ATTENTION: PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THIS WEB SITE. USING THIS WEB SITE INDICATES THAT YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS ("TERMS"), DO NOT USE THIS WEB SITE.
Use of Site. One Lambda authorizes you to view, print and download the materials at this Web site ("Site") only for your personal, non-commercial use, provided that you retain all copyright and other proprietary notices contained in the original materials on any copies of the materials downloaded or printed from the Site. You may not modify the materials at this Site in any way or reproduce or publicly display, perform, or distribute or otherwise use them for any public or commercial purpose. For purposes of these Terms, any use of these materials on any other Web site or networked computer environment for any purpose is prohibited. The materials at this Site are copyrighted and any unauthorized use of any materials at this Site may violate copyright, trademark, and other laws. You agree that you will not disclose, republish, reproduce, or distribute any of the information displayed on or comprising this Site (the "Content") or make any use of the Content that would allow a third party to have access to the Content. If you breach any of these Terms, your authorization to use this Site automatically terminates and you must immediately destroy any downloaded or printed materials.
Modification of Terms. One Lambda may modify these Terms at any time, and such modifications shall be effective immediately upon posting of the modified Terms. You agree to review these Terms periodically to be aware of such modifications and your continued access or use of the Site shall be deemed your conclusive acceptance of the modified Terms.
Use of Knowledgebase. If you desire to use the product Knowledgebase on this Site, you must complete the User Registration Form with current, accurate and complete information and then keep all registration current, accurate and complete. One Lambda will review registration forms and notify the submitter if the registration is accepted or rejected, in One Lambda's sole discretion and for any reason. Once accepted, you will be allowed to search product articles subject to these Terms. You will be solely responsible for maintaining the confidentiality of your Login Name and Passwords and will immediately notify One Lambda of any breach in security. One Lambda and affiliate firms have devoted the utmost care to collecting and updating the information on the Knowledgebase module. However, should you become aware of errors held in the Materials, please contact our customer service department by e-mail at email@example.com.
Forbidden use. By using the Knowlegebase, the User agrees to not use the Content and Materials in any way that is prohibited or that can damage One Lambda or its partners.
It is strictly prohibited:
Use of Software. If you download and install any software from this Site ("Software"), use of the Software is subject to the terms of the One Lambda, Inc. Software License Agreement.
Proprietary Materials. Trademarks, logos, images, illustrations, video clips, files text and graphics used or displayed at this Site are copyrights, trademarks, and or intellectual property owned, controlled, registered or licensed by One Lambda or its affiliates or third party owners. Nothing contained on this Site is to be construed as granting, by implication, estoppel, or otherwise, any license or right of use of any such trademark without the prior written permission of One Lambda or such third party owner.
User Submissions. Other than personally identifiable information, which is covered under the One Lambda Privacy Statement, any material, information or other communication you transmit or post to this Site ("Communication") is, and will be treated as, non-confidential and non-proprietary, and may be used by One Lambda and its affiliates for any purpose without compensation to you.
Discussion Forums. One Lambda may, but is not obligated to, monitor or review any areas on the Site where users transmit or post Communications or communicate solely with each other, including but not limited to discussion forums, bulletin boards or other user forums, and the content of any such Communications. One Lambda, however, will have no liability related to the content of any such Communications, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise. One Lambda retains the right to remove messages that include any material deemed abusive, defamatory, obscene or otherwise unacceptable.
Links To Other Web Sites. Links to third party Web sites on this Site are provided solely as a convenience to you. If you use these links, you will leave this Site. One Lambda has not reviewed all of these third party sites and does not control and is not responsible for any of these sites or their content. Thus, One Lambda does not endorse or make any representations about them, or any information, software or other products or materials found there, or any results that may be obtained from using them. If you decide to access any of the third party sites linked to this Site, you do this entirely at your own risk.
You also understand that One Lambda cannot and does not guarantee or warrant that files available for downloading through the Site are or will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Site for the reconstruction of any lost data.
Disclaimer. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE. THE MATERIALS PROVIDED AT THIS SITE ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATIONS AND WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. It is solely your responsibility to evaluate the accuracy, completeness and usefulness of all opinions, advice, services, merchandise and other information provided through the Site. One Lambda further does not warrant the accuracy, currency, and completeness of the materials at this Site. One Lambda may make changes to the materials at this Site, or to the products and prices described in them, at any time without notice. The materials at this Site may be out of date, and One Lambda makes no commitment to update the materials at this Site. INFORMATION PUBLISHED AT THIS SITE MAY REFER TO PRODUCTS, PROGRAMS OR SERVICES THAT ARE NOT AVAILABLE IN YOUR COUNTRY. SUCH REFERENCES DO NOT IMPLY THAT One Lambda INTENDS TO MAKE THEM AVAILABLE IN YOUR COUNTRY. Consult your local One Lambda business contact for information regarding the products, programs and services that may be available to you. Applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to you. All orders are subject to acceptance by One Lambda. One Lambda' obligations and responsibilities regarding its products are governed solely by the agreements under which they are sold and licensed.
Limitation of Liability. IN NO EVENT WILL One Lambda, ITS SUPPLIERS, OR OTHER THIRD PARTIES MENTIONED AT THIS SITE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OR RELIANCE ON THIS SITE, ANY WEB SITES LINKED TO THIS SITE, OR THE MATERIALS OR INFORMATION CONTAINED AT ANY OR ALL SUCH SITES, OR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES AT THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE MATERIALS OR INFORMATION FROM THIS SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ALL COSTS THEREOF. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Indemnification. You agree to indemnify, defend and hold harmless One Lambda, its officers, directors, employees, agents, affiliates, licensors, suppliers and any third party information providers to the Site from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of these Terms by you.
Miscellaneous. These Terms shall all be governed and construed in accordance with the laws of the State of California applicable to agreements made and to be performed in the Commonwealth of Massachusetts. You agree that any legal action or proceeding between One Lambda and you for any purpose concerning these Terms or the parties' obligations hereunder shall be brought exclusively in a federal or state court of competent jurisdiction sitting in the State of California. Any cause of action or claim you may have with respect to the Site must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. One Lambda's failure to insist upon, or enforce strict performance of, any provision of these Terms shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of these Terms. One Lambda may assign its rights and duties under these Terms to any party at any time without notice to you.
Copyright. One Lambda products and services—including images, text, and software downloads (the "content")—are owned either by One Lambda, Inc. or by third parties who have granted One Lambda permission to use the content. One Lambda cannot grant you permission for content that is owned by third parties. You may only copy, modify, publish, display, or license the content if you are granted explicit permission within the End-User License Agreement (EULA) or License Terms that accompany the content by the third party. For more information, regarding the use of images on this site or our collateral material, contact firstname.lastname@example.org.
TERMS AND CONDITIONS OF SALE: Unless otherwise expressly agreed in writing, all sales are subject to the following terms and conditions:
We may modify these Terms from time to time. You understand and agree that these Terms govern your access to or use of the Services effective as of your access to or use of the Services. If we make changes to these Terms, we will notify you, but you should revisit these terms on a regular basis as revised versions will be binding on you. Any such revisions will be effective upon our posting of new Terms. You understand and agree that your continued access to or use of the Services after the effective date of revisions to the Terms indicates your acceptance of the revisions.
DATA AND PRIVACY
GRANT OF RIGHTS; ACCOUNTS
RESTRICTIONS ON YOUR USE OF THE SERVICES AND ASSOCIATED MATERIALS
You shall not use or allow the use of the Services or Associated Materials:
You shall not:
If a component of the Services requires you to use such component, and data generated by such component, for the sole purpose of review and analysis of data generated by OLI instruments, you agree to do so. The components subject to this requirement will be clearly identified on the platform.
We may review your use of the Services for the purposes of determining whether you have complied with these Terms. Any such review shall be conducted during regular business hours at your facilities or through a remote monitoring/connectivity application and shall not unreasonably interfere with your business activities.
We may take preventative or corrective actions relating to your use of the Services to protect OLI, our affiliates, licensors, partners, suppliers and users.
THIRD PARTY APPLICATIONS
The Services may, from time to time, make Thermo Fisher or third-party software applications available to you through use of the Services (“App(s)”). If you elect to download an App, then you may need to agree to separate terms and conditions governing your use of the App. Apps are provided solely as a convenience to you. Third-party Apps are not under our control, and we are not responsible for and do not endorse the content or functions of third party Apps, and you must exercise independent judgment regarding your interaction with all Apps. You should review all terms and policies governing Apps, including privacy and data gathering practices, and should make whatever investigation you feel necessary or appropriate before downloading or using any Apps.
OWNERSHIP; INTELLECTUAL PROPERTY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES, ASSOCIATED MATERIALS AND ANY SUPPORT AND INFORMATION PROVIDED BY US IN CONNECTION WITH THE SERVICES, ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE BASIS” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND.
TO THE FULLEST EXTENT PERMITTED BY LAW, OLI, ITS AFFILIATES, SERVICE PROVIDERS, AGENTS, PARTNERS AND LICENSORS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON‐INFRINGEMENT OR NON‐MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION. NO WARRANTY IS MADE THAT THE SERVICES WILL BE OPERABLE OR ACCESSIBLE, OPERATE IN AN ERROR FREE, BUG FREE, UNINTERRUPTED OR SECURE MANNER, IN COMBINATION WITH THIRD PARTY HARDWARE OR SOFTWARE PRODUCTS, OR THAT OUR SECURITY PROCEDURES AND MECHANISMS WILL PREVENT LOSS OR ALTERATION OF OR IMPROPER ACCESS TO YOUR INFORMATION OR DATA.
YOU ACKNOWLEDGE THAT WE HAVE NO CONTROL OVER THE SPECIFIC CONDITIONS UNDER WHICH YOU USE THE SERVICES. OLI CANNOT AND DOES NOT WARRANT THE PERFORMANCE OF THE SERVICES OR RESULTS THAT MAY BE OBTAINED BY THE USE OF THE SERVICES. THE SERVICES AND ANY SUPPORT OFFERED BY US DOES NOT REPLACE YOUR OBLIGATION TO EXERCISE YOUR INDEPENDENT JUDGMENT IN USING THE SERVICES.
Certain states and/or jurisdictions do not allow certain warranty disclaimers, in which case certain disclaimers in this Section 8 may not apply to you.
LIMITATIONS OF LIABILITY
If a third party makes a claim against Thermo Fisher or its directors, officers, shareholders, proprietors, partners, employees, agents, representatives, servants, attorneys, predecessors, successors or assigns, or those of its affiliates (“Thermo Fisher Parties”) related to your use of the Service, your contravention of these Terms, your use of Other User Data, or your provision to us of any Uploaded Data or User Data, then you will indemnify and hold Thermo Fisher Parties harmless from and against any and all claims, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and other costs of defending and/or settling any proceeding) that such Thermo Fisher Parties may suffer or incur as a result of the claim. You will defend such claim, at your expense, if instructed by us.
U.S. GOVERNMENT END USERS
The Services and Associated Materials are copyright protected Commercial Computer Software and Computer Software Documentation as those terms are defined in 48 C.F.R. 2.101. The Government shall obtain only those rights to the Services and Associated Materials as are authorized by 48 C.F.R. 12.212 or 48 C.F.R. 227.7202‐3, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Services and Associated Materials by the U.S. Government shall be governed solely by these Terms.
You agree to adhere to all applicable export control laws and regulations with respect to your use of the Service, and you will not export or re‐export or permit access to the Services or Associated Materials, in whole or in part, directly or indirectly, to any country to which such export or re‐export is restricted by any laws or regulations of the U.S. or the country in which you obtained the Services or Associated Materials, or unless properly authorized by the U.S. Government or other applicable regulatory authority as provided by law or regulation. You represent that you are not named on any U.S. or other applicable government denied‐party list.
European Union End Users. If the Services are used within a Member State of the European Union, nothing in this Agreement shall be construed as restricting any rights available under Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs.
DATA AND PRIVACY
APPENDIX A - DATA PROCESSING TERMS
You are prohibited from uploading Personal Data to Research-Use Only Apps. For the avoidance of doubt, you may upload genetic data and data relating to an individual’s blood and tissue samples to Research-Use Only Apps provided that you comply with these Terms and do not also upload any identifiers that could be used to identify the individual to whom such data relates, including, but not limited to, name, address, contact information, social security number, government ID number, medical record number, full-face photograph or a similar image, any elements of dates (except year) for dates that are directly related to the individual, the age of any individual over 89, or any other unique identifying characteristic or code, unless: (i) the characteristic or code is not derived in any way from an identifier of the individual; (ii) you do not disclose such characteristic or code to any other party, including OLI; and (iii) you do not use the characteristic or code for any purpose other than to re-identify the individual.
These Data Processing Terms constitute a binding agreement between you and us only if and to the extent that: (i) you upload any Personal Data to the Services; and (ii) the GDPR requires that you and we enter into certain data processing terms that comply with Article 28 of the GDPR.
WHEREAS, OLI provides Services to you and/or your affiliates and may receive custody or store, process or gain access to personal data related to your individual contacts or those of its affiliates, as further described in Appendix 1 hereto.
WHEREAS, you are required to conclude certain data processing terms with us to satisfy the requirements of the GDPR.
NOW THEREFORE, in consideration of the foregoing and other valuable consideration, receipt and adequacy of which is hereby acknowledged,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1: Definitions. For the purposes of the Clauses:
Clause 2: Details of the transfer. The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3: Third-party beneficiary clause.
Clause 4: Obligations of the data exporter
The data exporter agrees and warrants:
Clause 5: Obligations of the data importer. The data importer agrees and warrants:
Clause 6: Liability.
Clause 7: Mediation and jurisdiction.
Clause 8: Cooperation with supervisory authorities.
Clause 9: Governing Law. The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10: Variation of the contract. The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11: Subprocessing.
Clause 12: Obligation after the termination of personal data processing services.
APPENDIX 1 - DETAILS OF PROCESSING
This Appendix forms part of the Clauses and must be completed and signed by the parties
Data exporter. The data exporter is your and/or your customers or affiliates.
Data importer. The data importer is us.
Data subjects. The personal data transferred concern data subjects residing in the European Economic Area and Switzerland.
Categories of data. The personal data transferred concern the following categories of data (please specify):
See technical specifications of the Services.
Special categories of data (if appropriate).
See technical specifications of the Services.
Processing operations. The personal data transferred will be subject to the following basic processing activities (please specify):
APPENDIX 2 - TECHNICAL AND ORGANIZATIONAL SECURITY MEASURES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
This Appendix 2 describes the technical and organizational security measures that we shall, as a minimum, maintain to protect the security of the personal data processed in connection with the Services and to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems.
Access Control to Processing Areas. We shall implement suitable measures in order to prevent unauthorized individuals from gaining access to the data processing equipment used for the data processing. Where appropriate, these measures include:
Access Control to Data Processing Systems. We shall implement adequate measures to prevent our data processing systems from being used by unauthorized persons. Where appropriate, these measures include:
Access Control to Use Specific Areas of Data Processing Systems. We shall ensure that the individuals entitled to use our data processing system are only able to access the personal data within the scope and extent covered by their respective authorization and that the personal data cannot be read, copied or modified or removed without authorization. Where appropriate, these measures include:
Transmission Control. We shall implement adequate measures to prevent the personal data from being read, copied, altered or deleted by unauthorized parties during the transmission thereof or during the transport of the data media. Where appropriate, these measures include:
Input Control. We shall implement adequate measures to ensure that it is possible to check and establish whether and by whom the personal data have been put into the data processing systems or removed from such systems. Where appropriate, these measures include:
Availability Control. We shall implement adequate measures to ensure that the personal data is protected from accidental destruction or loss, including measures to restore the availability and access to the personal data in a timely manner in the event of a physical or technical incident. Where appropriate, these measures include:
Separation of Data. We shall implement adequate measures to ensure that personal data collected for different purposes can be processed separately. Where appropriate, these measures include:
APPENDIX 3 - GDPR TERMS
This Appendix 3 applies to us solely to the extent that the GDPR applies to the processing of any personal data that you transfer to us under the Clauses.
For the purposes of this Appendix 3, “controller” means the relevant controller of the personal data.
Further to Article 28 of the GDPR, OLI agrees that it:
Last updated: August 30, 2023
One Lambda, Inc., a part of Thermo Fisher Scientific Inc. (“Seller”) hereby offers for sale to the buyer named on the face hereof (“Buyer”) the services listed on the face hereof (the “Services”) on the express condition that Buyer agrees to accept and be bound by the terms and conditions set forth herein. Any provisions contained in any document issued by Buyer are expressly rejected and if the terms and conditions in this Agreement differ from the terms of Buyer’s offer, this document shall be construed as a counteroffer and shall not be effective as an acceptance of Buyer’s document. Seller’s commencement of the Services provided hereunder will constitute Buyer’s acceptance of this Agreement. This is the complete and exclusive statement of the contract between Seller and Buyer with respect to Buyer’s purchase of the Services. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Seller and Buyer. Seller’s failure to object to terms contained in any subsequent communication from Buyer will not be a waiver or modification of the terms set forth herein. All orders are subject to acceptance in writing by an authorized representative of Seller.
1. Services. Seller’s provision of Services are governed by this Agreement and Seller’s Terms and Conditions of Sale set forth at https://www.thermofisher.com/onelambda/wo/en/terms-conditions.html, which are incorporated by reference into this Agreement. In the event of a conflict between Seller’s Terms and Conditions of Sale and the terms of this Agreement, the terms of this Agreement will control with respect to that conflict. Seller agrees to use its best efforts, business judgment and skill in rendering Services hereunder and all Services provided by Seller under this Agreement shall be conducted in a competent and professional manner. Once the Services have been provided to Buyer, Buyer may make two (2) minor changes to Buyer’s original requirements at no additional charge and subject to Seller’s discretion. Any additional requests for modification of the originally provided Services or requests identified as major-changes to the originally provided Services will be treated as separate requests, necessitating their own agreed-upon requirements, price, and purchase order. Buyer is responsible for verification and validation of the Services.
Seller agrees to provide Buyer with technical support services which include periodic patches for updates and bug fixes at no cost to Buyer. All registered users of the then-current release of the Solution are eligible for free limited technical support to assist with bug fixes. Technical support inquiries will be accepted by telephone during normal business hours or by email at any time and will be answered during normal business hours. Seller will attempt to respond to inquiries within the same business day.
2.1 Fees. Buyer shall prepay to Seller fees set forth on the face hereof for the Services.
2.2 Reimbursement of Expenses. Buyer shall reimburse Seller for all reasonable and necessary expenses incurred or paid by Seller in connection with, or related to, the performance of its Services under this Agreement. Seller shall submit to Buyer itemized monthly statements, in a form satisfactory to Buyer, of such expenses incurred in the previous month. Buyer shall pay to Seller amounts shown on each such statement within 30 days after receipt thereof.
3. Term and Termination. This Agreement shall commence on the Effective Date set forth on the face hereof and shall continue until the completion of the Services (such period, as it may be extended by mutual agreement of the parties hereto, being referred to as the "Contract Period"), unless sooner terminated in accordance with the provisions of this Section 3.This Agreement may be terminated upon written notice to the other party of an “Event of Default.” An Event of Default shall, at the option of the non-defaulting party, be deemed to exist upon the occurrence of one or more of the following events: (i) any material breach in the observance or performance of any term or provision of this Agreement which has not been cured within 30 calendar days of written notice thereof; or (ii) if the other party shall be insolvent or take action or be the subject of any action seeking bankruptcy, insolvency, administration, receivership, arrangement among creditors, or other similar action or shall suffer any such similar action without obtaining dismissal of such action within 60 calendar days after the taking thereof. In the event of such termination, Seller shall be entitled to payment for services performed and expenses incurred prior to the effective date of termination, subject to the limitation on reimbursement of expenses set forth in Section 2.2.
4. Warranty. Buyer expressly acknowledges and agrees that the Services are provided at Buyer’s sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with Buyer. To the maximum extent permitted by applicable law, the Services performed or provided by Seller are provided “as is” and “as available”, with all faults and without warranty of any kind. Seller hereby disclaims all warranties and conditions with respect to the Services, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third party rights. Seller does not warrant that the Services performed or provided by Seller will meet Buyer’s requirements. Seller does not warrant against interference with Buyer’s enjoyment of the Services, that the functions contained in, or Services performed or provided by, the Services will meet Buyer’s requirements, that the operation the Services will be uninterrupted or error-free, or that defects in the Services will be corrected. No oral or written information or advice given by Seller or its authorized representative shall create a warranty. Should the Services prove defective, Buyer assumes the entire cost of all necessary servicing, repair or correction. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to Buyer.
5. Ownership. Buyer acknowledges all inventions, ideas, data, technology, devices, software in whatever form, processes, innovations and improvements, whether or not patentable and whether or not copyrightable, hereafter made, conceived, reduced to practice, created, written, designed or developed by Seller solely or jointly with others during the Contract Period (or thereafter if resulting or directly derived from Proprietary Information, as defined below) shall be the sole property of Seller. The parties agree that this Section shall continue beyond the termination of the Contract Period.
6. Confidentiality. Each party (the “Receiving Party”) acknowledges that its relationship with the other party (the “Disclosing Party”) is one of high trust and confidence and that in the course of performing the services hereunder it will have access to and contact with Proprietary Information (as hereinafter defined). The Receiving Party agrees that it will not, during the Contract Period and for a period of three (3) years after the date of disclosure, disclose to others, or use for its own benefit or the benefit of others, any Proprietary Information, except to such extent as may be necessary in the ordinary course of performing the services or obligations under this Agreement. For purposes of this Agreement, "Proprietary Information" shall mean all information (whether or not patentable or copyrightable) owned, possessed or used by the Disclosing Party, including without limitation any trade secrets, know-how, data, processes, formulas, methods, technology, pricing, and sales and marketing information.
The Receiving Party’s obligations under this Section 6 shall not apply to any information that (i) is or becomes known to the general public under circumstances involving no breach by the Receiving Party of the terms of this Section 6, (ii) is generally disclosed to third parties by the Disclosing Party without restriction on such third parties, (iii) is approved for release by written authorization of the Disclosing Party, (iv) is independently developed by the Receiving Party or (v) is already in the Receiving Party’s possession and was lawfully received from sources other than the disclosing party. Upon expiration or earlier termination of this Agreement, upon request by the Disclosing Party, the Receiving Party shall promptly deliver to the Disclosing Party or destroy all Proprietary Information including records, files, memoranda, notes, data, reports, price lists, customer lists, drawings, plans and other documents (and all copies or reproductions thereof) to the extent the same contain Proprietary Information of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may retain one (1) copy of the Proprietary Information, for archival purposes only.
The parties acknowledge that any breach of the provisions of this Section 6 shall result in serious and irreparable injury to the other party for which the other party cannot be adequately compensated by monetary damages alone. The parties agree, therefore, that, in addition to any other remedy they may have, the aggrieved party shall be entitled to enforce the specific performance of this Agreement by the defaulting party and to seek both temporary and permanent injunctive relief (to the extent permitted by law) without the necessity of proving actual damages.
7. Independent Contractor Status. Seller shall perform all services under this Agreement as an "independent contractor" and not as an employee or agent of Buyer. Seller is not authorized to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, Buyer or to bind Buyer in any manner. Seller shall not be entitled to any benefits, coverages or privileges, including, without limitation, workers compensation, social security, unemployment, medical or pension payments, made available to employees of the Company.
8. Payment of Taxes and Other Payments
8.1. Seller will not be treated as an employee for any reason whatsoever, including but not limited to federal or state tax purposes. Buyer, shall to the extent it is legally required to do so, file all necessary tax information and reports with federal, state and local taxing authorities, including an Internal Revenue Service Form 1099, to report the income of Seller under this Agreement.
8.2. Buyer shall not withhold or pay any taxes, including but not limited to any FICA, FUTA, federal personal income taxes, state personal income taxes, state disability insurance taxes, and state unemployment insurance and any other form of social security, unemployment taxes and/or workers’ compensation, or any other assessments or taxes from the payments that Buyer makes to Seller, unless it is required to do so by law notwithstanding the independent contractual relationship of the parties.
8.3. In the event that Buyer is required to make payments to the Internal Revenue Service for Seller’s share of FICA or withholdings for past payment periods, Buyer shall be entitled to withhold such amounts from future payments hereunder to Seller.
9. Notices. All notices required or permitted under this Agreement shall be in writing and shall be addressed to the other party at the address first above shown, or at such other address or addresses as either party shall designate to the other in accordance with this Section 9. All notices shall be sent by registered or certified mail, return receipt requested, or by Federal Express or other comparable courier providing proof of delivery, and shall be deemed duly given and received (i) if mailed, on the third business day following the mailing thereof, or (ii) if sent by courier, the date of its receipt (or, if such day is not a business day, the next succeeding business day).
10. Governing Law. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of California without reference to its choice of law provisions. Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Los Angeles County, CA, in any action arising out of or relating to this Agreement and waives any other venue to which it may be entitled by domicile or otherwise. In the event of any legal proceeding between Buyer and Seller relating to this Agreement, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury.
11. Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, both parties and their respective successors and assigns. Neither party shall assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except a company that acquires all or substantially all of the assets of Seller, a company with which Seller merges into, or a parent or subsidiary of Seller, in which case, prior written consent from Buyer shall not be required. Any assignment in contravention of these terms and conditions shall be null and void.
12. Severability and Waiver. In the event that any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. No delay or omission by either party in exercising any right under this Agreement shall operate as a waiver of that or any other rights. A waiver or consent given by either party on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.
The Maintenance and Support terms set forth herein apply only to One Lambda, Inc.’s (“LICENSOR”) core, standard, out-of-the-box products licensed to you (“LICENSEE”) and do not apply to any customizations to such products or to any specialty, third-party, or customized products. The terms and conditions contained herein may be updated by LICENSOR at any time for any reason.
For the purpose of this document, “Errors, Defects, and Omissions” means and include deviations within the Licensed Software which prevent its successful operation in accordance with its specifications set forth in the Licensed Material. The Maintenance provisions of this Agreement shall specify, among other things, LICENSOR’s obligations with respect to the following types of Errors, Defects, and Omissions: