TERMS AND CONDITIONS
Read the Terms carefully before accessing or using the Services. Accessing or using any part of the Services (including this website), will be deemed Your assent to be bound by these Terms. If you do not agree to all these terms and conditions, then do not access the Services as you are not authorized to do so. To the extent these terms and conditions are considered an offer by Strateos, acceptance is expressly limited to the Terms. If you have entered into a separate written agreement with Strateos for use of the Services, the terms and conditions of such other agreement, to the extent of a conflict with these terms, shall prevail over such conflicting terms or conditions in these Terms. You agree that you have read these Terms, understand them, and have the capacity and authority to accept, agree to and be bound by these Terms. Use or access without further communication is deemed acceptance to the Terms. Only individuals eighteen (18) years or older are offered and may accept these Terms. If you are not 18 years of age, you are not authorized to use or access the Services.
Strateos may be referred to as “Strateos,”, "Transcriptic", “Us,” “We” or “Our”. Customer may be referred to as “CUSTOMER,” “CLIENT,” “USER,” "YOU" OR "YOUR." Each of us are Party and together we are the Parties hereto.
a. Services. “Services” means professional and consultative services, as well as access to the Strateos platform and content included on strateos.com and transcriptic.com website, in a Protocol or under a separate written Agreement between the Parties hereto. In each case, it is upon mutual acceptance of a Protocol that You may Order the Services. Strateos will deliver the Services and Resulting Deliverables using commercially diligent efforts. The "Protocol" means the documented work to be conducted, as well as work-flow, configurations and specifications to which the Services must comply and which are designed to yield Resulting Deliverables. Protocols are included in an overall Scope of Work, “SOW” to be agreed between the Parties. "Resulting Deliverables” are the materials yielded from the Services performed. An “Order” is the mechanism by which You may set forth with specificity the Services to be performed under a given Protocol and SOW. Scopes of Work, Protocols and Orders must only be honored upon mutual acceptance. Each are a part of and subject to the Terms unless otherwise specified under a separate agreement between the Parties.
b. Subscriptions. Unless otherwise agreed, access to Services via the website is offered on a Subscription basis. "Subscription" means access to Our web-based applications, tools and platform to which you may subscribe on https://www.strateos.com/ or that We otherwise make available to You by separate agreement.
c. Restrictions. You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service. Services by Subscription are not designed to comply with industry-specific laws or regulations such as and including the Federal Food, Drug and Cosmetic Act, the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or foreign equivalents. Thus, you may not use the Subscription Service where your use would be subject to such laws.
d. Ordering and User Limitations. Orders may be submitted by Customer through the https://www.strateos.com/, https://www.transcriptic.com, or by written Order, each in accordance with the Protocol. All such Orders must be accepted by Strateos in advance of the Services being provided. Services are subject to usage limits by User, including, for example, the quantities specified in an Order. Unless otherwise specified, (i) the Services may not be accessed by anyone other than Your employees, and (ii) a User’s password may not be shared with any other individual.
a. Customer will provide Strateos with sufficient amount of its information, materials, compounds, substances, samples, devices and/or specifications as needed to complete the Services (“Customer Materials”), as well as comprehensive data or information concerning the stability, storage, health and safety information of Customer material needed by Strateos to complete the Services.
b. Strateos reserves the right to transfer Customer Materials to third party service providers, if required, with or without Customer’s prior written consent.
c. Customer will not send Strateos any known or suspected infectious, radioactive, poisonous, or other contaminant that may pose a risk to Strateos personnel or property. Customer must ensure, and hereby warrants, that samples pose no danger to any individual or property from access, use, during transportation, in the laboratory or otherwise. Should any sample require special care, the sample may be submitted to Strateos only with Strateos’s prior written consent.
d. Customer will provide Strateos with complete and accurate data as to the identity, strength, purity, stability, composition or other characteristics, and safe handling requirements of the Customer Material, including Safety Data Sheets or equivalent documentation. Failure to provide sufficient information for Customer Materials may result in delay of execution of Services, denial of Service, denial of shipment or destruction of Customer Materials.
e. Strateos claims no responsibility for any loss or damage of Customer Material while in transit.
f. Customer Material identified in the Protocol as “discard on completion” will be immediately discarded when the work under the Protocol is completed. If there is no instruction to discard Customer Materials in the Protocol, Strateos will -discard the Customer Materials ninety (90) days following completion of the Protocol.
g. Upon written agreement of the Parties, Customer may seek to store Customer Materials. Customer Materials stored for any period beyond the date upon which work under the Protocol is completed, or which is subject to special handling, will be stored and/or handled at Customer’s additional expense.
h. We reserve the right to transfer Customer Materials for discard and destruction to third party service providers to handle such transfer and/or destruction.
i. Without prior notice to Customer, any Customer Materials that are perishable, including but not limited to bacterial growth media and agar plates, may be discarded at Our discretion if dated beyond their usable life or of we believe it's contaminated.
a. You hereby represent and warrant that no data You upload to the Services violates the rights of any third party. STRATEOS SHALL HAVE NO RESPONSIBILITY OR LIABILITY RELATED TO CUSTOMER’S BREACH OF THE AFOREMENTIONED REPRESENTATION AND WARRANTY.
b. Strateos will retain all electronic data supporting Customer’s projects (“Customer Data”) for one year following the date of the final project run or for such shorter period as may be required by applicable law. At the end of such period, Strateos may, in its sole discretion: 1) extend storage of the data at Customer’s expense; or 2) dispose of the data unless it must be retained for legal reasons.
c. It is Customer’s responsibility to ensure Customer Data has been retrieved from the Services prior to deletion; provided that, Strateos will make reasonable efforts to contact Customer prior to deleting Customer Data.
d. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Customer Data and Confidential Information (as defined in Section 6 below). Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data that constitutes Confidential Information by Our personnel unless 1) to provide the Services and prevent or address service or technical problems; 2) as compelled by law or legal process (Compelled Disclosure); or 3) as You expressly permit in writing.
4. CUSTOMER REPRESENTATIONS AND COMMITMENTS
a. Customer is solely responsible for the Protocol. The Services are being performed for, on behalf of and/or as specified by Customer in the Protocol.
b. Customer represents, warrants and covenants that it has all rights and licenses necessary: (i) in and to the Customer Materials and Customer Data, to allow Strateos to perform the Services; and (ii) to make, use and ship Resulting Deliverables anywhere in the world that Customer directs.
c. Customer further represents, warrants and covenants that neither the Protocol, Resulting Deliverables or Customer Data, nor the performance hereunder, production, shipment or use thereof by or on behalf of Strateos or Customer anywhere in the world do or will infringe or violate any right of any third party, any law or regulation of any country or authority or pose any physical danger or safety risk.
d. Customer shall cooperate with Strateos by making available such personnel and information as may be reasonably required, and taking such other actions as Strateos may reasonably request to developing and executing the Protocol. Customer will also cooperate with Strateos in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
e. In the Order, Customer shall designate an employee as its “Primary Contact;” such primary contact will be responsible for all matters relating to the Terms and Customer’s obligations hereunder.
f. Customer is responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent. Customer shall immediately notify Strateos of any unauthorized uses of Customer’s account or any other known breaches of security about which Customer becomes aware.
g. Customer shall not label, describe or assign project names in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and Strateos may change or remove any description or project name that it considers inappropriate or unlawful, or otherwise likely to cause Strateos liability.
h. Strateos will not be liable for any acts or omissions by Customer, including any damages of any kind incurred as a result of such acts or omissions or for Customer breaches of the Terms.
i. Customer will indemnify, defend and hold harmless Strateos and its officers, directors, personnel, contractor, stockholders, affiliates and the like from all damages, settlements, costs, legal fees and other expenses in connection with any breach of the Terms.
a. Customer shall be and remain the exclusive owner or licensee of Customer Materials, Customer Data and all information, records, raw data, and specimens generated as a direct result of Your use of the Services.
b. Customer owns all right, title and interest in and to the Resulting Deliverables.
c. Notwithstanding anything to the contrary in the foregoing, Strateos and its licensors retain exclusive ownership, right, title and interest in: 1) all intellectual property that preexisted Our relationship with You and which is incorporated or used in association with the design and development of a Protocol or Resulting Deliverable; 2) any works created by Strateos pursuant to its performance of the professional and/or protocol design Services, including, but not limited to, any proposal, draft, or preparatory materials (collectively “Strateos IP”); and 3) all (i) derivatives, improvements, enhancements or extensions of the Strateos IP, and (ii) all ideas, concepts, know-how, and techniques, that We may use, conceive of or first reduce to practice in connection with the professional or protocol design Services that are not uniquely applicable to Customer or that have general applicability in the art.
d. Upon payment when due of all design Services fees and/or professional Services fees set forth in an applicable Order, Strateos will grant to Customer a non-exclusive, non-transferable, royalty-bearing license to use the Strateos IP as incorporated in the Resulting Deliverable, provided that Customer will have no right to use such Strateos IP separate or apart from exploiting its rights in a Resulting Deliverable.
a. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose sensitive, proprietary and/or confidential information relating to the Disclosing Party’s technology or business (collectively referred to as “Confidential Information” of the Disclosing Party). Confidential Information must be marked as such, or of a nature that no reasonable person could construe that the same was not considered confidential information of the Disclosing Party at the time of disclosure.
b. The Receiving Party agrees: 1) not to divulge to any third person any such Confidential Information without prior written consent from the Disclosing Party, 2) to give access to such Confidential information solely to those employees with a need to have access thereto for purposes of the affecting rights and obligations under the Terms, and 3) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential information that the party takes with its own proprietary and confidential information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document: 1) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or 2) with supporting evidence, was in its possession or known by it prior to receipt from the Disclosing Party, or 3) was rightfully disclosed to it by a third party that was not restricted from disclosing it, or 4) was independently developed without use of or reliance on any Confidential Information of the Disclosing Party.
c. Nothing in the Terms will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Strateos may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance.
d. The terms of confidentiality shall not be construed to limit Our right to operate and independently develop or provide Services to third parties without use of a Your Confidential Information. You acknowledge that We may currently or in the future be developing information internally, or receiving information from third parties, that is similar to the Confidential Information. Accordingly, nothing in the Terms will prohibit Us from developing or having developed, products, concepts, systems, or techniques that are similar to or compete with the products, concepts, systems or techniques provided that We do not violate the Terms of non-use of Customer’s Confidential Information in connection with such development. Furthermore, nothing contained herein shall be construed as imposing any restriction on Us as relates to any general learning, skills or know-how developed by Us during the course of performing our obligations hereunder so long as such disclosure and use would be regarded by a person of ordinary skill in the relevant area of expertise as not constituting a disclosure or use of Confidential Information.
7. PAYMENT OF FEES; SHIPPING
a. Subscription Fees for Access. Access to Strateos Services is via a subscription. Subscriptions are on a monthly or annual basis (“Subscription Term”). Subscriptions allow for accessibility to Services tiered by priority, with higher priority tiers being of higher value (see: https://learn.transcriptic.com/blog/2017/3/1/new-subscription-tiers). Subscription fees will remain fixed during a Subscription Term unless You upgrade or revise Services by tier. At that point, Subscription fees will increase or decrease during the next billing cycle to reflect the corresponding tier pricing. There are no true ups.
b. Additional Fees. Additional fees apply for additional Services by Order. All payments will be made in accordance with the payment schedule and the method of payment specified in the Order. If not otherwise specified, payments will be due within thirty (30) days of invoice.
c. Shipment of Resulting Deliverables. Shipping is FOB Strateos’s point of shipment. Customer will pay any costs of shipping and all risk of loss will pass to Customer at the time of delivery to the shipper.
d. Late Payments; Failure to Pay. Late payments are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable attorneys’ fees. We may suspend, limit, or terminate the Services and/or Subscription Services for any reason at any time due to your failure to make timely payment or for inactivity for a ninety (90) day period.
e. Taxes. Fees are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Strateos's net income) unless Customer has provided Strateos with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
a. In the event of any material breach of the Terms, the non-breaching party may terminate the agreement between the Parties by giving thirty (30) days prior written notice to the breaching party; provided, however, that the Terms will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period.
b. All Terms and conditions which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, representations, warranties, covenants, indemnities, warranty disclaimers and limitations of liability.
9. WARRANTY DISCLAIMERS
a. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE HEREUNDER, THE SERVICES, RESULTING DELIVERABLES, TRANSCRIPTIC CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THE TERMS ARE PROVIDED "AS-IS," WITHOUT ANY IMPLIED WARRANTIES OF ANY KIND. TRANSCRIPTIC HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
b. Strateos has not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which the Services link, or that link to the Services. Strateos does not have any control over those non-Strateos websites and webpages, and is not responsible for their content or their use. By linking to a non-Strateos website or webpage, Strateos does not represent or imply that it endorses such website or webpage. TRANSCRIPTIC DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR USE OF NON-TRANSCRIPTIC WEBSITES AND WEBPAGES.
10. INDEMNIFICATION AND LIMITATION OF LIABILITY
a. Indemnification by Us. We will defend You against any third party claim, demand, suit or proceeding brought against You to the extent that a Service used in accordance with the Terms infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and pay the damages and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of a Claim against You, but only if: 1) You notify Us promptly upon learning that the claim might be asserted; 2) Strateos had sole control over the defense and any negotiation for its settlement or compromise; and 3) You provided such assistance as We may have reasonably requested. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our sole discretion and at no cost to You 1) modify the Service so that it is no longer infringing, 2) obtain a license for Your continued use of that Service in accordance with the Terms, or 3) terminate the infringing Service upon 30 days’ written notice. The above defense and indemnification obligations do not apply to the extent a claim made is in connection with Your breach of this Agreement.
b. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us for any breach of warranty, covenant or representation made hereunder, or for claims brought by a third party alleging that use of Customer Materials or by virtue of for Your contributions to a Protocol infringe or misappropriate a third party’s intellectual property rights or violate applicable law (a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us or for any amounts paid by Us under a court-approved settlement of a Claim Against Us, provided We 1) promptly give You written notice of the Claim Against Us, 2) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and 3) provide You with assistance as may reasonably be required, at Your expense.
c. Exclusive Remedy. Subject to the limitation of liability herein, this Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10, including for breach of any warranty or representation or third party claims of infringement or misappropriation of any intellectual property rights.
d. Limitations to Obligation to Indemnify. Notwithstanding anything to the contrary in this Section 10, We will not be liable for and will not be required to defend, protect or otherwise indemnify You for: 1) the use of a Service after We have instructed You not to do so; 2) the use of a Service other than as set forth in its technical documentation or the Protocol; 3) the combination of a Service with data, hardware or software provided by anyone other than Us or Our agents; 4) the modification of the Service by anyone other than Us or Our agents; or 5) compliance with designs, specifications or plans furnished by or on Your behalf.
e. Limitation of Liability. IN NO EVENT WILL TRANSCRIPTIC, ITS EXECUTIVES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, PROTOCOL, RESULTING DELIVERABLES OR ANYTHING PROVIDED IN CONNECTION WITH THE TERMS, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THE TERMS OR OTHERWISE ARISING FROM THE TERMS, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF TRANSCRIPTIC HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF TRANSCRIPTIC, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) FIVE THOUSAND DOLLARS, OR (ii) THE FEES PAID TO TRANSCRIPTIC HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
a. If any provision of the Terms are found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms will otherwise remain in full force and effect and enforceable.
b. Customer shall flow all Terms contained herein to any of its permitted collaborators, assigns, clients or partners.
c. A Party hereto may transfer or assign rights and obligations hereunder in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Further notwithstanding the contrary in the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate the Terms upon written notice.
d. Both parties agree that the Terms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Terms, and that all waivers and modifications must be in a writing signed by both parties.
e. No agency, partnership, joint venture, or employment is created as a result of these Terms and Customer does not have any authority of any kind to bind Strateos in any respect whatsoever.
f. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
g. Strateos will not be liable for any loss resulting from a cause over which it does not have direct control.
h. the Terms will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws’ provisions. Any controversy or claim arising out of or relating to the Terms, or the breach thereof, shall be settled by arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc., and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each party will have a right to seek injunctive or other equitable relief in a court of law. The prevailing party will be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. Each party hereby consents to the arbitration in the State of California in the county of San Clara (in the English language).
i. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Strateos. Strateos is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.
j. Except with respect to the obligation to make payment, neither Strateos nor Customer shall be responsible for failure or delay in performance of any obligation related to the Services due to causes beyond its reasonable control, including but not limited to, acts of God, governmental actions, labor difficulty, shortages, civil or military authority, embargo, insurrection, war, transportation problems, interruptions of power or communications, failure of suppliers or natural disasters.