Terms and Conditions of Service


Please read the following Terms and Conditions of Service carefully before accessing and using the BiomarkerBase services (defined below).

These Terms and Conditions of Service (this “Agreement”) governs your use of the BiomarkerBase services unless you and Amplion Inc. (“Amplion”) have executed a separate written agreement governing use of the BiomarkerBase Services.

Amplion is willing to provide the BiomarkerBase Services to you only upon the condition that you accept all the terms contained in this Agreement. By clicking on the checkbox marked “Accept” on the registration page you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then you must not accept this Agreement and you may not use the BiomarkerBase Services.

We reserve the right at any time to (a) change the terms and conditions of this Agreement, (b) change the scope of the BiomarkerBase Services, including eliminating or discontinuing any feature, or (c) change any fees or charges for use of the BiomarkerBase Services. Any changes we make will be effective immediately upon notice, which we may provide by means including, without limitation, posting at www.biomarkerbase.com/terms or electronic mail. Your continued use of the BiomarkerBase Services after such notice will be deemed acceptance of such changes. Be sure to return to this page periodically to ensure familiarity with the most current version of this Agreement. Upon our request, you agree to sign a non-electronic version of this Agreement.

Definitions

“BiomarkerBase Services” means Amplion’s database of biomarker information.

“Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.

“Order Schedule” means a document by which you order BiomarkerBase Services. The document may be a Amplion order schedule or a written purchase order or other document issued by you that references this Agreement.

BiomarkerBase Services

Authorized Users

You may select individuals (employees or independent contractors) to access and use the BiomarkerBase Services on your behalf and obtain separate credentials, e.g., user IDs and passwords, from Amplion for such individuals (each, an “Authorized User”). You will at all times be responsible for all actions taken under an Authorized User’s account, whether such action was taken by an Authorized User or by another party, and whether such action was authorized by an Authorized User. You are responsible for the security of each Authorized User’s credentials and will not share (and will instruct each Authorized User not to share) such credentials with any other person or entity or otherwise permit any other person or entity access or use the BiomarkerBase Services.

Provision of BiomarkerBase Services

Subject to your compliance with the terms and conditions of this Agreement and for the BiomarkerBase Services Term (defined below), Amplion will provide you with BiomarkerBase Services. If you selected and purchased access to the BiomarkerBase Services as a commercial entity, then you may access and use the BiomarkerBase Services solely for your internal business purposes and solely by no more than the number of Authorized Users specified in an Order Schedule. If you selected access to the BiomarkerBase Services under the Academic Program, then (a) you represent and warrant that you are an educational or academic institution, and (b) you may access and use the BiomarkerBase Services solely for non-commercial, research and academic purposes (specifically excluding conducting research sponsored by commercial entities or any for profit use or research) and solely by Authorized Users that are employees or students of your institution.

BiomarkerBase Services Restrictions

You acknowledge and agree that (1) if you selected and purchased access to the BiomarkerBase Services as a commercial entity, then the BiomarkerBase Services are for your internal business purposes only and you will not use the BiomarkerBase Services for any other purpose, or (2) if you selected access to the BiomarkerBase Services under the Academic Program, then the BiomarkerBase Services are solely for non-commercial, research and academic purposes and you will not use the BiomarkerBase Services for any other purpose.

You will not interfere with or disrupt the BiomarkerBase Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the BiomarkerBase Services). You will not: (a) copy, modify or reverse engineer the BiomarkerBase Services; (b) rent, lease, sell, resell or otherwise provide access to the BiomarkerBase Services on a time-share or service bureau basis; (c) reproduce re-create all or a part of the database that comprises the BiomarkerBase Services, (d) “frame” or “mirror” any part of the BiomarkerBase Services; or (e) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine”, “scrape” or in any way reproduce or circumvent the navigational structure or presentation of the BiomarkerBase Services or its contents. You may not access or use (or permit a third party to access or use) the BiomarkerBase Services for purposes of monitoring the availability, performance or functionality of the BiomarkerBase Services or for any other benchmarking or competitive purposes.

Ownership

As between Amplion and you, Amplion owns all worldwide right, title and interest in and to the BiomarkerBase Services and underlying database, including all Intellectual Property Rights therein. You understand and agree that the BiomarkerBase Services, including the underlying database, contains information that is created and maintained by Amplion at great effort and expense, and the database structure created and maintained by Amplion, under which the information is stored and retrieved, is unique and highly valuable. You do not and shall not acquire any ownership in the BiomarkerBase Services or underlying database. To the fullest extent recognized by current and future law, the parties agree that the information, functions, design and layout of the BiomarkerBase Services and underlying database shall be a protectable asset of Amplion and any copies of the BiomarkerBase Services, or the underlying database, in whole or in part, including translations, compilations, partial copies, modifications, and updates are and shall be the exclusive property of Amplion.

No Warranty

THE BIOMARKERBASE SERVICES ARE PROVIDED AS “AS IS,” WITHOUT WARRANTY OF ANY KIND. AMPLION DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AMPLION OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. AMPLION DISCLAIMS ANY WARRANTY THAT THE BIOMARKERBASE SERVICES WILL BE ERROR- FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. You assume sole responsibility and liability for results obtained from the use of the BiomarkerBase Services and for conclusions drawn from such use. Amplion will have no liability for any claims, losses, or damages caused by errors or omissions in any results produced by the BiomarkerBase Services.

Your Obligations

You will ensure that Authorized Users comply with the terms and conditions of this Agreement. You will promptly notify Amplion of any suspected or alleged breach of this Agreement and will cooperate with Amplion with respect to: (i) any investigation by Amplion of any suspected or alleged breach of this Agreement; or (ii) any action by Amplion to enforce the terms and conditions of this Agreement. Amplion may suspend or terminate any Authorized User’s access to the BiomarkerBase Services without prior notice to you in the event that Amplion reasonably determines that such Authorized User has breached this Agreement.

You will defend, indemnify and hold Amplion harmless from and against any damages, costs and expenses (including reasonable attorneys' fees and other professional fees) that are awarded against Amplion in a final non-appealable judgment or that are agreed to in settlement of a third party claim based on or arising out of any product liability or other liability resulting from your or an Authorized User’s use of the BiomarkerBase Services.

Limitation of Liability

Exclusion of Damages

IN NO EVENT WILL AMPLION BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, OPERATION OR PERFORMANCE OF THE BIOMARKERBASE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT AMPLION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

Total Liability

AMPLION’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE AMOUNTS PAID TO AMPLION BY YOU FOR THE SPECIFIC BIOMARKERBASE SERVICES GIVING RISE TO A CLAIM FOR LIABILITY HEREUNDER.

Term and Termination

Agreement Term

This Agreement will commence on the date you accept it and, unless terminated earlier by either party in accordance with the terms of this agreement, will continue for the term specified in the applicable Order Schedule (the “BiomarkerBase Services Term”).

Termination for Breach

Amplion will have the right to terminate this Agreement if you breach any material term of this Agreement and fail to cure such breach within thirty (30) days after written notice thereof.

Effect of Termination

Upon the expiration or termination of this Agreement your and your Authorized Users’ right to access and use the BiomarkerBase Services will immediately terminate, and you and your Authorized Users will immediately cease all use of the BiomarkerBase Services.

Survival

The rights and obligations of Amplion and you contained in the following sections will survive the expiration or termination of this Agreement: “BiomarkerBase Services Restrictions”, “Ownership”, “No Warranty”, “Your Obligations”, “Limitation of Liability”, “Survival”, and “General”.

General

This Agreement will be governed by and construed in accordance with the laws of the State of Oregon, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Amplion’s prior written consent, and any attempt by you to do so, without such consent, will be void. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable Order Schedule or to such other address as may be specified by either party to the other in accordance with this section. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment that you may request of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of Amplion. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement (including all Order Schedules) is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Amplion have executed a separate written agreement governing use of the BiomarkerBase Services. Any terms or conditions contained in your purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Amplion and will be deemed null. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

Contact Information

If you have any questions regarding this Agreement, you may contact Amplion at support@amplion.com.