Terms of Use for Cytel Applications
These terms and conditions apply to all users (each, a “User”) of the Cytel Application (as defined below) purchased by the User directly or by User’s employer on behalf of the User (in each case, a “Subscriber”). All access to and use of any Cytel Application is subject to the terms and conditions in these Terms of Use (collectively, the “Terms of Use”). BY ACCESSING, VIEWING OR USING ANY PART OR COMPONENT OF A CYTEL APPLICATION, YOU, AS A USER, AGREE TO BE CONTRACTUALLY BOUND BY THESE TERMS OF USE.
Cytel Inc. (“Cytel”) is providing an application that may be either (i) downloaded and installed on the User’s computer, or (ii) accessed online through the ‘My Cytel’ cloud platform portal hosted by Cytel either by means of an account provided by Cytel or via Subscriber’s Single Sign-On (SSO) identify provider (in each case, the “Cytel Application”).
Cytel grants User a nonexclusive, personal, nontransferable, revocable, limited license to access and use the Cytel Application only in accordance with these Terms of Use. User's binding obligations under these Terms of Use are in consideration of Cytel's grant of license to use the Cytel Application. The Cytel Application includes all content, know-how and services produced, distributed or provided by Cytel in, on or through the Cytel Application and all software and other technology hosted or used by Cytel to provide the Cytel Application (collectively, the "Cytel Materials"). The Cytel Materials are made available to User either in connection with User’s access to an on-premise Cytel Application or as part of the Cytel platform that has been provided to the Subscriber on a paid subscription basis (“Subscribed Services”).
B. Permitted Use of Subscribed Services
Access to, and use of, the Subscribed Services is subject to terms and conditions set forth in a separate master agreement (as such agreement may be amended from time to time, the "Services Agreement") between Cytel and a User or Cytel and the Subscriber in addition to these Terms of Use. User agrees that it has been authorized by Subscriber to use the Cytel Application covered by the Subscribed Services and that User is permitted to use the Cytel Application solely as described above. In addition to each User’s personal obligation to comply with these Terms of Use, User acknowledges that Subscriber is responsible under the Services Agreement for strict compliance by all of its Users.
User shall not access or use the Cytel Application or Cytel Materials except to the extent expressly permitted by these Terms of Use, or as otherwise expressly permitted in writing by Cytel.
User shall not access or attempt to access any Cytel Materials other than through Subscribed Services or use of an on-premise Cytel Application for which s/he is authorized, or otherwise circumvent or attempt to circumvent any access restrictions or controls through hacking or other means. User shall not disclose his/her assigned user name or password to anyone. Without limitation to any other available contractual, legal or equitable remedies, Cytel reserves the right to revoke, suspend or terminate, without notice, User’s access to the Cytel Application upon any violation or suspected violation of these Terms of Use.
Cytel and its affiliates own and use certain registered and unregistered service marks, trademarks, slogans, logos, symbols, graphics and distinctive trade dress in connection with the Cytel Application (the "Cytel Marks"). Except for the limited rights granted to User in these Terms of Use, all rights, title, and interest in the Cytel Materials and Cytel Marks, in all formats and media throughout the world, including all copyrights, are and will continue to be the exclusive property of Cytel, its affiliates and their licensors. These Terms of Use do not grant User any right or license with respect to the Cytel Materials or Cytel Marks except to the minimum extent necessary to exercise the limited license provided herein, and to use, reproduce and distribute Cytel Materials as permitted by these Terms of Use or any applicable Services Agreement.
Without limitation to any other restriction, obligation or condition in these Terms of Use, User shall not, under any circumstances by any means or for any purpose whatsoever, intentionally or unintentionally do or attempt to do any of the following:
- search, view, print, reproduce, download, store, modify, disclose, distribute, transmit or publish any Cytel Materials, in whole or part, except as expressly permitted by these Terms of Use or otherwise authorized by Cytel in writing;
- remove, alter or obscure any citation or attribution of the author or source, or any notice of copyright, trademark or other proprietary rights on any Cytel Materials or make any use of the Cytel Marks without Cytel's prior written consent;
- interfere with any other user's access, use or enjoyment of the Cytel Application;
- use the Cytel Application or Cytel Materials in a manner contrary to or in violation of any applicable law, regulation or rule of any jurisdiction, governmental agency;
- use any Cytel Application to store, distribute or transmit any material without authority or right to do so or in violation of any contractual or fiduciary duty, or that is otherwise unlawful, harmful, threatening, defamatory, obscene, harassing, disparaging of any person or group on the basis of race, ethnicity, religion, age, gender or sexual orientation;
- access or use any content, materials or services not intentionally provided or otherwise made available by Cytel;
- reverse compile, disassemble, reverse engineer or otherwise seek to discover the source code form of any Cytel software or other technology, except as may be allowed by applicable law which is incapable of exclusion by agreement between the parties;
- introduce any virus, denial of service attack or other potentially harmful or malicious software code or device into the Cytel Application or Cytel Materials, or use the Cytel Application in any manner that might destroy, damage or degrade performance of any data communications facility, network, server, system, component, software or data used to deliver the Cytel Application;
- use, reproduce, download or transmit any Cytel Application or Cytel Materials for the purpose of providing any services to third parties (whether or not for a fee), or otherwise exploit any Cytel Application or Cytel Materials to Cytel's commercial disadvantage; or
- transfer, either permanently or temporarily, any rights or obligations under these Terms of Use.
G. Warranty Disclaimers and Exclusion of Liability
CYTEL MAKES NO EXPRESS WARRANTIES OR REPRESENTATIONS OF ANY KIND UNDER THESE TERMS OF USE TO USER AND CYTEL HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF QUALITY, ACCURACY, COMPLETENESS, TIMELINESS, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE CYTEL APPLICATION AND CYTEL MATERIALS. USER ASSUMES THE ENTIRE RISK AS TO THE USE, RESULTS AND PERFORMANCE OF THE CYTEL APPLICATION AND SYSTEMS. IN NO EVENT WILL CYTEL, ITS AFFILIATES OR THEIR SUPPLIERS OR LICENSORS HAVE ANY LIABILITY TO USER UNDER THESE TERMS OF USE OR ON THE BASIS OF TORT OR ANY OTHER LEGAL THEORY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY AMOUNT RESULTING FROM (I) THE PROVISION, USE OR RESULTS OF THE CYTEL APPLICATION, THE CYTEL MATERIALS OR ANY SERVICES OR SYSTEMS PROVIDED BY OR FOR CYTEL (INCLUDING, WITHOUT LIMITATION, THE SUBSCRIBED SERVICES), ANY DELAYS, ERRORS OR OMISSIONS THEREIN OR ANY DEFECT OR LACK THEREIN OF QUALITY, ACCURACY, COMPLETENESS, TIMELINESS, AVAILABILITY OR PERFORMANCE; (II) ANY LOSS OR DESTRUCTION OF USER DATA OR INFORMATION, OR THE COST OF RECOVERING SUCH DATA OR INFORMATION; (III) THE COST OF SUBSTITUTE OR REPLACEMENT SERVICES; (IV) LOST BUSINESS OPPORTUNITY, REVENUE OR PROFITS; (V) LIABILITY TO THIRD PARTIES; OR (VI) ANY OTHER CAUSE WHATSOEVER, EVEN IF CYTEL OR ITS AFFILIATES, SUPPLIERS OR LICENSORS WERE ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. IF USER OBJECTS TO THESE TERMS OF USE, AS AMENDED BY CYTEL FROM TIME TO TIME, THE USER'S ONLY RECOURSE IS TO IMMEDIATELY DISCONTINUE USE OF THE CYTEL APPLICATION. The CYTEL APPLICATION, THE CYTEL MATERIALS OR ANY SERVICES OR SYSTEMS PROVIDED BY OR FOR CYTEL may contain or otherwise make use of software, applications, programs, products, code, content, data, documentation, or other materials provided or made available by third parties (INCLUDING, WITHOUT LIMITATION SUBSCRIBER), including, without limitation, “open source” or “freeware” software (“Third Party Materials”), and user may use or otherwise access such Third Party Materials in connection with its use of, or access to, the CYTEL APPLICATION, THE CYTEL MATERIALS OR ANY SERVICES OR SYSTEMS PROVIDED BY OR FOR CYTEL. Third Party Materials may be licensed under additional or other license terms that accompany such Third Party Materials and Customer agrees to be bound by, and shall comply with, the provisions of such license terms. Nothing in this Agreement limits user’s rights under, or grants user rights that supersede, the license terms that accompany any Third Party Materials. FURTHER, USER acknowledges and agrees that (i) as between USER and Cytel, USER is responsible for its use of any third party applications, programs, products or services deployed by USER OR THE SUBSCRIBER in connection with its use of, or access to, the CYTEL APPLICATION OR CYTEL MATERIALS and (ii) Cytel shall have no liability to user or any third parties for any claims, suits, actions or proceedings related to user’s use of such third party applications, programs, products or services.
H. Governing Law; Jurisdiction and Venue
Any claim, action, suit, proceeding or dispute arising out of these Terms of Use shall in all respects be governed by, and interpreted in accordance with, the substantive law of the Commonwealth of Massachusetts, without regard to the conflicts of laws provisions thereof. The parties hereby consent, acknowledge and agree that venue and jurisdiction for any action, suit or proceeding arising out of these Terms of Use shall vest exclusively in the federal or state courts of general jurisdiction located in Suffolk County, Massachusetts.
I. Amendment and Waiver; Severability
Cytel may update or otherwise amend these Terms of Use at any time without notice. User are bound by these Terms of Use then in effect each time they access or use the Cytel Application. The provisions of the Services Agreement, if in effect between Cytel and a Subscriber, shall take precedence over any conflicting or inconsistent provision in these Terms of Use. No waiver of any right or remedy on one occasion by Cytel shall be deemed a waiver of such right or remedy on any other occasion. In the event that any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms of Use will continue in full force and effect.