Insilico Medicine
Corporate terms and conditions for Chemistry42 subscription
Effective Date: May 24, 2024
Thank you for choosing Chemistry42®. These Terms and Conditions ("Terms" or "Agreement") are a legal agreement between your organization and InSilico Medicine Canada Inc. ("Insilico" or "we) and govern your use of all the Chemistry42 software, including all of the text, data, information, graphics, photographs and more that we and our Affiliates may make available to you (all of which we refer to as "Subscription"), including any services that we may provide through online assistance or otherwise ("Service(s)"). Your organization and Insilico are each a "Party", and collectively the "Parties" to these Terms.
You are entering into these Terms on behalf of your company or other organization. You hereby represent and warrant that you are an authorized representative of your organization with proper authority to enter into these Terms on behalf of your organization ("Authorized User").
You are entering into these Terms on behalf of your company or other organization. You hereby represent and warrant that you are an authorized representative of your organization with proper authority to enter into these Terms on behalf of your organization ("Authorized User").
READ THESE TERMS CAREFULLY BEFORE ACCESSING THE SUBSCRIPTION. BY CLICKING THE "I AGREE" BUTTON, YOU AGREE THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS ON BEHALF OF YOUR ORGANZATION. ONCE ACCEPTED, THESE TERMS WILL BE BINDING ON YOUR ORGANIZATION. YOU FURTHER REPRESENT THAT YOUR ORGANIZATION SHALL BE RESPONSIBLE AND LIABLE FOR ANY BEHAVIOR OF YOUR CORPORATE ACCOUNT (INCLUDING WITHOUT LIMITATION ANY BREACH OF THE END USER TERMS AND CONDITIONS FOR CHEMISTRY42 SUBSCRIPTION ("END USER TERMS") ENTERED INTO BY YOUR PERMITTED USERS), WHETHER CONDUCTED BY PERMITTED USERS OF YOUR ORGANIZATION OR OTHERWISE. ANY ACTIVITY FROM YOUR ORGANIZATION'S ACCOUNT WILL BE DEEMED BEHABIOR OF YOUR PERMITTED USERS REGARDLESS OF WHETHER A LEGAL AUTHORIZATION FROM YOUR ORGANIZATION IS PROPERTLY GIVEN TO SUCH USER. PLEASE MAKE SURE YOU STORE YOUR LOG IN CREDENTIALS IN A SUFFICIENTLY SAFE WAY TO PROTECT YOUR DATA AND ANY OTHER TYPES OF CONFIDENTIAL INFORMATION. NEITHER YOU NOR ANY OF THE USERS OF YOUR ORGANIZATION WILL HAVE ACCESS THE SUBSCRIPTION OR USE ANY SERVICES IF YOU DO NOT ACCEPT THESE TERMS.
The capitalized terms below shall have the following meanings for purposes of this Agreement:
1.1 "Affiliate" of an organization means any other organization that directly or indirectly Controls, is Controlled by, or is under common Control with, the first organization.
1.2 "Control" over an organization means (a) owning 50% or more of the voting securities or ownership interests of the organization or (b) having the power to direct the management or policies of the organization.
1.3 "Insilico Content" means the forms, user manuals and other support and informational materials provided or collected by Insilico for use in connection with the Subscription, as may be modified from time to time by Insilico.
1.4 "Intellectual Property Right" means any patent application, patent, copyright, moral right, database right, trademark right, trade secret or other intellectual property or proprietary right recognized or enforceable under any national, local or international law.
1.5 "Commercial License Order" means any order created and accepted by an Authorized User of your organization under these Terms on our website that generates Tokens for the use of the Subscription by any permitted users of your organization during certain period of time.
1.6 "Subscriber Data" as used in this Agreement means the electronic data and files entered, imported, uploaded or transferred into the Subscription by any permitted users of your organization, excluding any Insilico Content.
1.7 "Privacy Policy" means the Chemistry42 Privacy Policy available at https://insilico.com/chemistry42/privacy.
1.8 "Token" is a measure of how many experiments the users from your organization can run at the same time (different experiment settings may require a different number of tokens). For clarity, more Tokens allow users in your organization to run more experiments at the same time during the Subscription Period.
1.1 "Affiliate" of an organization means any other organization that directly or indirectly Controls, is Controlled by, or is under common Control with, the first organization.
1.2 "Control" over an organization means (a) owning 50% or more of the voting securities or ownership interests of the organization or (b) having the power to direct the management or policies of the organization.
1.3 "Insilico Content" means the forms, user manuals and other support and informational materials provided or collected by Insilico for use in connection with the Subscription, as may be modified from time to time by Insilico.
1.4 "Intellectual Property Right" means any patent application, patent, copyright, moral right, database right, trademark right, trade secret or other intellectual property or proprietary right recognized or enforceable under any national, local or international law.
1.5 "Commercial License Order" means any order created and accepted by an Authorized User of your organization under these Terms on our website that generates Tokens for the use of the Subscription by any permitted users of your organization during certain period of time.
1.6 "Subscriber Data" as used in this Agreement means the electronic data and files entered, imported, uploaded or transferred into the Subscription by any permitted users of your organization, excluding any Insilico Content.
1.7 "Privacy Policy" means the Chemistry42 Privacy Policy available at https://insilico.com/chemistry42/privacy.
1.8 "Token" is a measure of how many experiments the users from your organization can run at the same time (different experiment settings may require a different number of tokens). For clarity, more Tokens allow users in your organization to run more experiments at the same time during the Subscription Period.
2.1 Subscription and Insilico Content. Subject to the terms and conditions set forth in this Agreement and subject to the full payment of the subscription fees. Any permitted users of your organization may use the Subscription solely for your organization's and its Affiliate's internal drug discovery, and use the Insilico Content solely to support the use of the Subscription under this Agreement. You shall not use the Subscription for any other purposes, including for your personal benefits or for the benefits of any third party (for example, providing services to third parties or reselling to third parties).
2.2 Insilico Services. Insilico shall use reasonable commercial efforts to host, support and maintain the Subscription in order to keep it running and functional. Insilico may delegate such Services in relation to the Subscription in whole or in part to one or more of its Affiliates. Insilico may include periodic updates to the Subscription to improve its features and increase user friendliness.
2.3 Third-Party Products and Services. Insilico may enable or allow access to products, Services and websites provided by other persons or entities (each, a "Third-Party Product"). Insilico does not make any representation regarding or endorse any Third-Party Product. Insilico shall have no obligation or liability relating to any Third-Party Product.
2.2 Insilico Services. Insilico shall use reasonable commercial efforts to host, support and maintain the Subscription in order to keep it running and functional. Insilico may delegate such Services in relation to the Subscription in whole or in part to one or more of its Affiliates. Insilico may include periodic updates to the Subscription to improve its features and increase user friendliness.
2.3 Third-Party Products and Services. Insilico may enable or allow access to products, Services and websites provided by other persons or entities (each, a "Third-Party Product"). Insilico does not make any representation regarding or endorse any Third-Party Product. Insilico shall have no obligation or liability relating to any Third-Party Product.
3.1 Configuration and Use. Your organization may not allow any other person or entity to use or access the Subscription or Insilico Content on your organization's behalf. Use of the Subscription and Insilico Content under this Agreement is limited to internal users authorized by your organization and duly provided with the account information of your organization. You shall and shall ensure that any permitted users of your organization comply with the Acceptable Use Policy set out in Appendix I hereto. Any of inappropriate conducts, breach of these Terms, violation of any law or regulation or infringe on the rights of third parties while accessing the Subscription by a permitted user of your organization may result in personal liability as well as your organization being jointly liable for such behavior.
3.2 Data Validity. Subject to Insilico's compliance with Section 4 of this Agreement, you shall ensure that the use of any Subscriber Data by any permitted users of your organization complies with applicable laws and regulations, including any required notices, consents, approvals or permits. Permitted users of your organization may only upload data to the Subscription ("Uploaded Data") for which a legal authorization and/or consent is given and for which the Subscription has a legal right of processing. You shall ensure that the Uploaded Data shall be procured, utilized, stored and transferred in accordance with relevant laws and regulations, and provide Insilico with reasonable proofs evidencing the compliance with laws and regulations upon Insilico's request three (3) days prior hereto. Where any permitted users or your organization intends to disclose to Insilico and its Affiliates or grant Insilico and its Affiliates access to any Uploaded Data for Insilico and its Affiliates to perform the Services, your organization is obliged to satisfy the prerequisites required by laws (including but not limited to, to obtain explicit consents from the owners of the Uploaded Data, to conduct safety assessment, to report or make filings to any regulatory authorities, where applicable) so as to enable Insilico and its Affiliates to process such Uploaded Data in a way compliant with applicable laws and regulations. No permitted users of your organization may disclose to Insilico and its Affiliates or grant Insilico and its Affiliates access to such Uploaded Data without being granted such approval, permit or undergoing necessary scrutiny process and your organization or its permitted users will be solely responsible for obtaining such approval or permit or going through necessary processes.
3.3 Privacy Policy. The use of the Subscription hereunder by any permitted users of your organization shall at all times comply with the Privacy Policy.
3.2 Data Validity. Subject to Insilico's compliance with Section 4 of this Agreement, you shall ensure that the use of any Subscriber Data by any permitted users of your organization complies with applicable laws and regulations, including any required notices, consents, approvals or permits. Permitted users of your organization may only upload data to the Subscription ("Uploaded Data") for which a legal authorization and/or consent is given and for which the Subscription has a legal right of processing. You shall ensure that the Uploaded Data shall be procured, utilized, stored and transferred in accordance with relevant laws and regulations, and provide Insilico with reasonable proofs evidencing the compliance with laws and regulations upon Insilico's request three (3) days prior hereto. Where any permitted users or your organization intends to disclose to Insilico and its Affiliates or grant Insilico and its Affiliates access to any Uploaded Data for Insilico and its Affiliates to perform the Services, your organization is obliged to satisfy the prerequisites required by laws (including but not limited to, to obtain explicit consents from the owners of the Uploaded Data, to conduct safety assessment, to report or make filings to any regulatory authorities, where applicable) so as to enable Insilico and its Affiliates to process such Uploaded Data in a way compliant with applicable laws and regulations. No permitted users of your organization may disclose to Insilico and its Affiliates or grant Insilico and its Affiliates access to such Uploaded Data without being granted such approval, permit or undergoing necessary scrutiny process and your organization or its permitted users will be solely responsible for obtaining such approval or permit or going through necessary processes.
3.3 Privacy Policy. The use of the Subscription hereunder by any permitted users of your organization shall at all times comply with the Privacy Policy.
4.1 Insilico and its Affiliates shall not use and disclose Subscriber Data except for (i) the purpose of providing the Subscription and related Services under this Agreement; (ii) permitted by your organization; or (iii) required by applicable laws and regulations. Insilico and its Affiliates may not access to any Uploaded Data without the written consent from your organization and completion of any required procedures with the government agency (if any). Notwithstanding anything to the contrary in this Agreement:
(a) Insilico and its Affiliates may use and disclose Subscriber Data as reasonably necessary to comply with applicable laws and regulations.
(b) To the extent permitted by applicable laws and regulations, Insilico and its Affiliates may derive or create from Subscriber Data benchmarking, transactional or performance information and other forms of statistics or analytics on an aggregated basis that may not reasonably be used on its own to distinguish or trace the identity of the individual users or your organization (collectively, "Analytics").
(c) Insilico and its Affiliates may collect the Subscription usage information and/or user behavior (i.e. number of active usage in a certain period of time) for account management and record keeping purpose. Such Subscription usage information shall be deemed part of Insilico Content.
(d) Nothing in this Agreement prohibits Insilico and its Affiliates from using Subscriber Data that: (i) is or becomes publicly available except through violation of this Agreement by Insilico or its Affiliates; (ii) is or was received by Insilico or its Affiliates from a third party that to their knowledge is not under a confidentiality obligation with respect to the Subscriber Data; or (iii) is or was previously known to or independently developed by Insilico or its Affiliates without use of the Subscriber Data.
4.2 Insilico and its Affiliates will delete all Uploaded Data and your account information upon (i) six (6) months after the organization cancels the subscription (including automatic cancellation if no Token is active in the account of your organization) if at least one Token has been purchased within one (1) month after account onboarding, or (ii) one (1) month after completion of account onboarding if no Token has been purchased ever since the completion of account onboarding, or early termination of the Subscription. If you wish to have your Uploaded Data deleted earlier, you may do so by having an Authorized User of your organization send a written request to chemistry42@insilico.com. For further clarity, support requests from your organization and any communication between your organization (including its permitted users) and Insilico and/or any record of activities performed in correspondence to such support requests do not need to be deleted or destroyed by Insilico, and can be further accessed by Insilico or its Affiliates for possible improvements of certain features of the Subscription or otherwise, but shall not be shared with any third parties for any commercial purposes.
(a) Insilico and its Affiliates may use and disclose Subscriber Data as reasonably necessary to comply with applicable laws and regulations.
(b) To the extent permitted by applicable laws and regulations, Insilico and its Affiliates may derive or create from Subscriber Data benchmarking, transactional or performance information and other forms of statistics or analytics on an aggregated basis that may not reasonably be used on its own to distinguish or trace the identity of the individual users or your organization (collectively, "Analytics").
(c) Insilico and its Affiliates may collect the Subscription usage information and/or user behavior (i.e. number of active usage in a certain period of time) for account management and record keeping purpose. Such Subscription usage information shall be deemed part of Insilico Content.
(d) Nothing in this Agreement prohibits Insilico and its Affiliates from using Subscriber Data that: (i) is or becomes publicly available except through violation of this Agreement by Insilico or its Affiliates; (ii) is or was received by Insilico or its Affiliates from a third party that to their knowledge is not under a confidentiality obligation with respect to the Subscriber Data; or (iii) is or was previously known to or independently developed by Insilico or its Affiliates without use of the Subscriber Data.
4.2 Insilico and its Affiliates will delete all Uploaded Data and your account information upon (i) six (6) months after the organization cancels the subscription (including automatic cancellation if no Token is active in the account of your organization) if at least one Token has been purchased within one (1) month after account onboarding, or (ii) one (1) month after completion of account onboarding if no Token has been purchased ever since the completion of account onboarding, or early termination of the Subscription. If you wish to have your Uploaded Data deleted earlier, you may do so by having an Authorized User of your organization send a written request to chemistry42@insilico.com. For further clarity, support requests from your organization and any communication between your organization (including its permitted users) and Insilico and/or any record of activities performed in correspondence to such support requests do not need to be deleted or destroyed by Insilico, and can be further accessed by Insilico or its Affiliates for possible improvements of certain features of the Subscription or otherwise, but shall not be shared with any third parties for any commercial purposes.
5.1 Fees and Expenses. Unless otherwise agreed by Insilico in writing, payment for Token and any other Services and expenses (if any) shall be received in full by Insilico before Insilico activates your account. All fees paid under this Agreement are non-refundable except as expressly provided in this Agreement.
5.2 Price Change. We reserve the right to change the pricing under this Agreement with a three (3)-month prior written notice to your organization. Your continued Subscription and payment after the effective date of the price change shall be deemed acceptance of the new pricing. For clarity, new pricing shall not affect the then current active Token(s) that have been paid for regardless of whether the then remaining time in the Subscription Period under such Token(s) extends beyond three (3) months.
5.3 Taxes. Your organization shall bear and pay all sales, value-added or other similar taxes and withholding taxes (if any) relating to the Subscription or any other product or Service provided by Insilico. The fees of the Tokens and any applicable Services (if any) listed in an Commercial License Order are exclusive of taxes, and Insilico shall have the right to charge taxes (if applicable) together with or separately from the fees payable by your organization. For the avoidance of doubt, your organization shall not be responsible for Insilico's income tax in Canada and any other jurisdiction where Insilico is a tax resident.
5.2 Price Change. We reserve the right to change the pricing under this Agreement with a three (3)-month prior written notice to your organization. Your continued Subscription and payment after the effective date of the price change shall be deemed acceptance of the new pricing. For clarity, new pricing shall not affect the then current active Token(s) that have been paid for regardless of whether the then remaining time in the Subscription Period under such Token(s) extends beyond three (3) months.
5.3 Taxes. Your organization shall bear and pay all sales, value-added or other similar taxes and withholding taxes (if any) relating to the Subscription or any other product or Service provided by Insilico. The fees of the Tokens and any applicable Services (if any) listed in an Commercial License Order are exclusive of taxes, and Insilico shall have the right to charge taxes (if applicable) together with or separately from the fees payable by your organization. For the avoidance of doubt, your organization shall not be responsible for Insilico's income tax in Canada and any other jurisdiction where Insilico is a tax resident.
6.1 Subscription Period. The subscription period under this Agreement (the "Subscription Period") shall be the time period when there is at least one active Token with your account. Upon expiration of the Subscription Period, your right to access and use the Subscription pursuant to the Commercial License Order expires.
6.2 Termination for Cause.
(a) Either Party (the "Non-Breaching Party") may terminate this Agreement upon written notice to the other Party (the "Breaching Party") if the Breaching Party does not cure its material breach of the Agreement within thirty (30) days of written notice from the Non-Breaching Party stating its intent to terminate and describing the breach with reasonable particularity.
(b) Either Party may terminate this Agreement upon written notice in the event of filing of a petition in bankruptcy of the other Party, or commencement of a receivership or similar proceeding based on the insolvency of the other Party.
(c) Any Authorized User may cancel subscription at any time by providing written notice to Insilico. If such notice is properly given, Subscription will terminate upon expiry of the current Subscription Period. If you request immediate termination of the Subscription with your account, such request needs to be specified in the abovementioned cancellation notice. No refund will be provided if you request immediate termination within the Subscription Period.
6.3 Effect of Termination. Upon termination or expiration of this Agreement, all rights and licenses granted by a Party under the Agreement immediately terminate, and each permitted user of your organization shall immediately cease use of the Subscription and Insilico Content. Termination by either Party will not relieve the other Party of its obligations and liabilities due before or in connection with the termination, and all payments made by such other Party prior to the termination will not be refunded. Sections 6.3, 7, 8.1, 8.2, 10, 11 and 12 and the provisions that by their terms naturally survive shall survive expiration or termination of the Agreement.
6.2 Termination for Cause.
(a) Either Party (the "Non-Breaching Party") may terminate this Agreement upon written notice to the other Party (the "Breaching Party") if the Breaching Party does not cure its material breach of the Agreement within thirty (30) days of written notice from the Non-Breaching Party stating its intent to terminate and describing the breach with reasonable particularity.
(b) Either Party may terminate this Agreement upon written notice in the event of filing of a petition in bankruptcy of the other Party, or commencement of a receivership or similar proceeding based on the insolvency of the other Party.
(c) Any Authorized User may cancel subscription at any time by providing written notice to Insilico. If such notice is properly given, Subscription will terminate upon expiry of the current Subscription Period. If you request immediate termination of the Subscription with your account, such request needs to be specified in the abovementioned cancellation notice. No refund will be provided if you request immediate termination within the Subscription Period.
6.3 Effect of Termination. Upon termination or expiration of this Agreement, all rights and licenses granted by a Party under the Agreement immediately terminate, and each permitted user of your organization shall immediately cease use of the Subscription and Insilico Content. Termination by either Party will not relieve the other Party of its obligations and liabilities due before or in connection with the termination, and all payments made by such other Party prior to the termination will not be refunded. Sections 6.3, 7, 8.1, 8.2, 10, 11 and 12 and the provisions that by their terms naturally survive shall survive expiration or termination of the Agreement.
7.1 Confidential Information Defined. "Confidential Information" as used in this Agreement includes, without limitation, any information and data that during the Term is disclosed by your organization or us (including our Affiliate) (the "Disclosing Party") to the other Party or its Affiliate (the "Receiving Party") and at the time of disclosure: (i) is designated in writing as "Confidential" or (ii) can be reasonably perceived by the Receiving Party as confidential.
7.2 Obligations. Except as approved by the Disclosing Party in writing, the Receiving Party shall not: (i) use the Confidential Information of the Disclosing Party except to perform or exercise its rights and obligations under this Agreement; or (ii) disclose the Confidential Information of the Disclosing Party to any third party except to the Receiving Party's Affiliates, contractors, agents, directors, officers or employees (each, a "Representative") who are under a duty to use and disclose the Confidential Information only as permitted under this Agreement. The Receiving Party shall be responsible for any use by its Representative of the Confidential Information it discloses to its Representative. Upon termination or expiration of the Agreement, each Party shall cease use of, and within thirty (30) days of such termination or expiration shall destroy or return, all Confidential Information of the other Party, except that: (a) each Party may retain Confidential Information as required to comply with its obligations under applicable laws or regulations; and (b) Confidential Information may be stored on secured backup media that are destroyed no more than twelve (12) months after the month in which the Agreement terminates or expires.
7.3 Exceptions. Neither Party's obligations under this Section 7 apply to: (i) information which is or becomes publicly available except through any act or omission of the Receiving Party in violation of a duty to the Disclosing Party; (ii) information received by the Receiving Party from a third party that to the Receiving Party's knowledge is not under a confidentiality obligation with respect to the Confidential Information; or (iii) information previously known to or independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information. The Receiving Party may disclose Confidential Information in accordance with a subpoena, judicial or other governmental order, or requirement of any law, regulation or the rules of any applicable stock exchange, provided that where legally permissible the Receiving Party must give the Disclosing Party reasonable written notice prior to such disclosure and provide reasonable cooperation in seeking confidential treatment for the Confidential Information.
7.4 Publicity. Notwithstanding anything to the contrary, you hereby grant us an authorization to include the name and logo of your organization, as well as the general nature of the business relationship (i.e. AI software subscription under this Agreement) in our list of business partners and/or clients for the purpose of company introductory or promotional activities. This term survives the expiration or termination of the Subscription Period. You may choose to opt out the grant of this authorization to us by sending us a prior written notice specifying the same.
7.2 Obligations. Except as approved by the Disclosing Party in writing, the Receiving Party shall not: (i) use the Confidential Information of the Disclosing Party except to perform or exercise its rights and obligations under this Agreement; or (ii) disclose the Confidential Information of the Disclosing Party to any third party except to the Receiving Party's Affiliates, contractors, agents, directors, officers or employees (each, a "Representative") who are under a duty to use and disclose the Confidential Information only as permitted under this Agreement. The Receiving Party shall be responsible for any use by its Representative of the Confidential Information it discloses to its Representative. Upon termination or expiration of the Agreement, each Party shall cease use of, and within thirty (30) days of such termination or expiration shall destroy or return, all Confidential Information of the other Party, except that: (a) each Party may retain Confidential Information as required to comply with its obligations under applicable laws or regulations; and (b) Confidential Information may be stored on secured backup media that are destroyed no more than twelve (12) months after the month in which the Agreement terminates or expires.
7.3 Exceptions. Neither Party's obligations under this Section 7 apply to: (i) information which is or becomes publicly available except through any act or omission of the Receiving Party in violation of a duty to the Disclosing Party; (ii) information received by the Receiving Party from a third party that to the Receiving Party's knowledge is not under a confidentiality obligation with respect to the Confidential Information; or (iii) information previously known to or independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information. The Receiving Party may disclose Confidential Information in accordance with a subpoena, judicial or other governmental order, or requirement of any law, regulation or the rules of any applicable stock exchange, provided that where legally permissible the Receiving Party must give the Disclosing Party reasonable written notice prior to such disclosure and provide reasonable cooperation in seeking confidential treatment for the Confidential Information.
7.4 Publicity. Notwithstanding anything to the contrary, you hereby grant us an authorization to include the name and logo of your organization, as well as the general nature of the business relationship (i.e. AI software subscription under this Agreement) in our list of business partners and/or clients for the purpose of company introductory or promotional activities. This term survives the expiration or termination of the Subscription Period. You may choose to opt out the grant of this authorization to us by sending us a prior written notice specifying the same.
8.1 Insilico IP Ownership. Insilico retains ownership of and reserves all Intellectual Property Rights in or related to the Subscription, Insilico Content or Analytics (collectively, "Insilico IP"). Insilico does not convey to your organization or its permitted users any Intellectual Property Right in any Insilico IP except for the non-exclusive right to use the Subscription and Insilico Content as set forth in this Agreement. You agree further that Insilico is free to use and incorporate into Insilico IP any comment or feedback provided by any permitted users of your organization, and that such use or incorporation does not create or give rise to any Intellectual Property Right of your organization in Insilico IP.
8.2 Subscriber IP Ownership. Your organization retain ownership of and reserves (i) all Intellectual Property Rights in or related to the Subscriber Data or any other materials, communications or content that Subscriber or its Affiliate or User supplies for use in connection with the Subscription and (ii) all Intellectual Property Rights conceived or created by permitted users of your organization in using the Subscription (collectively, "Subscriber IP"). Your organization does not convey to Insilico any Intellectual Property Right in any Subscriber IP, except as expressly set forth in this Agreement.
8.3 Subscriber IP License. Your organization grants Insilico a non-exclusive, non-sublicensable right during the Term to use, copy and create derivative works of the Subscriber IP only to perform its obligations under or as otherwise set forth in this Agreement.
8.2 Subscriber IP Ownership. Your organization retain ownership of and reserves (i) all Intellectual Property Rights in or related to the Subscriber Data or any other materials, communications or content that Subscriber or its Affiliate or User supplies for use in connection with the Subscription and (ii) all Intellectual Property Rights conceived or created by permitted users of your organization in using the Subscription (collectively, "Subscriber IP"). Your organization does not convey to Insilico any Intellectual Property Right in any Subscriber IP, except as expressly set forth in this Agreement.
8.3 Subscriber IP License. Your organization grants Insilico a non-exclusive, non-sublicensable right during the Term to use, copy and create derivative works of the Subscriber IP only to perform its obligations under or as otherwise set forth in this Agreement.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, INSILICO DOES NOT MAKE AND EXPRESSLY DISCLAIMS ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING AT COMMON LAW, OR OTHERWISE RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING THE SUBSCRIPTION, INSILICO CONTENT AND ANY SERVICES PROVIDED UNDER THE AGREEMENT. WITHOUT WAIVING THE GENERALITY OF THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, INSILICO DOES NOT MAKE AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, DATA OR SYSTEM INTEGRITY, AVAILABILITY, TIMELINESS, COMPLETENESS, NON-INFRINGEMENT, OR THAT THE SUBSCRIPTION WILL PERFORM WITHOUT INTERRUPTION OR ERROR FREE, AND ANY WARRANTY REGARDING THE USE OF THE SUBSCRIPTION, DATA OR INFORMATION ACCESSIBLE THEREFROM, ANY DECISION MADE USING THE SUBSCRIPTION, UNAUTHORIZED ACCESS TO THE SUBSCRIPTION, OR the USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SUBSCRIPTION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INSILICO MAY MAKE CHANGES TO THE SUBSCRIPTION FROM TIME TO TIME AND THOSE CHANGES SHALL NOT BE DEEMED TO GIVE RISE TO BREACH OF WARRANTY OR LIABILITY OF INSILICO.
10.1 Insilico Indemnification. Insilico shall defend your organization from and against any third-party claim, demand, lawsuit or legal action: (i) alleging that the Insilico IP infringes or violates an Intellectual Property Right of a third party; (ii) arising from Insilico's failure to perform under Section 4 (SUBSCRIBER DATA); or (iii) arising from Insilico's violation of its obligations under this Agreement with respect to Confidential Information (each of (i), (ii) and (iii), an "Insilico Indemnified Claim"), and indemnify your organization against any direct damages in connection with an Insilico Indemnified Claim, except to the extent that such Insilico Indemnified Claim arise from: (i) the use of the Subscription by any permitted users of your organization not in accordance with this Agreement or written policies and guidelines Insilico has made available to you reasonably in advance; or (ii) any permitted user's failure to follow reasonable support or maintenance instructions provided by Insilico.
10.2 User Indemnification. Your organization shall defend Insilico and its Affiliates and their employees, officers, directors and agents (each, an "Insilico Indemnitee") from and against any third-party claim, demand, administrative penalty, lawsuit or legal action: (i) alleging that Subscriber IP infringes or violates an Intellectual Property Right of a third party; (ii) arising from any matter for which your organization is responsible under Section 3 (YOUR RESPONSIBILITIES); or (iii) arising from violation by any permitted users of your organization of their obligations under this Agreement and the End User Terms with respect to Confidential Information (each of (i), (ii) and (iii), a "Subscriber Indemnified Claim"), and indemnify each Insilico Indemnitee against any direct damages in connection with a Subscriber Indemnified Claim.
10.3 Indemnification Conditions.
(a) As a condition of any Party's duty to defend or indemnify under this Section 10, the person or entity seeking defense or indemnification must: (i) give the indemnifying Party prompt written notice of the applicable claim, demand or legal action; (ii) allow the indemnifying Party sole control of the defense and settlement; and (iii) reasonably cooperate in the defense and settlement at the indemnifying Party's cost, except that the indemnified person or entity will not be required to make any settlement payment unless the indemnifying Party agrees to include that payment as an indemnified expense.
(b) In the event of any claim, demand, legal action or notice alleging infringement of Insilico IP, Insilico may either: (i) replace or modify the Insilico IP in whole or in part in a manner that does not materially degrade the Subscription; (ii) obtain a license or other grant necessary to continue to provide the Insilico IP in accordance with the Agreement, or (iii) terminate the Agreement upon written notice to your organization, in which case, Insilico' sole liability will be its obligations to provide a refund to the original payment method of your account of any pre-paid fees for the period after the termination.
10.2 User Indemnification. Your organization shall defend Insilico and its Affiliates and their employees, officers, directors and agents (each, an "Insilico Indemnitee") from and against any third-party claim, demand, administrative penalty, lawsuit or legal action: (i) alleging that Subscriber IP infringes or violates an Intellectual Property Right of a third party; (ii) arising from any matter for which your organization is responsible under Section 3 (YOUR RESPONSIBILITIES); or (iii) arising from violation by any permitted users of your organization of their obligations under this Agreement and the End User Terms with respect to Confidential Information (each of (i), (ii) and (iii), a "Subscriber Indemnified Claim"), and indemnify each Insilico Indemnitee against any direct damages in connection with a Subscriber Indemnified Claim.
10.3 Indemnification Conditions.
(a) As a condition of any Party's duty to defend or indemnify under this Section 10, the person or entity seeking defense or indemnification must: (i) give the indemnifying Party prompt written notice of the applicable claim, demand or legal action; (ii) allow the indemnifying Party sole control of the defense and settlement; and (iii) reasonably cooperate in the defense and settlement at the indemnifying Party's cost, except that the indemnified person or entity will not be required to make any settlement payment unless the indemnifying Party agrees to include that payment as an indemnified expense.
(b) In the event of any claim, demand, legal action or notice alleging infringement of Insilico IP, Insilico may either: (i) replace or modify the Insilico IP in whole or in part in a manner that does not materially degrade the Subscription; (ii) obtain a license or other grant necessary to continue to provide the Insilico IP in accordance with the Agreement, or (iii) terminate the Agreement upon written notice to your organization, in which case, Insilico' sole liability will be its obligations to provide a refund to the original payment method of your account of any pre-paid fees for the period after the termination.
11.1 IN NO EVENT WILL EITHER YOUR ORGANIZATION OR WE HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, INTENTIONAL OR UNINTENTIONAL TORT, OR ANY OTHER LEGAL THEORY, FOR LOST REVENUE, LOST PROFITS, LOST DAMAGES, LOSS OF DATA, LOSS OF USE, ANY CLAIM OR ACTION OF ANY THIRD PARTY EXCEPT UNDER SECTION 10 (INDEMNIFICATION) OF THIS AGREEMENT, OR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER OR NOT EITHER PARTYMAY HAVE ANTICIPATED OR BEEN ADVISED OF SUCH DAMAGES.
11.2 THE TOTAL CUMULATIVE LIABILITY OF US ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER UNDER CONTRACT, TORT OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES RECEIVED BY US IN THE TWELVE (12) MONTHS PRIOR TO WHEN THE FIRST OF ANY SUCH LIABILITIES AROSE. IN NO EVENT WILL INSILICO BE LIABLE FOR ANY DAMAGES FOR BREACH OF CONTRACT UNDER THIS AGREEMENT UNLESS YOUR ORGANIZATION FIRST PROVIDED TO US THIRTY (30) DAYS' PRIOR WRITTEN NOTICE OF SUCH BREACH AND AN OPPORTUNITY FOR US TO CURE SUCH BREACH WITHIN THOSE THIRTY (30) DAYS.
11.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LIMITATIONS IN THIS SECTION 11 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
11.2 THE TOTAL CUMULATIVE LIABILITY OF US ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER UNDER CONTRACT, TORT OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES RECEIVED BY US IN THE TWELVE (12) MONTHS PRIOR TO WHEN THE FIRST OF ANY SUCH LIABILITIES AROSE. IN NO EVENT WILL INSILICO BE LIABLE FOR ANY DAMAGES FOR BREACH OF CONTRACT UNDER THIS AGREEMENT UNLESS YOUR ORGANIZATION FIRST PROVIDED TO US THIRTY (30) DAYS' PRIOR WRITTEN NOTICE OF SUCH BREACH AND AN OPPORTUNITY FOR US TO CURE SUCH BREACH WITHIN THOSE THIRTY (30) DAYS.
11.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LIMITATIONS IN THIS SECTION 11 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
12.1 Existing Clients. If your organization has an existing Subscription Agreement with Insilico for Chemisty42 with SaaS deployment ("Existing Agreement"), the Existing Agreement shall continue to apply to the use of the Subscription hereunder during the Subscription Period under such Existing Agreement by its permitted users, each of whom shall be deemed a "User" under such Existing Agreement. If, during the Subscription Period under such Existing Agreement, there is any conflict or discrepancy between the Existing Agreement and these Terms, the Existing Agreement shall prevail. For clarity, after the termination or expiration of the Existing Agreement, the use of the Subscription by permitted users of your organization shall be exclusively controlled by these Terms and the End User Terms.
12.2 Force Majeure. No Party will be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are materially delayed or prevented by reason of any event that is beyond the reasonable control of that Party and could not reasonably have been foreseen and protected against by that Party, including any act of nature (including fire, earthquake or natural disaster) or act of government (such as war, terrorism or embargo), provided that the non-performing Party must give the other Party prompt written notice of the event. In the event the delay or nonperformance by Insilico as described in this Section 12.2 continues for a period of forty-five (45) consecutive days, any Authorized User may elect to terminate this Agreement by written notice no more than thirty (30) days after the end of the forty-five (45) day period and receive a refund of any pre-paid fees for unused portions of the remaining Subscription Period. This Section 12.12 does not apply to payment obligations.
12.3 Notices. Notices required under this Agreement to be in writing must be sent by email or deposited with a reputed international courier with a reliable system for tracking delivery and shall be deemed to have been duly given when, in the case of an email, transmitted to the email server of the receiving Party or, in the case of courier delivery, deliver is confirmed on the tracking system of the courier service. Insilico shall deliver any written notice and invoice to the email address of your organization in the Commercial License Order or otherwise provided to us during the customer onboarding process. You shall deliver any written notice to us at: chemistry42@insilico.com. Either Party may from time to time change the address for written notices by giving the other Party prior written notice of the change.
12.4 Assignment. Your organization may not assign any of its rights or obligations under this Agreement without prior written consent from us.
12.5 Changes. Insilico may make reasonable changes to these Terms and any policy referenced in or appended to this Agreement, including without the Privacy Policy and the Acceptable Use Policy (each, a "Change") by written notice to your organization via email; provided, however, that Insilico shall not make any Change that diminishes the protections for Subscriber Data and any Change shall apply to all of our Customers using Chemistry42 self-onboarding services equally. If your organization objects to a Change, any Authorized User may terminate this Agreement for convenience by providing Insilico with written notice of termination with immediate effect.
12.6 Third-Party Beneficiaries. Nothing in this Agreement is intended to or shall confer upon any person other than the Parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
12.7 Governing Law. This Agreement is governed by, and will be construed in accordance with, the laws of Canada, without regard to its conflict of law provisions and the United Nations Convention on Contracts for the International Sale of Goods.
12.8 Arbitration. Any controversy, claim or dispute arising out of or relating to this Agreement shall be referred to and finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules in force when the notice of arbitration is submitted. The seat of arbitration shall be Montreal, Canada. The arbitration proceedings and awards shall be confidential and conducted in English.
12.9 Rules of Interpretation. It is the intention of the Parties that if an arbitrator or a court of competent jurisdiction determines that any provision of this Agreement is unenforceable, the remaining provisions of the Agreement will remain in full force and effect. Unless explicitly specified to the contrary, the word "including" wherever used herein means "including, but not limited to."
12.10 Entire Agreement; Amendment; and Waiver. The Commercial License Order is incorporated into and made part of this Agreement. This Agreement supersedes all prior discussions, statements, representations, and agreements, oral or written, between the Parties relating to the subject matter of the Agreement, and constitutes the entire agreement between the Parties relating to its subject matter. This Agreement may be amended, modified, or supplemented only by a written document signed by an authorized representative of each Party. The failure of either Party, at any time, to enforce any right or remedy available to it under this Agreement or otherwise with respect to any breach or failure by the other Party does not constitute a waiver of such right or remedy with respect to any other breach or failure by the other Party.
12.2 Force Majeure. No Party will be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are materially delayed or prevented by reason of any event that is beyond the reasonable control of that Party and could not reasonably have been foreseen and protected against by that Party, including any act of nature (including fire, earthquake or natural disaster) or act of government (such as war, terrorism or embargo), provided that the non-performing Party must give the other Party prompt written notice of the event. In the event the delay or nonperformance by Insilico as described in this Section 12.2 continues for a period of forty-five (45) consecutive days, any Authorized User may elect to terminate this Agreement by written notice no more than thirty (30) days after the end of the forty-five (45) day period and receive a refund of any pre-paid fees for unused portions of the remaining Subscription Period. This Section 12.12 does not apply to payment obligations.
12.3 Notices. Notices required under this Agreement to be in writing must be sent by email or deposited with a reputed international courier with a reliable system for tracking delivery and shall be deemed to have been duly given when, in the case of an email, transmitted to the email server of the receiving Party or, in the case of courier delivery, deliver is confirmed on the tracking system of the courier service. Insilico shall deliver any written notice and invoice to the email address of your organization in the Commercial License Order or otherwise provided to us during the customer onboarding process. You shall deliver any written notice to us at: chemistry42@insilico.com. Either Party may from time to time change the address for written notices by giving the other Party prior written notice of the change.
12.4 Assignment. Your organization may not assign any of its rights or obligations under this Agreement without prior written consent from us.
12.5 Changes. Insilico may make reasonable changes to these Terms and any policy referenced in or appended to this Agreement, including without the Privacy Policy and the Acceptable Use Policy (each, a "Change") by written notice to your organization via email; provided, however, that Insilico shall not make any Change that diminishes the protections for Subscriber Data and any Change shall apply to all of our Customers using Chemistry42 self-onboarding services equally. If your organization objects to a Change, any Authorized User may terminate this Agreement for convenience by providing Insilico with written notice of termination with immediate effect.
12.6 Third-Party Beneficiaries. Nothing in this Agreement is intended to or shall confer upon any person other than the Parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
12.7 Governing Law. This Agreement is governed by, and will be construed in accordance with, the laws of Canada, without regard to its conflict of law provisions and the United Nations Convention on Contracts for the International Sale of Goods.
12.8 Arbitration. Any controversy, claim or dispute arising out of or relating to this Agreement shall be referred to and finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules in force when the notice of arbitration is submitted. The seat of arbitration shall be Montreal, Canada. The arbitration proceedings and awards shall be confidential and conducted in English.
12.9 Rules of Interpretation. It is the intention of the Parties that if an arbitrator or a court of competent jurisdiction determines that any provision of this Agreement is unenforceable, the remaining provisions of the Agreement will remain in full force and effect. Unless explicitly specified to the contrary, the word "including" wherever used herein means "including, but not limited to."
12.10 Entire Agreement; Amendment; and Waiver. The Commercial License Order is incorporated into and made part of this Agreement. This Agreement supersedes all prior discussions, statements, representations, and agreements, oral or written, between the Parties relating to the subject matter of the Agreement, and constitutes the entire agreement between the Parties relating to its subject matter. This Agreement may be amended, modified, or supplemented only by a written document signed by an authorized representative of each Party. The failure of either Party, at any time, to enforce any right or remedy available to it under this Agreement or otherwise with respect to any breach or failure by the other Party does not constitute a waiver of such right or remedy with respect to any other breach or failure by the other Party.
Acceptable Use Policy
This Acceptable Use Policy is part of the Terms and Conditions by and between your organization and Insilico. All capitalized terms not defined herein have the meaning ascribed to them in the Terms. You agree that your organization shall procure and ensure that each permitted users to comply with the requirements below. For the purpose of this Acceptable Use Policy, "you" shall refer to each of the permitted users of your organization.
You shall comply with written instructions from Insilico in relation to the use of the Subscription.
Except as expressly permitted by Insilico in writing, you shall not:
(a) copy or reproduce any Subscription in any form or medium;
(b) modify, reverse engineer, decompile, adapt, restructure, rearrange, reorganize, recompile, reformat, create derivative works of, change, or add to any Subscription or in any way attempt to reconstruct or discover any source code or algorithms of the Subscription, or any portion thereof, by any means whatsoever;
(c) apply any web scraping techniques against any Subscription or Insilico Content, or otherwise extract data from any Subscription or Insilico Content via an automated process, such as a bot or webcrawler;
(d) remove any copyright, proprietary rights, or restrictive legends, or bypass or disable any protections that have been put in place against unlicensed use of the Subscription;
(e) remove Insilico's and its licensors' legends and notices to all permitted copies, adaptations, and rearrangements of the Subscription or Insilico Content (or part thereof);
(f) provide, or otherwise make available, the Subscription to any third party;
(g) fail to take appropriate action with the agents, and subcontractors of you or your organization, by agreement or otherwise, to satisfy its obligations under this Agreement with respect to the use, copying, protection and security of the Subscription;
(h) use the Subscription or any Insilico Content for the purpose of creating or aiding the creation of a product that is similar to or competes with the Subscription;
(i) use the Subscription directly or indirectly for the purpose of engineering dangerous biological materials (including without limitation those that may be used as bio-weapons), or
(j) engage in any use, including copying, modification, redistribution, publication, display, performance or retransmission, of any portions of any Subscription, other than as expressly permitted by the Agreement.
(a) copy or reproduce any Subscription in any form or medium;
(b) modify, reverse engineer, decompile, adapt, restructure, rearrange, reorganize, recompile, reformat, create derivative works of, change, or add to any Subscription or in any way attempt to reconstruct or discover any source code or algorithms of the Subscription, or any portion thereof, by any means whatsoever;
(c) apply any web scraping techniques against any Subscription or Insilico Content, or otherwise extract data from any Subscription or Insilico Content via an automated process, such as a bot or webcrawler;
(d) remove any copyright, proprietary rights, or restrictive legends, or bypass or disable any protections that have been put in place against unlicensed use of the Subscription;
(e) remove Insilico's and its licensors' legends and notices to all permitted copies, adaptations, and rearrangements of the Subscription or Insilico Content (or part thereof);
(f) provide, or otherwise make available, the Subscription to any third party;
(g) fail to take appropriate action with the agents, and subcontractors of you or your organization, by agreement or otherwise, to satisfy its obligations under this Agreement with respect to the use, copying, protection and security of the Subscription;
(h) use the Subscription or any Insilico Content for the purpose of creating or aiding the creation of a product that is similar to or competes with the Subscription;
(i) use the Subscription directly or indirectly for the purpose of engineering dangerous biological materials (including without limitation those that may be used as bio-weapons), or
(j) engage in any use, including copying, modification, redistribution, publication, display, performance or retransmission, of any portions of any Subscription, other than as expressly permitted by the Agreement.
You shall not use any Subscription to perform any probing, scanning or testing on the technical security or vulnerability of the Subscription or otherwise breach security or authentication measures.
You shall not any Subscription to knowingly upload, post, email, transmit, or otherwise make available any time bomb, worm, virus, lock, drop-dead device or other similar component of software or electronically stored information that is intended in any manner to (a) damage, destroy, alter, or adversely affect the operation of software, hardware, or a Service in connection with which the Subscription is used, or (b) reveal, damage, or alter any software, hardware or data of another person without proper authority.
Use of a non-Insilico intermediate user interface, portal or page to aggregate data, information, or actions from multiple individuals into the Subscription is prohibited.
You shall not any Subscription to knowingly upload, post, email, transmit, or otherwise make available any time bomb, worm, virus, lock, drop-dead device or other similar component of software or electronically stored information that is intended in any manner to (a) damage, destroy, alter, or adversely affect the operation of software, hardware, or a Service in connection with which the Subscription is used, or (b) reveal, damage, or alter any software, hardware or data of another person without proper authority.
Use of a non-Insilico intermediate user interface, portal or page to aggregate data, information, or actions from multiple individuals into the Subscription is prohibited.
You understand that the technical processing and transmission of the Subscription, including but not limited to its account information, may involve (a) transmissions over various networks which may and may not be located in the country of yours, (b) changes to conform and adapt to technical requirements of connecting networks or devices, and (c) other transmission or tracking requirements (including use of cookies). Accordingly, you agree to permit such parties to make such transmissions and changes, and agree to obtain the necessary consent from your organization for the same, and further obtain all rights necessary to share, provide access to and permit use of Subscriber Data by Insilico, its Affiliates and their agents in accordance with the Agreement.
Insilico may from time to time invite you to try services and software that are not generally available to Insilico's subscribers ("Trial Versions"). You may elect to participate in Trial Versions at your sole discretion. Trial Versions will be identified as trial, beta, pilot, early access, limited release, developer preview, non-production, evaluation or by a similar description. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TRIAL VERSIONS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, EXCLUSIVE OF ANY OBLIGATION, REPRESENTATION, WARRANTY, OR INDEMNIFICATION WHATSOEVER. Notwithstanding anything to the contrary in this Agreement, by electing to participate in any Trial Version, you agree Insilico is not liable for any damages arising out of or in connection with the Trial Version.