Terms of Use

This Bio-Rad Customer Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Bio-Rad Service Offerings (as defined below) and is an agreement between Bio-Rad Laboratories, Inc. (also referred to as “Bio-Rad”, “we,” “us,” or “our”) and you or the entity you represent, including any End Users to which you delegate any rights or access to the Service Offerings (“you” or “your”). This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, alternatively, once you begin using the Service Offerings (the “Effective Date”). You represent to us that you are at least 18 years old, and if you are entering into this Agreement on behalf of a company or other entity, that you have authority to bind that entity. Please see Section 13 for definitions of certain capitalized terms used in this Agreement.

WEB-HOSTED SERVICE OFFERINGS

1. Your Account. To access the Services, you must have an account associated with a valid email address. You are responsible for all activities that occur under your account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party. We will assume that any person validly logged in under your account is authorized to further direct Bio-Rad regarding the destruction or other management of Your Content.

2. Security and Data Privacy

2.1 Security. Without limiting Section 9 or your obligations under Section 7, we will implement reasonable and appropriate measures to secure Your Content against accidental or unlawful loss, access or disclosure.

2.2 Data Privacy

2.2.1 Your Content. We do not require any personally identifiable information in order to provide Services to you, other than your Account Information as described in Section 2.2.2. We will not access or use Your Content except: (a) to provide the Service Offerings to you or to comply with law or a court (or similar) legal order. Unless it would violate the law or a binding order of a governmental body, we will give you notice of any legal requirement or order referred to in this Section 2.2.1.

2.2.2 Your Account Information. We will only use your Account Information in accordance with the Privacy Policy, and you consent to such usage. The Privacy Policy does not apply to Your Content; please review Section 7 regarding our permitted uses of Your Content.

2.2.3 De-Identified Information Only. You agree and acknowledge that, while using or accessing the Service Offerings, you will only upload de-identified information for research use only (RUO) purposes. You will not upload or transmit any personally identifying information, personal health information, or other personal data as defined by applicable law, including under HIPAA. You are required to notify Bio-Rad immediately in writing in the event of any disclosure of any personally identifiable information to Bio-Rad, at which time, Bio-Rad shall either return or destroy such information. Bio-Rad disclaims any and all liability resulting from its receipt, destruction, or other handling or management of all personally identifiable information that you provide to us, whether inadvertent or otherwise, under this Agreement.

3. Your Responsibilities

3.1 Your Content. You will ensure that Your Content (and any End Users’ use of Your Content) will not violate any of Bio-Rad’s policies or any applicable law, or otherwise infringe upon, misappropriate, or violate any third party rights. You are solely responsible for the development, operation, maintenance, and use of Your Content.

3.2 Log-In Credentials and Account Keys. Any log-in credentials or other private keys provided by Bio-Rad are for your internal use and you will not sell, transfer or sublicense them to any other entity or person.

ALL SERVICE OFFERINGS

4. Use of the Service Offerings

4.1 Generally. You may access and use the Service Offerings in accordance with this Agreement. You will comply with the terms of this Agreement and all laws, rules and regulations applicable to your use of the Service Offerings.

4.2. Changes to the Services. We may change or discontinue any of the Services from time to time but will notify you if we discontinue material functionality of a Service, unless such action is due to: (a) a security or intellectual property issue, (b) is economically or technically burdensome, or (c) would cause us to violate applicable laws. We will also keep you updated of any major bug fixes or any new features/updates.

4.3 Patient Care. You hereby represent and warrant that you will not use or access any Services for the purpose of generating or analyzing clinical information or otherwise diagnosing or treating patients.

5. Temporary Suspension. To the extent that the Service Offerings involve a Bio-Rad hosted platform, then we may suspend your access to the Service Offerings immediately if we determine that you (a) pose a security risk to, or otherwise adversely impact, the Service Offerings or could subject us, our affiliates, or any third party to liability; (b) breach this Agreement; (c) fail to make payments due for these Service Offerings or any products purchased from Bio-Rad related to the Service Offerings; (d) cease to operate in the ordinary course, make an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

6. Term and Termination. This Agreement will commence on the Effective Date and will continue indefinitely until termination. You may terminate this Agreement subject to thirty (30) days advance notice to us. We may terminate subject to six (6) months advance notice to you, except in the case of a material breach, in which we must give you thirty (30) days notice to cure before terminating the Agreement. Finally, we may terminate this Agreement immediately if we experience a change in the way we provide the software or other technology that renders continued provision of the Service Offerings impracticable, or otherwise to comply with law or a court (or similar) legal order.

6.1 Effect of Termination

(a) Generally. Upon termination, all of your rights will terminate; however, Sections 4, 7 (except the license granted to you in Section 7.3), 8, 9, 10, 11, and 12 will survive.

(b) Post-Termination. For 30 days following Termination, to the extent that we receive any of Your Content, we will not remove Your Content as a result of the termination, and will allow you to retrieve Your Content.

7. Proprietary Rights

7.1 Your Content. Except as provided in this Agreement, we obtain no rights under this Agreement to Your Content, except to provide the Service Offerings to you. You will ensure that Your Content and any End User's use of Your Content will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Your Content.

7.2 Title to Your Content. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content; and (b) none of Your Content or End Users’ use of Your Content will violate applicable Bio-Rad policies.

7.3 Feedback. Bio-Rad owns all Feedback and shall use such information for internal business purposes. You hereby assign to us, and shall cause your employees and agents, to assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.

7.4 Service Offerings License. We or our licensors own all right, title, and interest in and to the Service Offerings, and all related technology and intellectual property rights, including as related to Aggregated Statistics that we may generate as a result of your use of or access to the Service Offerings. During the Term of this Agreement, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to: (a) access and use the Services in accordance with this Agreement; and (b) copy and use any Bio-Rad Content, such as documentation, solely in connection with your permitted use of the Services.

7.5 License Restrictions. Neither you nor any End User will use the Service Offerings contrary to that which is permitted herein. Neither you nor any End User will: (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content, in whole or in part, included in the Service Offerings; (b) reverse engineer, disassemble, or decompile the Service Offerings or apply any other process or procedure to derive the source code of any software included in the Service Offerings (except to the extent applicable law doesn’t allow this restriction); or (d) rent, lease, assign, distribute, public, transfer, resell or sublicense the Service Offerings; (e) remove any proprietary notices from the Service Offerings or any Bio-Rad Content; or (f) use the Services or any Bio-Rad Content in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

7.6 Reservation of Rights. Bio-Rad reserves all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted to you herein, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Bio-Rad Content.

8. Indemnification

8.1 General Indemnification. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any losses arising out of or relating to any third-party claim concerning: (a) your or any End Users’ use of the Service Offerings (including any activities under your Bio-Rad account); (b) breach of this Agreement or violation of applicable law; (c) a dispute between you and any End User; (d) a claim related to infringement of Your Content; or (e) any disclosure of personally identifiable information by you to Bio-Rad; or (f) any violation of your obligations under Section 7 of this Agreement. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party subpoena or other legal order or process associated with third party claims described in (a) through (c) above.

8.2 Intellectual Property Indemnification by Bio-Rad. Subject to the limitations in this Section 8, Bio-Rad will defend you and your employees, officers, and directors against any third-party intellectual property infringement claim. For any such claim, Bio-Rad will, at its election, either: (i) procure the rights to use that portion of the Services alleged to be infringing; (ii) replace the alleged infringing portion of the Services with a non-infringing alternative; (iii) modify the alleged infringing portion of the Services to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Services or this Agreement.

8.3 Process. The obligations under this Section 8 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.

9. Disclaimers. The Service Offerings are provided “as is”. Except to the extent prohibited by law or statute, we make no representations or warranties of any kind, whether express or implied, and we expressly disclaim the same (including as related to warranties of merchantability, fitness, or non-infringement, and whether arising out of any course of dealing or usage of trade). We do not guarantee that the service offerings (or any third-party content) will be or will meet your or any other person or entity’s requirements, achieve any intended result, be compatible or work with any software system, or be secure, accurate, complete, free of harmful code, or be uninterrupted or error free.

10. Limitations of Liability. We and our affiliates and licensors will not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages (including lost profits, opportunities, goodwill, or data), even if a party has been advised of the possibility of such damages. Neither we nor any of our affiliates or licensors will be responsible for any compensation, reimbursement, or damages arising out of: (a) your inability to use the services, including as a result of (i) termination or suspension of this Agreement, (ii) discontinuation of the Service Offerings, or (iii) any unanticipated or unscheduled downtime; (b) the cost of procurement of substitute goods or services or (c) any unauthorized access to, alteration of, or deletion, destruction, damage, loss of failure to store any of Your Content or other data. In any case, except for any associated payment obligations, our and our affiliates’ licensors’ aggregate liability under this Agreement will not exceed the amount you actually pay us under this Agreement for the service that gave rise to the claim during the 12 months before the liability arose. The limitations in this Section apply only to the maximum extent permitted by law.

11. Modifications to the Agreement. We may modify this Agreement including any policies at any time by posting a revised version on the Bio-Rad Site or by otherwise notifying you with the contact information you provide when registering your account. By continuing to use the Service Offerings after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms.

12. Miscellaneous

12.1 Assignment. This Agreement may not be transferred or assigned by a party without the prior written consent of the other party; provided, that either party may transfer or assign this Agreement without consent in connection with a merger, reorganization, change of control or ownership, or transfer or sale of assets or product lines. Additionally, you agree that Bio-Rad may delegate or subcontract any or all of its rights and obligations under this Agreement to one or more of its affiliates or subsidiaries, or any other third party.

12.2 Entire Agreement; No Waiver. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and no modification or waiver of any of the provisions, or any future representation, promise or addition, shall be binding upon the parties unless agreed to in writing. Waiver of any term, condition, or provision of this Agreement on one occasion shall not constitute waiver for the purpose of any other occasion.

12.3 Force Majeure. We will not be liable or responsible for any failures to perform due to unforeseen circumstances or to causes beyond their reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor or materials.

12.4 Governing Law. Any dispute arising under this Agreement shall be governed exclusively by the laws of the State of California, with venue in San Francisco, California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

12.5 Arbitration. In the event a dispute arises with respect to any provision hereof or any alleged breach hereof and the parties are unable to resolve the dispute, the parties agree to resolve such dispute through arbitration, which shall be processed and determined exclusively in Contra Costa County, California, in accordance with the rules of the American Arbitration Association then in effect.

12.6 Independent Contractors; Authority to Bind. Neither party is an agent of the other party. The relationship between the parties is that of independent contractors. Neither party has any right or authority to assume or create any obligations or to make any representations or warranties on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever.

12.7 Confidentiality and Publicity. You may use Bio-Rad Confidential Information only in connection with your use of the Service Offerings as permitted under this Agreement. You will not disclose Bio-Rad Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Bio-Rad Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Service Offerings.

12.8 Notice

(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Bio-Rad Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Bio-Rad Site will be effective upon posting and notices we provide otherwise will be sent at the time of transmission. It is your responsibility to keep your contact information current.

(b) To Us. To give us notice under this Agreement, you must contact us via any means designated in writing (including electronically) by Bio-Rad.

12.9 No Third-Party Beneficiaries. This Agreement does not create, and will not be construed as creating, obligations to or rights enforceable by any person or entity that is not a party to this Agreement.

12.10 Severability. If any provision of this Agreement shall be held to be prohibited or unenforceable in any jurisdiction, such provision shall be deemed ineffective only in such jurisdiction. The remaining provisions of this Agreement shall remain in full force and effect. The parties shall use their best efforts to replace the provision prohibited or held unenforceable with a legal provision approximating the original intent of the parties as far as possible.

12.11 Export Regulations. To the extent applicable, you are prohibited from exporting, re-exporting, or releasing the Services outside the US or otherwise in contravention of any country or other jurisdiction’s laws prohibiting export, re-export, or release of such Services. You agree to comply with all export or re-export laws, including with respect to securing any applicable licenses, permits, or other approvals, in order to export, re-export, or release the Services outside the US.

12.12 US Government Rights. To the extent that: (a) the Services fall within the meaning of "commercial item," as defined by 48 C.F.R. § 2.101, and include "commercial computer software" and "commercial computer software documentation" as defined by 48 C.F.R. § 12.212; and (b) you are a US government agency or contractor, then: you are entitled to the rights granted to other Bio-Rad customers pursuant to 48 C.F.R. § 227.7201 through .7204, with respect to the Department of Defense and their contractors, or alternatively, 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.

13 Definitions

“Account Information” means information about you that you provide to us in connection with the creation or administration of your Bio-Rad account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with your Bio-Rad account.

“Aggregated Statistics” means data which is generated by Bio-Rad, including its affiliates, agents, or subcontractors, as a result of monitoring your use of the Service Offerings, for example, usage statistics. Such data is used by Bio-Rad in an aggregated and anonymized manner, including to compile statistical and performance information to improve the Service Offerings.

“Bio-Rad Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Bio-Rad Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. Bio-Rad Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Bio-Rad Confidential Information.

“Bio-Rad Content” means Content we or any of our affiliates make available in connection with the Services or on the Bio-Rad Site to allow access to and use of the Services, including APIs; WSDLs; user or other instructional guides or documentation supplied or made accessible by Bio-Rad; sample code; software libraries; command line tools; proofs of concept; templates; and other related technology (including any of the foregoing that are provided by our personnel) and intellectual property supplied by Bio-Rad. Bio-Rad Content does not include Third-Party Content. Bio-Rad content includes Aggregated Statistics, as well as any Feedback.

“Bio-Rad Site” means BR.io (and any successor or related site designated by us), as may be updated by us from time to time. Bio-Rad Site also includes, as applicable, Bio-Rad.com.

“Content” means software (including machine images), data, text, audio, video, images, files, or other information.

“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Service Offerings under your account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own Bio-Rad account, rather than under your account.

“Feedback” means any recommended changes or other suggestions that you provide Bio-Rad regarding changes to the Services, including without limitation, new features or functionality related thereto, or any comments, questions, suggestions or the like.

“Policies” means the Privacy Policy, any applicable service terms associated with the Service Offerings or Bio-Rad products associated with use of the Service Offerings, all restrictions described in the Bio-Rad Content and on the Bio-Rad Site.

“Privacy Policy” means the privacy policy located at http://bio-rad.com/privacy as it may be updated by us from time to time.

“Service” means each of the services, including all Service Offerings, made available by us or our affiliates, including those web services described in the Service Terms, including Bio-Rad Content, as well as any Bio-Rad trademarks, service marks, service or trade names, logos, and other designations, and any other product or service provided by us under this Agreement. Services do not include Third-Party Content.

“Service Offerings” means the services (including associated APIs) that we make available to you in order to store, analyze, review, aggregate, compile, or otherwise review Your Content. Service Offerings are customarily provided in conjunction with Bio-Rad’s provision of other equipment or consumables to you which generate portions of Your Content. Your use or access to Service Offerings are governed by this Agreement as well as any Service Offering-specific Service Terms that we may provide to you. Service Offerings do not include Third-Party Content.

At this time, Bio-Rad provides one (1) Service Offerings: a web-hosted platform, in which you access Bio-Rad Content through the Bio-Rad Site.

“Service Terms” means the rights and restrictions for particular Service Offerings to the extent provided to you before registering your account.

“Term” means the term of this Agreement described in Section 6.

“Third-Party Content” means Content made available to you by any third party on the Bio-Rad Site or in conjunction with the Services.

“Your Content” means Content that you or any End User transfers to us for processing, storage or hosting by the Services in connection with your Bio-Rad account and any computational results that you or any End User derive from the foregoing through their use of the Services, including any further analysis or other data generated by you as a result of uploading your Content to the Bio-Rad Site and using Bio-Rad’s Services. Your Content does not include Account Information or Aggregated Statistics.