and that MGC will only process that data on your behalf in accordance with the Purpose as defined below. Prior to submitting Data Subject’s data, you agree to collect and document the valid, informed and free consent from each Data Subject to process his/her data in connection with this Service and in accordance with these Terms of Service, where such consent may be required and in the form as required. You will ensure that, where necessary, such consent permits you to grant other users of this Service access to such data or merge various sets of data obtained from other data controllers as you deem appropriate, in each case in accordance with the Purpose. Further, you accept that MGC will not assume any responsibility in complying with applicable data protection laws and you waive any and all rights that you might have against MGC, should such laws not be complied with for any reason.

 

D.        As used in these Terms of Service, the term “Associated Materials” means the Service and any associated or supporting content or data, pre-configured computer hardware, user manuals or other documentation related to the Service, including without limitation associated sample files or programs, media, printed materials, patches, upgrades, utilities, tools, and/or “online” or electronic documentation.

 

E.        MGC reserves the right to change or modify any of the terms and conditions contained in these Terms of Service from time to time at any time. If MGC decides to change these Terms of Service, MGC will post a new version on the hosted site and update the effective date set forth above. Any changes or modifications to these Terms of Service will be effective upon posting of the revisions. Your continued use of the Service following posting of any changes or modifications constitutes your acceptance of such changes or modifications and if you do not agree with these changes or modifications, you must immediately cease using the Service.

 

F.        These Terms of Service shall prevail notwithstanding any different, conflicting, or additional terms or conditions which may appear in any purchase order or other document submitted by you.  You agree that such additional or inconsistent terms are deemed rejected by MGC.

 

G.        If you are obtaining a license to access and use a beta version of the Services, you may not designate or permit any other individual to use your access to the beta Services or the Associated Materials.  Your failure to meet or maintain the criteria above will be grounds for MGC to immediately terminate these Terms of Service.

 

2.         GRANT OF RIGHTS

 

A.        The software is licensed, not sold. These Terms of Service only give you some rights to use the Services.  MGC reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the software only as expressly permitted in this agreement.   You may not:

 

  • reverse engineer, decompile or disassemble the software, except and only to the extent that applicable law expressly permits, despite this limitation,

  • make more copies of the software than specified in this agreement or allowed by applicable law, despite this limitation,

  • publish the software for others to copy,

  • rent, lease or lend it, or

  • use it for commercial software hosting services.

 

B.        Subject to the terms and restrictions set forth in these Terms of Service, MGC grants you a nonexclusive, non-sublicensable, limited time, non-transferable right to access and use the Service solely for internal performance evaluation purposes.

 

C.        Beta License.  Subject to the terms and restrictions set forth in these Terms of Service, MGC grants you a nonexclusive, limited time, non-transferable, license for you to use the Service and Associated Materials solely for the purpose of evaluating and testing the Service and providing feedback to MGC with respect to the Service, subject to the terms and restrictions set forth in this Agreement.  The Service testing period is the test period agreed upon by you and MGC in writing, or if you and MGC do not agree upon a test period, the earlier of two months from the date of your first use of the Services or the date of termination of these Terms of Service.  You recognize and acknowledge that the Services furnished to you are experimental and are provided to you only for the purposes set forth in these Terms of Service.  You further acknowledge that, as an experimental, beta product, the Services may have defects or deficiencies that cannot or may not be corrected by MGC.  During the beta program testing period, you agree to provide periodic and timely feedback to MGC regarding your use of the Services, including error or bug reports.

 

3.         YOUR CONTENT

 

In consideration of the use rights granted to you in Section 2 above, for any performance data, content or other input, including feedback, provided by you to MGC via the Services or regarding the Services or Associated Materials (collectively, “Content”), you hereby grant MGC an unlimited, worldwide, perpetual, irrevocable, royalty-free, sublicenseable and transferable right and license to use, reproduce, communicate, distribute, copy, modify, delete in its entirety, edit, adapt, publish, translate, display, perform, create derivative works from, or sell or distribute such Content for any purpose, including incorporating such Content into any form, medium or technology whether now or hereafter known throughout the world, without compensation to you. 

 

4.         RESTRICTIONS

 

A.        The Service has not received any governmental approval, clearance, or similar designation (“Approvals”), does not necessarily satisfy the requirements of any governmental body or other organization, and has not been validated for clinical or diagnostic use, for safety and effectiveness, or for any other specific use or application.  You are solely responsible for compliance with any and all applicable laws, and regulations, and governmental policies that pertain to your use of the Service including, but not limited to, obtaining any necessary Approvals and conforming with any regional, territorial or other regulatory requirements, including but not limited to any submissions to or approvals required by applicable regulatory authorities, that pertain to your procedures and uses of the Service.

 

B.        To gain access to and use the Service, each individual user of the Service must have a unique user name or login name and associated password (“Login Credentials”) which then must be used to log into the Service and cannot be shared among individuals.  Login Credentials for use by a group of individuals or as a generic login are not permitted.

 

5.         NO SUPPORT SERVICES

 

MGC is not obligated to provide maintenance, technical or other support, or updates to you for the Services.

 

6.         TERM AND TERMINATION

 

You may terminate these Terms of Service by discontinuing use of the Service.  MGC may terminate this Agreement if you fail to comply with all of its terms, in which case you agree to discontinue using the Service.

 

7.         PROPRIETARY NOTICE - NO REVERSE ENGINEERING

 

You acknowledge that the Service, including its structure, sequence, and organization, is and remains confidential and proprietary information of MGC.  Except as prohibited by law, you agree not to directly or indirectly modify or attempt to reverse engineer, decompile, or disassemble the Service or any component thereof to any human readable or perceivable form.  You further agree not to create any derivative works based on the Service, or any parts thereof.  

 

8.         CONFIDENTIALITY

 

You acknowledge that the Service and Associated Materials constitute confidential information of MGC.  You shall not disclose such information to any third party except to its employees or affiliates that are bound by the obligations set forth in these Terms of Service.  You shall not use MGC Confidential Information for any purpose except to perform your obligations under these Terms of Service.  You agree to protect this confidential information by using the same degree of care, but no less than a reasonable degree of care, to prevent the use, dissemination, or publication of the confidential information as you use to protect your own confidential information of a like nature.  Nevertheless, no obligation is imposed upon you with respect to such confidential information which (a) was in your possession before receipt of the Service, (b) is or becomes a matter of public knowledge through no fault of yours; (c) is rightfully received by you from a third party without a duty of confidentiality; (d) is independently developed by you without reference to, and by persons which have not had access to, the Service or Associated Materials; or (e) is disclosed by you with MGC’s prior written approval.  You also may disclose such confidential information to the extent required to comply with governmental regulations and other applicable laws or to respond to subpoena or other compulsory legal process, provided in all cases that you take reasonable and lawful actions to avoid or minimize the extent of such disclosure and notify MGC in writing as far in advance of the date of disclosure as is reasonably feasible so that MGC may take steps to seek to prevent or limit disclosure.

 

9.         OWNERSHIP

 

You acknowledge that all intellectual property rights relating to the Service and the Associated Materials are, as between you and MGC, solely and exclusively owned by MGC.  All modifications, enhancements or changes to the Service and the Associated Materials are and shall remain the property of MGC or its licensors without regard to the origin of such modifications, enhancements or changes.  No ownership rights in the Service or Associated Materials are granted.  You may not transfer, assign, rent, lease, lend, copy, modify, translate, sublicense, time-share, or electronically transmit the Service or Associated Materials or copies thereof, in whole or in part, whether alone or combined with or integrated into other material, to any other person or entity.  Use of the Service by you does not grant you a license to MGC intellectual property or other rights of MGC, whether express, implied, by estoppel or otherwise, or grant you the right to make or have made any Service or Associated Materials or to use the Service or Associated Materials beyond the scope of these Terms of Service.  You will not challenge the ownership or rights in and to the Service and the Associated Materials, including without limitation all copyrights and other proprietary rights.  Nothing in these Terms of Service limits MGC’s ability to enforce its intellectual property rights.

 

10.       DISCLAIMER OF WARRANTY; LIMITATIONS OF LIABILITY

 

THE SERVICE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE BASIS” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND.  TO THE FULLEST EXTENT PERMITTED BY LAW, MGC, ITS AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, LICENSORS, AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION.  NO WARRANTY IS MADE THAT THE SERVICE WILL OPERATE IN AN ERROR FREE, UNINTERRUPTED OR COMPLETELY SECURE MANNER, IN COMBINATION WITH THIRD PARTY HARDWARE OR SOFTWARE PRODUCTS, OR THAT MGC’S SECURITY PROCEDURES AND MECHANISMS WILL PREVENT LOSS OR ALTERATION OF OR IMPROPER ACCESS TO INFORMATION OR DATA BY THIRD PARTIES.  YOU ACKNOWLEDGE THAT LICENSOR HAS NO CONTROL OVER THE SPECIFIC CONDITIONS UNDER WHICH YOU USE THE SERVICE.  ACCORDINGLY, MGC CANNOT AND DOES NOT WARRANT THE PERFORMANCE OF THE SERVICE OR ANY PARTICULAR RESULTS THAT MAY BE OBTAINED BY THE USE OF THE SERVICE.  THE SERVICE AND SUPPORT DO NOT REPLACE YOUR OBLIGATION TO EXERCISE YOUR INDEPENDENT JUDGMENT IN USING THE SERVICE.  MGC ASSUMES NO RESPONSIBILITIES WHATSOEVER WITH RESPECT TO DESIGN, DEVELOPMENT, REPRODUCTION, USE, DISTRIBUTION, DISPLAY, PERFORMANCE, IMPORTATION, LICENSE, SALE OR OTHER DISPOSITION BY YOU OR ANY OTHER PERSON OR ENTITY OF THE SERVICES OR ASSOCIATED MATERIALS.  YOU ASSUME THE ENTIRE RISK AS TO THE SERVICES AND ASSOCIATED MATERIALS.

 

TO THE FULLEST EXTEND ALLOWED BY LAW, IN NO EVENT SHALL MGC BE LIABLE, WHETHER IN CONTRACT, TORT, WARRANTY, OR UNDER ANY STATUTE (INCLUDING WITHOUT LIMITATION ANY TRADE PRACTICE, UNFAIR COMPETITION OR OTHER STATUTE OR REGULATION OF SIMILAR IMPORT) OR ON ANY OTHER BASIS FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, MULTIPLE OR CONSEQUENTIAL DAMAGES SUSTAINED BY YOU OR ANY OTHER PERSON OR ENTITY, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT MGC IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM OR RELATED TO THE RESULTS OBTAINED THROUGH THE USE OF THE SERVICE OR ASSOCIATED MATERIALS, LOSS OF USE, LOSS OF DATA, DOWNTIME, OR FOR LOSS OF REVENUE, PROFITS, GOODWILL, OR BUSINESS OR OTHER FINANCIAL LOSS.  IN ANY CASE, THE ENTIRE LIABILITY OF MGC AND ITS SUPPLIERS UNDER THESE TERMS OF USE, OR ARISING OUT OF THE USE OF THE SERVICE, SHALL NOT EXCEED IN THE AGGREGATE $100.

 

11.       INDEMNITY

 

A.        If a third party makes a claim against MGC for infringement of its intellectual property rights based on your use of the Service in connection with your data or information, then you will indemnify and hold us harmless from and against any and all claims, losses, damages, liabilities and expenses (including reasonable attorneys’ fees and other costs of defending and/or settling any action) that MGC may have to pay as a result of the claim.

 

B.        If you provide the results of your use of the Service to third parties, then you  (i) will be responsible, as between you and MGC, for such third parties’ use of those results in compliance with these Terms of Service and (ii) will defend, indemnify and hold MGC harmless from and against any and all claims, losses, damages, liabilities and expenses (including reasonable attorneys’ fees and other costs of defending and/or settling any action) that MGC may have to pay as a result of or arising from such third parties’ use of such results.

 

12.       US GOVERNMENT END USERS

 

The Service and Associated Materials are “Commercial Items,” as defined in 48 C.F.R. 2.101, consisting of Commercial Computer Software” and Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable.  Consistent with the foregoing provisions of the C.F.R., access to the Service and Associated Materials are provided to U.S. Government End Users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users under these Terms of Service.  All other rights, whether in copyright, patent, or trade secret, are reserved and no other rights are granted.

 

13.       EUROPEAN COMMUNITY END USERS

 

If the Service is used within a country of the European Community, nothing in these Terms of Service shall be construed as restricting any rights available under the European Community Software Directive, O.J. Eur. Comm. (No. L. 122) 42 (1991).

 

14.       EXPORT RESTRICTIONS

 

You agree to adhere to all applicable export control laws and regulations and will not export or re-export the Service or Associated Materials, in whole or in part, directly or indirectly, to any country to which such export or re-export is restricted by any laws or regulations of the U.S. or the country in which you obtained the Service or Associated Materials, or unless properly authorized by the U.S. Government or other applicable regulatory authority as provided by law or regulation.

 

15.       ASSIGNMENT

 

You may not sublicense, assign or transfer your rights in the Service or Associated Materials, in whole or in part.  Any attempted assignment or sublicense shall be void.

 

16.       MISCELLANEOUS

 

The site hosting the Service is located in the United States.  These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties irrevocably submit to the jurisdiction of the State and Federal Courts of the State of California in any action arising out of or relating to this Agreement.  If any provision of these Terms of Service shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions. No waiver of any term of these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and MGC’s failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. It is the express wish of the parties that these Terms of Service and all related documents be drawn up in English. C’est la volonté expresse des parties que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.  This document contains the entire agreement between you and MGC with respect to the subject matter hereof and supersedes all prior agreements between you and MGC concerning this subject matter.