Open Labs Products - Terms of Use
The terms set forth below (the "Agreement") govern your use of the
products designed as Open Lab Products ("OLP"). By using the OLP,
you expressly agree to be bound by this Agreement and to follow all
terms and applicable laws and regulations governing the
OLP. If you do not agree with this Agreement, your sole
recourse is not to use the OLP.
1. Priority
This
Agreement, in combination with Open Biosystem’s general Terms and
Conditions (http://www.openbiosystems.com/Terms) and Open Biosystem's
general Privacy Policy
(http://www.openbiosystems.com/Privacy%20Policy), set forth the terms
and conditions under which Open Biosystems makes the Products available
to you. In the event of an inconsistency between this Agreement
and either Open Biosystems' general Terms and Conditions or Privacy
Policy, this Agreement shall control.
2. Proper Use
The
OLP are the property of Open Biosystems and/or its suppliers and is
protected by U.S. and international intellectual property
laws. Accordingly, you agree that you will not copy,
reproduce, alter, modify or create derivative products (except for your
own personal, non-commercial use) from the OLP. Furthermore, the
OLP is provided to you for your own personal use, and it may not be
used for any commercial purposes. For example, you may not do any
of the following: sell the OLP as a product or service; use the OLP for
commercial reasons, such as a therapeutic or diagnostic; take the
results from the OLP and reformat and display them without
acknowledging the proper developers of the OLP. If you wish
to use any portion of the OLP for commercial purposes, please contact
us for more information. Any use of the OLP that infringes upon
Open Biosystems's intellectual property rights or that is for
commercial purposes will be investigated and Open Biosystems shall have
the right to take appropriate civil and criminal legal action.
3. User Contributions and Privacy
There
are many opportunities by utilizing the OLP for you to actively
participate in the continued development of the resource.
In the process of doing so, you may provide certain comments,
suggestions, data, or other information to Open Biosystems
(collectively "Information"). Open Biosystems shall have
the right to retain and use any such Information in current or future
products or services, without further compensation to you.
To the extent such Information is protectable under intellectual
property laws, you agree to cooperate with Open Biosystems as needed to
obtain such protection as Open Biosystems may desire and you agree that
Open Biosystems has under conditions standard within the industry,
first rights of refusal to license, in the research field, the
resulting intellectual property.
4. No Warranty
Please
note that the products and services provided as part of these OLPs are
experimental in nature. They have not been tested in any
manner, and Open Biosystems does not represent that they are reliable,
accurate, complete, or otherwise valid. ACCORDINGLY, THE OLP IS
PROVIDED "AS IS" WITH NO WARRANTY OF ANY KIND AND YOU USE THE PRODUCT
AT YOUR OWN RISK. OPEN BIOSYSTEMS EXPRESSLY DISCLAIMS ANY
WARRANTY, EXPRESS OR IMPLIED, REGARDING THE OLP OR ITS USE, INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NON-INFRINGEMENT.
5. Limitation of Liability
UNDER
NO CIRCUMSTANCES WILL OPEN BIOSYSTEMS BE LIABLE TO YOU FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
ARISING OUT OF OR IN CONNECTION WITH USE OF THE OLP, WHETHER OR NOT
OPEN BIOSYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. UNDER NO CIRCUMSTANCES SHALL OPEN BIOSYSTEMS BE LIABLE
TO YOU FOR ANY AMOUNT.
6. Release and Waiver
To
the maximum extent permitted by applicable law, you hereby release, and
waive all claims against Open Biosystems and its employees and agents
from any and all liability for claims, damages (actual and
consequential), costs and expenses (including litigation costs and
attorneys' fees) of every kind and nature, arising out of or in any way
connected with use of the OLP. If you are a California resident,
you waive your rights under California Civil Code § 1542, which states,
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor." Residents of other states and nations
similarly waive their rights under applicable and/or analogous laws,
statutes, or regulations.
7. Modifications of Terms
Open
Biosystems shall have the right to modify the terms of this Agreement
at any time, which modification shall be effective immediately upon
posting to the OLP Terms & Conditions webpage. Accordingly,
we suggest that you check this page periodically. To make your
review more convenient, we will post a version number or date at the
bottom of this page.
8. Violations of Terms
In
addition to any legal remedies that Open Biosystems may have for your
violation of the terms of this Agreement, Open Biosystems shall also
have the right in its sole discretion to suspend or terminate your
access to the OLP.
9. Hold Harmless and Indemnity
You
agree to hold harmless and indemnify Open Biosystems, and its
employees, agents and representatives, from and against any third party
claim arising from or in any way related to your use of the OLP,
including any liability or expense arising from all claims, losses,
damages (actual and consequential), suits, judgments, litigation costs
and attorneys' fees, of every kind and nature. In such a case,
Open Biosystems will provide you with written notice of such claim,
suit or action.
10. No Assignment
You shall
not assign this Agreement or assign any rights or delegate any
obligations hereunder, in whole or in part, whether voluntarily or by
operation of law, without Open Biosystems' prior written consent.
Any such purported assignment or delegation by you without Open
Biosystems' prior written consent will be null and void and of no force
or effect, unless otherwise expressly consented to by Open Biosystems
at its sole and absolute discretion.
11. Relationship of the Parties
Notwithstanding
any provision hereof, for all purposes of this Agreement each party
shall be and act as an independent contractor and not as partner, joint
venturer, agent, employee or employer of the other and shall not bind
nor attempt to bind the other to any contract.
12. Arbitration
Any
controversy or claim arising out of or relating to this Agreement shall
be settled by binding arbitration in accordance with the commercial
arbitration rules of the American Arbitration Association. Any
such controversy or claim shall be arbitrated on an individual basis,
and shall not be consolidated in any arbitration with any claim or
controversy of any other party. The decision of the arbitrator
shall be final and unappealable. The arbitration shall be
conducted in Huntsville, Alabama and judgment on the arbitration award
may be entered into any court having jurisdiction thereof.
Notwithstanding anything to the contrary, Open Biosystems may at any
time seek injunctions or other forms of equitable relief from any court
of competent jurisdiction.
13. Miscellaneous
If
any provision of this Agreement is held to be invalid or unenforceable,
such provision shall be deemed superseded by a valid enforceable
provision that most closely matches the intent of the original
provision and the remaining provisions shall be enforced. Open
Biosystems' failure to act with respect to a breach by you or others
does not waive Open Biosystems' right to act with respect to subsequent
or similar breaches. The failure of Open Biosystems to exercise
or enforce any right or provision of these terms and conditions shall
not constitute a waiver of such right or provision. The section
headings and subheadings contained in this Agreement are included for
convenience only, and shall not limit or otherwise affect the terms of
this Agreement. This agreement shall be interpreted in accordance
with the laws of the State of Alabama as if made in Alabama by two
residents of that state. This Agreement constitutes the entire
agreement between Open Biosystems and you with respect to the subject
matter hereof.
Last updated 2/05/06
