Welcome to the website of MolecularMatch, Inc. (“Company”, “we” or “us”). The following terms and conditions (“agreement”) apply to the products and services provided to you by molecularmatch, inc. (“molecularmatch”). Procurement of, use of, or access to such products or services is subject to your, and the entity you represent, (together, “customer”) compliance with this agreement.
1. MolecularMatch Services
1.1. Provision of Services. MolecularMatch offers various products and services (collectively, the “MolecularMatch Services“). The MolecularMatch Services ordered by Customer shall be as set forth in an “Order Form”, meaning such products and services are: (i) selected by Customer via MolecularMatch’s online purchase process or (ii) set forth in a quote or purchase order executed by the parties. Except as otherwise set forth in the purchase process, the MolecularMatch Services are provided on a subscription basis for a Subscription Term (as defined in Section 5.1). In addition to Order Forms, this Agreement also includes any Statements of Work (or similar documents) executed by the parties (if any) (“SOWs”).
1.2. Access to Services. During the applicable Subscription Term, Customer may access and use the MolecularMatch Services solely for the purposes for which they are provided and only in accordance with the terms and conditions of this Agreement and any end user documentation provided, or made available online, by MolecularMatch (“Documentation”). Use of the MolecularMatch Services is permitted only by the number of personnel of Customer specified on the Order Form (“Permitted Users”). Customer may not share user ID’s among multiple users and shall require that all Permitted Users keep any MolecularMatch Services user ID and password information confidential. Customer shall be responsible for all actions taken using Customer’s accounts and passwords in its possession. Customer must immediately notify MolecularMatch in the event a Permitted User violates this Agreement. In addition, as identified in the purchase process or Documentation, other use limitations may apply (such as, use of the MolecularMatch Services may be limited by minutes or number of concurrent sessions). In the event MolecularMatch provides Customer with an application programming interface (“API”), Customer will have a non-exclusive, non-sublicensable, non-transferrable, license to internally use such API for purposes of this Agreement.
1.3. Customer Contractors. Customer may permit its independent contractors who are not competitors of MolecularMatch (“Contractors”) to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor with all of the terms and conditions of this Agreement and any such use of the MolecularMatch Services by such Contractor is for the sole benefit of Customer. For clarity, use of the MolecularMatch Services by Contractors and Customer must be, in the aggregate, within the use restrictions, if any, specified at the time of purchase.
1.4. General Restrictions. Customer shall not (and shall not allow any third party to); (a) rent, lease, copy, provide access to or sublicense any MolecularMatch Services to any third party (except as authorized by Section 1.3 above); (b) use any MolecularMatch Services to help develop, or help provide to any third party, any competitive product or service, (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to any of the MolecularMatch Services (provided that, the foregoing restriction on reverse engineering will not apply to the extent prohibited by applicable law (and then only upon advance notice to MolecularMatch), (d) modify or create derivatives of any of the MolecularMatch Services or any Documentation, (e) send or store in or via the MolecularMatch Services any infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights, (f) send or store in or via the MolecularMatch Services any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs, (g) use the MolecularMatch Services in a manner that Customer should reasonably know may damage or otherwise harm and MolecularMatch systems, networks, equipment or data, (h) use the MolecularMatch Services for any purpose, or in any manner, that violates any laws, regulations or third party rights, (i) remove, alter or obscure any proprietary or other notices contained on or in any MolecularMatch Services (including any reports or data printed from any MolecularMatch Services) or Documentation or (j) publicly disseminate information regarding the performance of the MolecularMatch Services (such as benchmarking results). All information referenced in Section 1.4(j) is MolecularMatch’s Confidential Information (as defined in Section 7) even though it may be originally generated or discovered by Customer. All of the foregoing restrictions will also apply to the API.
1.5. Additional Policies. This Agreement includes, and Customer must comply with, all policies (if any) posted by MolecularMatch on its website.
1.6. Evaluation Use. To the extent the MolecularMatch Services are provided for no charge or on an evaluation basis (in either case, “Evaluation Basis”), the MolecularMatch Services may be suspended or terminated by MolecularMatch at any time, for any or no reason, with or without notice. Customer acknowledges that other sections of this Agreement contain terms and conditions specific to services provided on an Evaluation Basis.
Customer acknowledges that no intellectual property rights are assigned or transferred to Customer hereunder. Customer is obtaining only a limited right to the MolecularMatch Services. Customer agrees that MolecularMatch or its third party providers retain all right, title and interest (including all patents, copyrights, trade secrets and other intellectual property rights) in and to (i) the MolecularMatch Services and Documentation and all related underlying technology; and (ii) any intellectual property it develops in connection with this Agreement. In the event Customer provides MolecularMatch with any suggestions, ideas, improvements or other feedback with respect to any aspect of any of the foregoing (“Feedback”), Customer shall and hereby does grant MolecularMatch (and its successors and assigns) a non-exclusive, perpetual, irrevocable, sublicensable, transferable, royalty-free, fully paid-up, worldwide right and license to copy, reproduce, modify, create derivatives of, display, perform, sell, offer for sale, distribute and otherwise exploit such Feedback for any purpose.
3.1. Fees and Payment. Unless otherwise specified in an Order Form, all fees are payable by Customer at the time of purchase, (or on the date of renewal, as applicable). Use of MolecularMatch Services beyond agreed-to limits may subject Customer to overage fees as set forth at the time of purchase. In addition, MolecularMatch may adjust the fees charged to Customer hereunder on notice (electronic notice is sufficient) delivered to Customer at least thirty (30) days prior to the end of the then-current Subscription Term (and such fees will take effect beginning on the next term). Customer is required to pay any sales, use GST, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of MolecularMatch. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. All fees must be paid in US dollars.
3.2. Suspension of Service. If Customer’s account is overdue, in addition to any of its other rights or remedies, MolecularMatch reserves the right to, with or without notice, suspend Customer’s access to the applicable MolecularMatch Services without liability to Customer until such amounts are paid in full.
4. Term & Termination.
4.1. Term. This Agreement is effective as of the Effective Date and will terminate as set forth below. Each Order Form will have the initial subscription term set forth thereon. Thereafter, each Order Form will automatically renew for successive renewal subscription terms of equal length to its initial subscription term, unless either party provides the other party with notice of non-renewal at least thirty (30) days prior to the expiration of the then-current subscription term (notice may be in writing or account notification). The initial subscription term and all renewals are referred to collectively as the “Subscription Term”. If no initial Subscription Term is set forth in an Order Form, the initial Subscription Term for such Order Form will be one (1) year.
4.2. Termination. This Agreement will automatically terminate if there are no Order Forms in effect. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice (five (5) days in the case of non-payment or in the event Customer breaches any license or use restrictions) (provided that, in the event of Customer’s notice of breach with respect to the MolecularMatch Services, such notice must (i) be sufficiently detailed for MolecularMatch to verify and remedy the issue and (ii) expressly state the intent to terminate); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within ninety (90) days thereafter). With respect to Customer’s breach of its payment obligations, or any license or use restrictions, electronic notice to Customer is sufficient hereunder. Termination of this Agreement will automatically terminate all Order Forms. In addition, Customer may terminate at any time for convenience. Unless termination if for MolecularMatch’s uncured breach – all fees for the then-current term are non-cancellable and non-refundable. Termination notices must be in writing or account notification.
4.3. Effect of Termination. Upon any termination of this Agreement, (i) Customer shall immediately cease all use of and access to the MolecularMatch Services (and, if applicable, the API) and (ii) each party will return to the other party (or destroy) such other party’s Confidential Information. Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
4.4. Survival. The following Sections shall survive any termination of this Agreement: 2, 4.4, 5.3, 6, 7, 8 (to the extent set forth therein) and 9, and all license and use restrictions and outstanding payments obligations.
5.1. Mutual Warranties. Each party represents and warrants that (i) it has the power and authority to execute, deliver, and perform its obligations under this Agreement, (ii) its performance will comply with all applicable laws and regulations and (iii) this Agreement is the valid and binding obligation of the representing party, enforceable against such party in accordance with its terms.
5.2. Services Warranty. MolecularMatch warrants, for Customer’s benefit only, that it will use commercially reasonable efforts to ensure that the MolecularMatch Services will operate in substantial conformity with the applicable Documentation on a 24/7 basis (subject to scheduled downtime, emergency downtime and matters beyond MolecularMatch’s reasonable control). MolecularMatch’ sole liability (and Customer’s exclusive remedy) for any breach of this warranty shall be, in MolecularMatch’ sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects or otherwise remedies the reported non-conformity, or if MolecularMatch determines such remedy to be impracticable, to allow Customer to terminate the Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the MolecularMatch Services for the unexpired remainder of the then-current Subscription Term. The limited warranty set forth in this Section 5.2 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared or (ii) if the error was caused by misuse (other than by MolecularMatch or its contractors), unauthorized modifications by Customer (or any third acting on its behalf), or third-party hardware or software or services.
5.3. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 5.2, THE MOLECULARMATCH SERVICES (AND SOFTWARE, IF ANY) ARE PROVIDED “AS IS”. NEITHER MOLECULARMATCH NOR ITS LICENSORS OR SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTWITHSTANDING THE FOREGOING, SECTION 5.2 WILL NOT APPLY TO ANY SERVICES PROVIDED ON AN EVALUATION BASIS.
6. Limitation on liability
NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF SUCH DAMAGES ARE REASONABLY FORESEEABLE, OR (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO MOLECULARMATCH DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD (OR, IF NO AMOUNTS HAVE BEEN PAID, OR THE SERVICES ARE PROVIDED ON AN EVALUATION BASIS, SUCH AMOUNT SHALL BE US$1,000.00). IN ADDITION, MOLECULARMATCH SHALL HAVE NO LIABILITY FOR MATTERS OUTSIDE OF ITS REASONABLE CONTROL (SUCH AS, ISP OUTAGES). THIS SECTION WILL NOT APPLY TO CUSTOMER’S BREACH OF ANY LICENSE OR USE RESTRICTION CONTAINED IN THIS AGREEMENT.
7. Confidential information
Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the other party (as “Disclosing Party”) constitutes the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. In addition, to the extent Customer has negotiated pricing with MolecularMatch, such pricing is MolecularMatch’s Confidential Information. Except as expressly authorized herein, the Receiving Party will (a) hold in confidence (using reasonable methods or protection) and (b) not use any Confidential Information except in furtherance of this Agreement. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become generally available to the public through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy. Therefore, upon any such disclosure, the Disclosing Party shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.
8. Logo usage
During the term of this Agreement (except during any evaluation period) and for a reasonable wind-down period thereafter, MolecularMatch may use Customer’s name and logo on its website and in marketing materials as part of a general list of customers.
9. General terms
9.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. In the event Customer assigns this Agreement to a MolecularMatch competitor, MolecularMatch may terminate this Agreement on notice. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.
9.2. Force Majeure. Except with respect to Customer’s payment obligations, neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party (“Force Majeure Event”), such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. In the event of a Force Majeure Event that prevents one part from substantially performing its obligations hereunder for a period of ten (10) days or more, either party may terminate this Agreement on five (5) days written notice.
9.3. Subcontractors. MolecularMatch may use the services of subcontractors for performance of services under this Agreement, provided that MolecularMatch remains responsible for compliance of any such subcontractor with the terms of this Agreement.
9.4. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
9.5. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
9.6. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Texas and the United States without regard to the conflict of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”). To the extent available, the JAMS Streamlined Rules will apply. The arbitration shall take place in Houston, Texas, in the English language and the arbitral decision may be enforced in any court. Subject to the foregoing arbitration provision, all disputes arising in connection herewith will be subject to the sole and exclusive jurisdiction and venue of the state and Federal courts located in San Francisco (and the parties each hereby consent and submit to such jurisdiction and venue). The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
9.7. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at: (i) if to Customer, the address listed by Customer during the MolecularMatch Services registration process (or as otherwise later changed by Customer in its MolecularMatch Services account) and (ii) if to MolecularMatch, 2450 Holcombe Blvd., TMC X+ TMC Innovation Institute, Suite 220, Houston, TX 77021. Attn: Legal (or at such other address as may be given by MolecularMatch at any time). Noticed shall be deemed to have been received by the addressee, (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch or (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, to be effective, legal notices to MolecularMatch (such as for breach) must also be provided in email to: email@example.com (subject heading: Attn: Legal Notice) (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence). Notwithstanding the foregoing, an electronic notice to Customer is sufficient to the extent expressly stated in this Agreement. Electronic notices may be delivered via email or to the Customer’s MolecularMatch Services account.
9.8. Amendments; Waivers. MolecularMatch may supplement, amend or otherwise modify this Agreement at any time, by providing Customer with at least thirty (30) days’ notice thereof. In the event of such notice, Customer may terminate this Agreement on written notice delivered to MolecularMatch at least five (5) days prior to the end of the thirty (30) day period. Except as set forth in the preceding sentence, no supplement, amendment or modification of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. To the extent this Agreement conflicts with any Order Form or SOW, the Order Form or SOW (as applicable) shall control (provided that any reference to any other Customer agreement – such as, any Customer online click-through – shall not apply).
9.9. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement, provided that if Customer and MolecularMatch have executed a separate, negotiated, written agreement with respect to the subject matter hereof, such separate agreement will apply to the exclusion of this Agreement.