CHEMPASS END USER AGREEMENT FOR HOSTED SOFTWARE PRODUCT
This is an end user agreement (“HOSTED SOFTWARE PRODUCT AGREEMENT”) between ChemPass LTD and you, the individual or entity that has ordered ChemPass’ hosted software Product (such individual or entity, “You” or “LICENSEE" and such software Product, the “Hosted Software Product). The software Product provider entity is hereinafter referred to as “ChemPass”. If You use ChemPass’ Hosted Software Product, You, on behalf of the entity identified on the price quotation (the “PRICE QUOTATION”) or other communication forms from ChemPass, shall be deemed to have accepted the terms and conditions of this HOSTED SOFTWARE AGREEMENT. You hereby represent and warrant that You are authorized to bind to this HOSTED SOFTWARE AGREEMENT the entity or individual identified in the PRICE QUOTATION or other communication forms from ChemPass. If You do not agree to these terms and conditions, You are not authorized to use the Hosted Software Product. In the event of any inconsistency among the applicable PRICE QUOTATION and this HOSTED SOFTWARE AGREEMENT, the controlling provisions shall be determined by reference to the following order: (1) PRICE QUOTATION, (2) this HOSTED SOFTWARE AGREEMENT.
1. RIGHTS GRANTED
1.1 Grant of Rights. Subject to the terms and conditions of this HOSTED SOFTWARE AGREEMENT and the applicable PRICE QUOTATION setting forth other terms including Your payment of the applicable Hosted Software Product fees, ChemPass hereby grants You a limited, non-exclusive, internal-use-only, non-transferable, non-assignable, royalty free, right to access and use the Hosted Software Product solely for Your internal business purposes, during the term identified on the PRICE QUOTATION, as applicable (the "TERM"). You may allow Your Users to access and use the Hosted Software Product for these purposes only and You are solely responsible for Your Users’ compliance with all terms and conditions applicable to the Hosted Software Product. Upon the conclusion of the applicable TERM, Your right to access or use the Hosted Software Product shall terminate. As used herein a “User” is defined as an individual within Your organization who is authorized to use the Hosted Software Product. The Hosted Software Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Hosted Software Product is licensed, not sold.
1.2 Restrictions. You shall not directly or indirectly: (i) modify, translate, adapt, create derivative works from or disassemble, reverse compile, decompile or reverse engineer the Hosted Software Product or any software that is part of the Hosted Software Product, or any portion thereof specifically including but not limited to the synthesis know-how and concepts, algorithms and solutions to handle and manage synthetic know-how in the Software , (ii) circumvent or get around restrictions and limitations in performance, access to data, or any use installed by ChemPass into the trial or full version of the Hosted Software Product by using robots or any other manner (iii) license, rent, lease, loan, sell, transfer, assign, publish, display, distribute, host, outsource, disclose or make the Hosted Software Product, or any portion thereof, available to third parties or use the Hosted Software Product, or any portion thereof, in a software Product bureau, time-sharing or outsourcing software Product or otherwise commercially exploit the Hosted Software Product, or any portion thereof, for the benefit of third parties, (iv) remove or alter any proprietary rights notices or software markings in the Hosted Software Product or any part thereof or (v) disclose or otherwise make available, without ChemPass’ prior written approval, the Hosted Software Product or any ChemPass software, or any code, information or materials contained in or related to the Hosted Software Product, analysis or performance information, results of the Hosted Software Product performance benchmarks or documentation to any entity (except to Your employees having a need to know for purposes of authorized use hereunder and who are informed in writing of the obligations of this section) or use any of the foregoing other than as expressly authorized hereunder. You shall notify ChemPass immediately of any actual or imminent unauthorized access to, or use or disclosure of, any of the foregoing. You recognize that the unauthorized use or disclosure of any of the foregoing will give rise to irreparable injury to ChemPass and/or its licensors, affiliates and third party providers for which monetary damages may be an inadequate remedy; and You agree that ChemPass or its licensors, affiliates or third party providers may seek and obtain injunctive relief against the breach or threatened breach of Your obligations hereunder, in addition to any other legal and equitable remedies which may be available.
The rights granted to You under the HOSTED SOFTWARE AGREEMENT are conditioned on the following: (i) only one User may be assigned to each User seat (ii) the login and password information of any User authorized to use the Hosted Software Product cannot be shared or used by anyone other than such authorized User and (iii) You agree to make every reasonable effort to prevent unauthorized use of the Hosted Software Product. ChemPass shall have the right to audit Your use of the Hosted Software Product to ensure compliance with the terms of this HOSTED SOFTWARE AGREEMENT.
1.3 Third Party Hosting Provider. ChemPass’ provision of the Hosted Software Product is subject to the terms and conditions of ChemPass’ third party hosting provider, and such terms and conditions may change during the applicable TERM. You acknowledge and agree that if such third-party hosting provider terms change, modifications to Your Hosted Software Product and the terms of this HOSTED SOFTWARE AGREEMENT may be necessary. You also acknowledge and agree that such third-party hosting provider may perform scheduled or unscheduled repairs or maintenance, or ChemPass may remotely patch or upgrade the ChemPass software installed on its systems, which may temporarily degrade the quality of the Hosted Software Product or result in partial or complete outage of the ChemPass software that is part of the Hosted Software Product. Any such degradation or interruption shall not give rise to a refund or credit of any fees paid by You. ChemPass shall use commercially reasonable efforts to notify You of any changes to the Hosted Software Product.
1.4 Trial Use of the Hosted Software Product. You may request the Hosted Software Product for trial non-production purposes subject to the terms and conditions of this HOSTED SOFTWARE AGREEMENT. When provided on a trial basis the Hosted Software Product is provided “as is”, the Hosted Software Product might be restricted as compared to the full paid version in performance, features or other manner, and ChemPass does not offer any warranties of any kind for such Hosted Software Product.
ChemPass shall have the right to immediately terminate this HOSTED SOFTWARE AGREEMENT with no refund: (a) for a material breach of this HOSTED SOFTWARE AGREEMENT by You (including, without limitation, Your failure to meet Your payment obligations under the accepted PRICE QUOTATION), or (b) if You become insolvent or are unable to pay Your debts as due, enter into or file (or have filed or commenced against You) a petition, arrangement, action or other proceeding seeking relief or protection under the bankruptcy laws or similar laws of any other jurisdiction or transfers all of Your assets to another person or entity. ChemPass shall have the right to terminate this HOSTED SOFTWARE AGREEMENT upon written notice to You in the event of the termination of a third party license to code that is included in the Hosted Software Product or termination of third party hosting software Products used in connection with the Hosted Software Product, provided that, in the event of any such termination of this HOSTED SOFTWARE AGREEMENT, ChemPass shall refund any Hosted Software Product fees paid by You hereunder on a pro rata basis depending on the portion of the TERM that has passed as of the date of termination of this HOSTED SOFTWARE AGREEMENT. In the event of termination or expiration of this HOSTED SOFTWARE AGREEMENT for any reason, You shall discontinue all use of the Hosted Software Product. Notwithstanding the foregoing, Sections 1.2(v), 2, 3, 5, 6, 8 and 9 shall survive the expiration or termination hereof for any reason.
3. OWNERSHIP AND COPYRIGHTS
You acknowledge that the Hosted Software Product and ChemPass software that are part of the Hosted Software Product and their source code are the sole and exclusive property of, and are valuable, confidential and proprietary trade secrets of ChemPass and are protected by copyright law, including, without limitation, all rights to patents, copyrights, trademarks, trade secrets and any other intellectual property and proprietary rights inherent therein or appurtenant thereto, in all media now known or hereinafter developed, and You shall protect the foregoing to at least the same extent that You protect Your own confidential and proprietary information, but in any case, no less than reasonable protection. ChemPass may have trademarks, copyrights, or other intellectual property rights covering the SOFTWARE PRODUCT and ChemPass reserves all rights not expressly granted.
You are not purchasing title to the Hosted Software Product or any software that is part of the Hosted Software Product, but rather are being granted only the right to access and use the Hosted Software Product subject to the terms set forth herein. All rights not expressly granted by ChemPass under this HOSTED SOFTWARE AGREEMENT are hereby reserved. You shall inform ChemPass promptly in writing of any alleged or actual infringement of ChemPass', its licensors' or its third-party hosting providers’ rights, of which You become aware, and of any available evidence thereof.
You retain all ownership and intellectual property rights in and to Your content including Your data residing in the Hosted Software Product environment. In connection with ChemPass’ provision of the Hosted Software Product, it may be necessary for ChemPass to obtain, receive, or collect your data. In such cases, You grant ChemPass a non-exclusive, worldwide, royalty-free, non-revocable license to use, compile, distribute, display, store, process, or reproduce Your data solely to facilitate ChemPass’ provision of the Hosted Software Product to You. You also grant ChemPass the right to copy, monitor and maintain such data during the TERM only for backup purposes and to facilitate providing You with the Hosted Software Product. You represent and warrant that You have obtained all rights, permissions, and consents necessary to use and transfer the data within and outside of the country in which You are located in conjunction with ChemPass’ provision of the Hosted Software Product or Your use of ChemPass software that is part of the Hosted Software Product.
4. SUPPORT & CONSULTING SOFTWARE PRODUCTS
ChemPass may provide you with support and consulting service related to the Hosted Software Product including free maintenance and technical support by e-mail or phone.
ChemPass shall provide maintenance and technical support during the TERM included in the applicable license fees inclusive of technical support by telephone and e-mail during regular business hours with no guaranteed response time, and new releases/new versions/bug fixes when and if they are made available to other customers.
Use of Support & Consulting Service is governed by ChemPass policies or in other materials provided by ChemPass. Any supplemental software code or solution provided to you as part of the support for the Hosted Software Product shall be considered part of the Hosted Software Product and is subject to the terms and conditions of this HOSTED SOFTWARE AGREEMENT. The Support and Consulting Service include the following software related support:
Reaction curation for incorporation into the Hosted Software Product
Reaction parameterization and upload into the Hosted Software Product
Customization of filters, GUI and other components
Custom scripts, Knime workflows and other tools
You shall provide ChemPass with all information necessary for the support and consulting activity (e.g. available information regarding the failure, including but not limited to the detailed description of the failure, all information that allows reproduction of the failure, providing consultancy with the person detecting the failure, reproduction of the failure if possible).
5. REPRESENTATIONS AND LIMITED WARRANTY
ChemPass warrants that the Hosted Software Product will perform substantially in accordance with the accompanying documentation during the applicable TERM. ChemPass' sole and exclusive obligation and liability for any breach of the foregoing warranty shall be, in ChemPass' sole discretion: (i) to repair the Hosted Software Product; or (ii) to refund any fees paid by You for the Hosted Software Product. In no event shall the warranty herein apply to difficulties or defects that are due to Your computer hardware, third party software, environment, operating system or other causes external to the Hosted Software Product. ChemPass does not warrant that the Hosted Software Product will operate uninterrupted or error-free or meet Your particular requirements. EXCEPT AS SET FORTH ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CHEMPASS AND ITS AFFILIATES, LICENSORS AND THIRD-PARTY PROVIDERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, CORRECTNESS, USE OR APPLICATION, ADEQUACY AND SUITABILITY, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT CHEMPASS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SOFTWARE PRODUCT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CHEMPASS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
You represent and warrant that You have sufficient rights to Your content (including data) residing in Your Hosted Software Product environment. You further represent and warrant that You shall use the Hosted Software Product in accordance with all applicable laws, rules and regulations and shall not use the Hosted Software Product or permit use of the Hosted Software Product, for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful or offensive. Without limiting the generality of the foregoing, You may not upload content or use the Hosted Software Product to engage in activities that infringe or misappropriate the intellectual property or proprietary rights of others or activities that may damage, interfere with, surreptitiously intercept or expropriate any system, program, or data including viruses, Trojan horses worms, time bombs or cancelbots. Violation of any of the foregoing representations and warranties constitutes a material breach of this HOSTED SOFTWARE AGREEMENT resulting in immediate termination of the Hosted Software Products.
You will, at Your own expense, indemnify, defend and hold harmless ChemPass, its affiliates, licensors, and third party providers and their respective directors, officers, trustees, students, employees and agents, from and against any action, damages, suits, claims, liabilities, costs and expenses (including reasonable attorneys' fees) based on a claim arising from or relating to this HOSTED SOFTWARE AGREEMENT or Your use of the Hosted Software Product including without limitation Your breach of any of the terms and conditions and representations and warranties hereunder. The indemnified party shall have the exclusive right to control such defense. In no event shall You settle any such claim, lawsuit or proceeding in any manner that prejudices the indemnified party's rights without the indemnified party's prior written approval.
7. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CHEMPASS, ITS AFFILIATES, LICENSORS OR THIRD PARTY PROVIDERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST BUSINESS OR PROFITS, LOSS OF DATA OR CONTENT OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SOFTWARE PRODUCTS, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR THE PROVISION OF OR FAILURE TO PROVIDE MAINTENANCE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CHEMPASS' AND ITS AFFILIATES' ENTIRE AGGREGATE LIABILITY UNDER OR RELATING TO THIS HOSTED SOFTWARE AGREEMENT, FOR ANY REASON(S) AND UPON ANY CAUSE(S) OF ACTION WHATSOEVER, SHALL NOT EXCEED THE PRICE ACTUALLY PAID BY YOU FOR THE USE OF THE SOFTWARE PRODUCT. NO LICENSOR OR THIRD PARTY PROVIDER OF CHEMPASS SHALL HAVE ANY LIABILITY TO YOU FOR LOSS OR DAMAGES ARISING OUT OF THIS HOSTED SOFTWARE AGREEMENT OR THE SOFTWARE PRODUCT.
In connection with the Hosted Software Product and this HOSTED SOFTWARE AGREEMENT, a party may have access to information that is confidential to the other party (“Confidential Information”). You acknowledge that ChemPass may need to permit access to Your Confidential Information residing in Your Hosted Software Product environment to certain of its employees, representatives, consultants, officers, directors and third-party providers (“Representatives”) solely for purposes of meeting ChemPass’ obligations to You hereunder. Confidential Information hereunder shall be limited to the terms under the HOSTED SOFTWARE AGREEMENT, Your content and data residing in the Hosted Software Product environment, and all information clearly identified as confidential at the time of disclosure. This HOSTED SOFTWARE AGREEMENT and all User Guides provided by ChemPass as part of the Hosted Software Product are Confidential Information.
A party’s Confidential Information does not include information that: (i) is or becomes publicly available without breach of this HOSTED SOFTWARE AGREEMENT; (ii) can be shown by documentation to have been known to the receiving party prior to its receipt from the disclosing party; (iii) is rightfully received from a third party who did not acquire or disclose such information by a wrongful or tortious act; (iv) can be shown by documentation to have been developed by the receiving party without reference to any Confidential Information; or (v) that the receiving party becomes legally obligated to disclose to a governmental entity with jurisdiction over it; provided that the receiving party will give the disclosing party prompt written notice to allow the disclosing party to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the information to be so disclosed and a copy of the order. The receiving party will disclose only such information as is legally required.
The parties agree to hold each other’s Confidential Information in confidence for the applicable TERM. Each party agrees to disclose Confidential Information of the other party only to those Representatives who are required to protect it against unauthorized disclosure in a manner no less protective than under this HOSTED SOFTWARE AGREEMENT. ChemPass will protect the confidentiality of Your content and data residing in the Hosted Software Product environment in accordance with industry-standard security practices and subject to the security policies of its third-party hosting provider.
All payments shall be made by bank transfer according to the PRICE QUOTATION. The date of payment is the date of the bank transfer of the ChemPass’ credit institution, carried out from the payer’s account (Your account), reaching ChemPass’ account. Each Party shall bear its own costs in connection with such transfer.
Unless agreed otherwise, the software Product fee shall not encompass any VAT or other tax ChemPass is subject to (levies, taxes, withholding tax, duties or other charges).
This HOSTED SOFTWARE AGREEMENT and its enforcement shall be governed by, and construed in accordance with, the laws of the Switzerland, without regard to conflicts-of-law principles. The exclusive venue for any action relating to this HOSTED SOFTWARE AGREEMENT shall be the courts situated in Zurich, and each party expressly consents to the jurisdiction of such courts. The language to be used in the court proceedings shall be English.
Neither party shall be liable for failure to perform an obligation under this HOSTED SOFTWARE AGREEMENT where such failure is due to fire, flood, labor dispute, natural calamity, electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions, or other causes beyond its reasonable control. Parties shall use reasonable efforts to mitigate the effect of such events.
The parties are independent contractors. No agency, partnership or joint venture is created by this HOSTED SOFTWARE AGREEMENT.
Neither Party shall transfer its rights and obligations in relation to the HOSTED SOFTWARE AGREEMENT without the prior written consent of the other Party.
This HOSTED SOFTWARE AGREEMENT constitutes the entire agreement between the parties and supersedes all prior agreements, written or oral, relating to the subject matter hereof.
This HOSTED SOFTWARE AGREEMENT may not be modified or altered except by written instrument duly executed by both parties.
If any provision of this HOSTED SOFTWARE AGREEMENT is deemed to be unenforceable, that provision shall be enforced to the maximum extent permitted to affect the parties' intentions hereunder, and the remainder of this HOSTED SOFTWARE AGREEMENT shall continue in full force and effect. The failure of either party to exercise any right provided for herein shall not be deemed a waiver of any right hereunder. Any notices hereunder shall be in writing to the receiving party's address set forth on the PRICE QUOTATION or to the receiving party's headquarters as identified on its Web site. Notices shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail, return receipt requested; (iii) if by fax, upon receipt thereof as evidenced by fax confirmation; or (iv) if by next day delivery software Product, upon such delivery. Either party may change its address by giving written notice to the other party.
10. ADDITIONAL TERMS
1. The Hosted Software Product is hosted on Microsoft Azure (“Azure”) servers pursuant to a Web Software Products agreement between ChemPass and Microsoft.