TERMS OF USE

Welcome to Cytek Cloud, an online platform operated by Cytek Biosciences, Inc. and its affiliated entities (collectively, “Cytek”) at https://cloud.cytekbio.com (“Site”), which provides access to the Services (as defined below). Cytek is providing the Services to you or the legal entity (“Customer”) on whose behalf you are accepting these terms of use (“Terms”), which are effective on the earlier of the date Customer (i) accepts the Terms; (ii) executes a Purchase Order (as defined below) with Cytek; or (iii) first uses the Service(s) (“Effective Date”). These Terms, along with any applicable Quote and/or Purchase Order, describe and set forth the terms governing the relationship between the parties (collectively, the “Agreement”). These Terms supersede all prior or contemporaneous agreements, terms, and understandings between the parties with respect to the Services. Any additional or conflicting terms and conditions contained in any Purchase Order or other document provided by either party shall be null and void and of no force or effect unless expressly agreed to in writing and signed by both parties. Cytek hereby rejects any additional or conflicting terms appearing in a Purchase Order or any other ordering materials originating from any third party, including the Customer, and conditions its acceptance of an order solely based on these Terms and as offered by Cytek.

BY EXECUTING THIS AGREEMENT OR CLICKING ON THE “I ACCEPT” BUTTON, THE INDIVIDUAL SIGNING THIS AGREEMENT (I) AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT, (II) REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT, (III) REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT PRESENTLY DEBARRED, SUSPENDED, PROPOSED FOR DEBARMENT, DECLARED INELIGIBLE OR EXCLUDED FROM PARTICIPATION IN THIS SERVICES OR IN ANY GRANT, BENEFIT, CONTRACT OR PROGRAM BY ANY U.S. FEDERAL OR STATE AGENCY, (IV) REPRESENTS AND WARRANTS THEY ARE AT LEAST 18 YEARS OLD; AND (V) REPRESENTS AND WARRANTS THAT THEY HAVE READ, UNDERSTAND AND AGREE, ON BEHALF OF THEMSELVES AND CUSTOMER, TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY, OR CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE CYTEK PLATFORM.

 

1.                    Definitions. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
   1.                “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Cytek Platform.
   2.                “Authorized User” means each of Customer’s researchers, employees, independent contractors, consultants, and other representatives who are authorized to access the Cytek Platform pursuant to Customer’s rights under this Agreement. For clarity, only certain licenses will permit the inclusion of third parties as Authorized Users subject to approval by Cytek. 
   3.                “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services.
   4.                “Cytek Cloud Basic” means the free version of the Cytek Cloud license with restricted features and functionality as determined by Cytek in its sole discretion.
   5.                “Cytek Cloud Pro” means the paid version of the Cytek Cloud license in either academic or industry form, which allows Customer to leverage the Experiment Builder, Quote Builder, Panel Builder, and/or other paid functionality as set forth in a Purchase Order.
   6.                “Cytek Platform” means Cytek Cloud Basic, Cytek Cloud Pro or any other Cytek software-as-a-service application accessed by Customer and/or identified in a Purchase Order, if applicable, that allows Authorized Users to access certain features and functions through a web interface.
   7.                “Documentation” means the brochure provided by Cytek to Customer in hard copy or electronic form and any other published descriptions of the Cytek Platform.
   8.                “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world. 
   9.                “Purchase Order” means an ordering document or online registration request for purchasing a license to Cytek Cloud Pro that is accepted by Cytek and references these Terms.
   10.            “Results” means results and reports made available to Customer as part of the Services, to the extent same is derived from use of the Services based on Customer Content.
   11.            “Services” means any services provided by Cytek and/or its affiliates to Customer under this Agreement, including, but not limited to, provision of the Cytek Platform.
   12.            “Usage Data” means any data or information relating to Customer’s usage of the Services, such as statistical data, analytics, trends and usage information derived from Customer’s use of the Services.
2.                    Provision of Services.
   1.                Access. Subject to (a) if Customer is purchasing a license to Cytek Cloud Pro, Customer’s payment of the fees set forth in the Purchase Order (“Fees”), and (b) compliance with the terms of this Agreement, Cytek will provide Customer with access to the Cytek Platform. On or as soon as reasonably practicable after the Effective Date, Cytek will provide to Customer the necessary Access Protocols to allow Customer and its Authorized Users to access the Cytek Platform in accordance with the Access Protocols. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Cytek Platform, and notify Cytek at cloudsupport@cytekbio.com promptly of any such unauthorized use known to Customer.
   2.                Support Services. Subject to the terms and conditions of this Agreement, Cytek will exercise commercially reasonable efforts to (a) provide support for the use of the Cytek Platform to Customer, and (b) keep the Cytek Platform operational and available to Customer, in each case in accordance with its standard policies and procedures.
   3.                Hosting. Cytek will provide for the hosting of the Cytek Platform, provided that nothing herein will be construed to require Cytek to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Cytek Platform from the Internet. 
   4.                Purchase of Goods. If Customer purchases any goods, including, but not limited to, any equipment or reagents, through the Site, whether such goods are offered by Cytek or a third party, the terms and conditions specific to the sale of such goods (including any applicable purchase, warranty, return, or support terms) shall govern the purchase. Such goods are not subject to the terms of this Agreement and will be subject instead to the terms of such purchase, and Cytek shall have no liability or obligation with respect to third-party goods. 
   5.                Free Trial. If Cytek has made a part of the Services (or any specific features or functionality thereof) available to Customer on a “free trial”, “pilot” or “pre-release” basis: (i) Cytek will be free to terminate or suspend Customer’s access thereto for any reason at any time and without liability of any kind, and (ii) notwithstanding any other provision of this Agreement, any such access to the applicable part of the Services is provided on an “AS IS” and “AS AVAILABLE” basis without warranty or support of any kind, express or implied. IF CUSTOMER DOES NOT SUBSEQUENTLY PURCHASE A SUBSCRIPTION TO THE SERVICES, CUSTOMER’S FREE TRIAL ACCESS SHALL ROLL-OVER INTO A CYTEK CLOUD BASIC SUBSCRIPTION UPON EXPIRATION OF THE FREE TRIAL, AND CUSTOMER EXPRESSLY AGREES THAT THIS AGREEMENT, AND THE TERMS HEREIN, SHALL GOVERN CUSTOMER’S CONTINUED USE OF SUCH SERVICES.
3.                    Intellectual Property.
   1.                License Grant. Subject to the terms and conditions of this Agreement, Cytek grants to Customer a non-exclusive, non-transferable (except as permitted under Section 13.6 (No Assignment)) license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Purchase Order, to access and use the Cytek Platform. Customer may permit any Authorized Users to access and use the features and functions of the Cytek Platform as contemplated by this Agreement. If Customer purchases a license to Cytek Cloud Pro, Customer may generate, print, copy, upload, download, store, and process any digital, visual and other output, displays, and content as may result from any access to or use of the Cytek Platform, subject to the applicable Purchase Order or license; if Customer uses a license to Cytek Cloud Basic, certain of the foregoing features may not be available. All rights not explicitly granted by Cytek to Customer are fully retained by Cytek.
   2.                Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Cytek Platform or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Cytek Platform or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Cytek Platform or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Cytek Platform, except as permitted by law; (e) interfere in any manner with the operation of the Cytek Platform or the hardware and network used to operate the Cytek Platform; (f) modify, copy or make derivative works based on any part of the Cytek Platform or Documentation; (g) access or use the Cytek Platform to build a similar or competitive product or service; (h) attempt to access the Cytek Platform through any unapproved interface; (i) use the Services for clinical diagnostic purposes; (j) access the Services by any third-party automated program for downloading of data, reports, files, or other information; (k) access the Services by using any third-party deep learning, machine learning, automated decision-making or other artificial intelligence algorithm, program, product, software or technology; (l) circumvent or otherwise interfere with any authentication or security measures of the Services, or otherwise interfere with or disrupt the integrity or performance thereof; (m) use the Services in a manner not contemplated by the Agreement, or in a manner that violates any third-party rights or any applicable laws, rules or regulations, including without limitation laws and regulations; or (n) otherwise use the Cytek Platform in any manner that exceeds the scope of use permitted under Section 3.1 (License Grant). Customer acknowledges and agrees that the Cytek Platform will not be used, and is not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Cytek or its licensors on the Documentation or any copies thereof. If you use the Services in violation of the Agreement or in a way that materially and negative impacts the Services or others, Cytek may, in its sole discretion, terminate or suspend your access to the Services.  
   3.                Competitive Use. Use of the Cytek Platform by any user or third party that has or may be developing a product or service that is competitive or similar to the Cytek Platform is a violation of these Terms. As such, Cytek will periodically review account holder information and may, in its sole discretion, terminate or suspend any account it suspects is violating or is likely to violate this Section 3.3. Questions regarding termination or suspension of an account under this Section 3.3 can be sent to cloudsupport@cytekbio.com.
   4.                Ownership. The Cytek Platform and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Cytek and its suppliers. All rights in and to the Cytek Platform and Documentation not expressly granted to Customer in this Agreement are reserved by Cytek and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Cytek Platform, Documentation, or any part thereof.  
   5.                License to Results. Customer grants Cytek a perpetual, royalty-free, fully paid, nonexclusive, non-transferable (except as permitted under Section 13.6 (No Assignment)), non-sublicensable license to use the Results solely to provide the Services to Customer. Additionally, Customer hereby grants to Cytek a non-exclusive, perpetual, royalty-free, fully paid-up, worldwide license, with the right to grant sublicenses, to download, use, modify, incorporate, and transfer the Results and any Customer Content incorporated therein for any purpose, including, without limitation, Cytek’s research, product development and commercial purposes.
   6.                Open Source Software. Certain items of software may be provided to Customer with the Cytek Platform and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.4 (Ownership) or 10 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Cytek makes such Open Source Software, and Cytek’s modifications to that Open Source Software, available by written request at the notice address specified below. 
   7.                Feedback. Customer may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Service (“Feedback”). All Feedback and changes, modifications or improvements made based on Feedback shall be solely owned by Cytek (including all intellectual property rights therein and thereto) and shall also be Cytek’s Confidential Information. Customer hereby assigns to Cytek, and shall cause its employees, contractors, and representatives to assign, all right, title, and interest in, and Cytek is free to use, without any attribution or compensation to Customer or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Cytek is not required to use any Feedback.
4.                    Fees and Expenses; payments.
   1.                Fees. In consideration for the access rights granted to Customer and the Services performed by Cytek under this Agreement, Customer will pay to Cytek the Fees. Cytek may modify its pricing at any time; Fees may also be based on Customer’s actual usage of resources, including storage, computing power, or similar metrics. Except as otherwise provided in the Purchase Order, Fees are billed annually upfront and due and payable within thirty (30) days of the date of the invoice. All Fees are non-refundable (except as expressly set out in an applicable Agreement or required by law). Customer may elect to pay by credit or debit card, ACH, or bank wire transfer. Cytek will be reimbursed only for expenses that are expressly provided for in a Purchase Order or that have been approved in advance in writing by Customer, provided Cytek has furnished such documentation for authorized expenses as Customer may reasonably request. Cytek reserves the right (in addition to any other rights or remedies Cytek may have) to discontinue the Cytek Platform and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
   2.                Subscription Units. Customer may purchase additional subscription units for the Services during the Term at the then-current per-unit pricing in effect at the time of purchase. All additional subscription units shall renew or terminate concurrently with the Term. Subscription units purchased for the Services may not be reduced or cancelled during the Term.
   3.                Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Cytek’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Cytek Platform to Customer. Customer will make all payments of Fees to Cytek free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Cytek will be Customer’s sole responsibility, and Customer will provide Cytek with official receipts issued by the appropriate taxing authority, or such other evidence as the Cytek may reasonably request, to establish that such taxes have been paid. 
   4.                Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid. 
   5.                Payment Provider. Cytek uses a third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (“Payment Provider”) and may change such payment processor from time to time in its discretion. When Customer signs up for an account on the Cytek Platform, Customer shall provide Customer’s payment details, and any additional information required to complete the order directly to the Payment Provider. Customer agrees to be bound by Payment Provider’s Privacy Policy and its Terms of Service, and hereby consents and authorizes Cytek and Payment Provider to share any information and payment instructions provided to the minimum extent required to complete the transactions. Online payment transactions may be subject to validation checks by the Payment Provider and Customer’s card issuer, and Cytek is not responsible if Customer’s card issuer declines to authorize payment for any reason. The Payment Provider uses various fraud prevention protocols and industry standard verification systems to reduce fraud, and Customer authorizes it to verify and authenticate payment information. Cytek shall not be responsible for any online handling fees or processing fees charged by Customer’s card issuer. Payment Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
   6.                Promotions. Cytek may, in its sole discretion, create discounts and promotional codes or other features or benefits, subject to any additional terms that it establishes. Customer agrees that discounts and promotional codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by Cytek; (iii) may be discontinued by Cytek at any time for any reason without liability; (iv) may only be used pursuant to the specific terms that Cytek establishes for such discounts and promotional codes; (v) are not redeemable for cash; and (vi) may expire prior to use. 
5.                    Customer Content, DATA and Responsibilities.
   1.                License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third-party licenses, consents and permissions needed for Cytek to use the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Cytek to use the Customer Content submitted by or on behalf of Customers for the purposes set forth in this Agreement. Customer grants Cytek a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Customer Content as necessary for purposes of providing and improving the Services; (b) to use the Customer trademarks, service marks, and logos as required to provide the Services; and (c) in perpetuity, use the Customer Content in an aggregated and anonymized form to: (i) improve the Services and Cytek’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Services; and (iv) grant sublicenses for any of the foregoing. The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Cytek in this Agreement are reserved by Customer. 
   2.                Customer Warranty. Customer agrees that no Customer Content shall contain Protected Health Information as defined by 45 C.F.R. § 160.103, unless specifically approved by Cytek and Customer in a signed document that constitutes a written addendum to this Agreement. Customer shall notify Cytek immediately in the event Customer or any Authorized User discovers or reasonably suspects that any Customer Content includes Protected Health Information and provide reasonable cooperation and support to Cytek in connection with the identification and destruction of any such Protected Health Information.  Customer represents and warrants that any Customer Content will not (a) include any Protected Health Information or any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual, including any personal data with respect to human clinical subjects; (b) infringe any copyright, trademark, or patent; (c) misappropriate any trade secret; (d) be deceptive, defamatory, obscene, pornographic or unlawful; (e) contain any viruses, worms or other malicious computer programming codes intended to damage Cytek’s system or data; and (f) otherwise violate the rights of a third party. Cytek is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer will have the ability to export Customer Content out of the Cytek Platform and is encouraged to make its own back-ups of the Customer Content. Customer agrees that any use of the Cytek Platform contrary to or in violation of the representations and warranties of Customer in this Section 5.2 (Customer Warranty) constitutes unauthorized and improper use of the Cytek Platform.
   3.                Protective Measures. Except as otherwise provided in these Terms, all Usage Data and Customer Content will be governed by to Cytek’s Privacy Policy, which can be found at https://cytekbio.com/pages/privacy-policy. Cytek employs commercially reasonable security measures that are designed to protect Usage Data and Customer Content in its possession or control against unlawful or unauthorized access or disclosure; provided that Customer is solely responsible for maintaining the security and operability of its systems and devices used to access the Services and ensuring timely transmission of, and the accuracy, quality, integrity, and reliability of, all Customer Content.
   4.                Data Sharing and Transfers. Certain features of the Services may enable Customer to share or transfer certain results, analysis, data, information, or materials (which may include Customer Content) (“Shared Data”) with other users of the Services. By sharing or transferring the Shared Data, Customer further (a) represents, warrants, and covenants that Customer has all necessary rights, consents, and approvals to do so; (b) agrees that the recipient has the right to receive and use the Shared Data, and (c) acknowledges and agrees that Customer may lose control of or access to the Shared Data or any reports once it has been shared or transferred.
   5.                Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Cytek Platform. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. 
   6.                Subscription Responsibility. Customer is solely responsible for selecting and purchasing the appropriate Cytek Cloud Pro subscription based on its intended use, scope, and needs. If Cytek determines, in its sole discretion, that Customer has purchased a subscription that is incorrect or misaligned with its intended use, Cytek may immediately terminate the affected subscription upon written notice to Customer. No refund or credit shall be due for any terminated subscription under this Section 5.6.
6.                    THIRD-PARTY SERVICES. The Services may contain links to third-party websites, applications and advertisements for third parties (collectively, the “Third-Party Services”). When Customer clicks on a link to a Third-Party Service, Cytek will not warn Customer that it has left the Services and has become subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of Cytek. Cytek is not responsible for any Third-Party Services. Cytek provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. Customer uses all links in Third-Party Services at its own risk. When Customer leaves the Services, this Agreement and Cytek’s policies no longer govern. Customer should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation Customer feels necessary or appropriate before proceeding with any transaction with any third party. 
7.                    Warranties and Disclaimers.
   1.                Limited Warranty. Cytek represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. 
   2.                Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 (LIMITED WARRANTY) IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7 (wARRANTIES AND DISCLAIMERS), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND CONTENT AVAILABLE THROUGH THE CYTEK PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, CYTEK MAKES NO WARRANTY THAT THE CYTEK PLATFORM, CONTENT OR THE SERVICES WILL BE ACCURATE, UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, THAT THE CYTEK PLATFORM OR THE SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE CYTEK PLATFORM, INCLUDING THE SERVICES, WILL BE AVAILABLE, OR THAT DATA ARE SECURE FROM UNAUTHORIZED ACCESS. CYTEK MAKES NO WARRANTY REGARDING ANY CONTENT, SOFTWARE, GOODS, SERVICES, PROMOTIONS, OR THE DELIVERY OF ANY GOODS OR SERVICES PURCHASED, ACCESSED OR OBTAINED THROUGH THE CYTEK PLATFORM OR ADVERTISED THROUGH THE CYTEK PLATFORM. NO ADVICE OR INFORMATION GIVEN BY CYTEK, ITS EMPLOYEES OR AFFILIATES SHALL CREATE A WARRANTY. IN ADDITION, CYTEK DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE CYTEK PLATFORM IS ACCURATE, COMPLETE OR CURRENT OR WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. 
   3.                No Recommendations or Guarantees. Cytek does not warrant that use of the Services will obtain any particular results. Any results or conclusions Customer yields from use of the Services are merely for Customer’s information only. Customer agrees and acknowledges that (a) such recommendations should not be treated as a substitute for the Customer’s own counsel or examination, (b) Cytek does not make any promises or guarantees that recommendations are accurate and complete and will meet the Customer’s present or future needs or will produce positive or specific results, and (c) Customer remains solely responsible for validating and deciding on any such recommendations. For the avoidance of doubt, nothing should be construed as a recommendation or advice about any products or goods or a guarantee about the performance of any products or combination of products.
   4.                Regulatory Statement. Customer acknowledges that the Services do not have United States Food and Drug Administration (“FDA”) or equivalent non-U.S. regulatory agency approval (“Approval”). Unless otherwise expressly stated by Cytek in writing, Cytek makes no representations or warranties (a) as to any diagnostic or other clinical use of the Services; (b) that any Services have any Approval for use in any diagnostic or other clinical procedure, or for any other use requiring compliance with any law, regulation or governmental policy concerning medical devices, laboratory tests or the like; (iii) that any Services will satisfy the requirements of the FDA or any other regulatory agency; or (iv) that any Services or their performance is suitable or has been validated for clinical or diagnostic use, for safety and effectiveness, for any specific use or application by the Customer. Customer agrees that if it elects to use Services for a purpose that would subject Customer, its customers or any Services to the application of Regulatory Laws or any other law, regulation or governmental policy, Customer shall be solely responsible for obtaining any required Approvals and otherwise ensuring that the importation of the Services into Customer’s jurisdiction and Customer’s use of Services complies with all such laws, regulations and policies. The burden of proof for safe use and handling of Services sold to Customer is entirely the responsibility of Customer.
8.                    Limitation of Liability
   1.                Types of Damages. IN NO EVENT WILL CYTEK BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF CYTEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  
   2.                Amount of Damages. THE MAXIMUM LIABILITY OF CYTEK ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY customer TO CYTEK UNDER THIS AGREEMENT FOR SERVICES IN CONNECTION WITH THE CYTEK PLATFORM DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL Cytek’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. 
   3.                Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. 
9.                    Confidentiality.
   1.                Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. For the avoidance of doubt (a) the Services, Documentation, all enhancements and improvements thereto, and pricing of such Services are the Confidential Information of Cytek and (b) all Customer Content is the Confidential Information of Customer.
   2.                Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees or other representatives who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Cytek). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence; provided, however, that the Receiving Party shall not be required to destroy any computer files stored securely by the Receiving Party that are created pursuant to such Receiving Party’s standard and automatic backup or archival procedures or as they are otherwise required to retain by law. Notwithstanding the foregoing, if an Authorized User terminates their individual account or otherwise ceases to be affiliated with the Customer, but the Agreement between Cytek and Customer remains in effect, Cytek shall, upon written request by Customer, take reasonable steps to deactivate the Authorized User’s account. Unless otherwise directed in writing by Customer, any data or Confidential Information associated with the Authorized User’s account shall be retained and made accessible to Customer in accordance with Cytek’s standard data retention practices. Such data shall not be returned or destroyed unless and until (a) Customer explicitly instructs Cytek to do so, (b) the Agreement between Cytek and Customer expires or is terminated, or (c) Cytek, at its sole discretion and in line with its standard data retention practices, chooses to return or delete the data. Any return or destruction of Confidential Information shall be conducted in accordance with the terms of this Agreement and applicable law.
   3.                Exceptions. The confidentiality obligations set forth in Section 9.2 (Protection of Confidential Information) will not apply to any information that (a) is generally available to the public at the time of disclosure or becomes generally available to the public after disclosure through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
10.                INDEMNIFICATION. Customer will defend, indemnify and hold Cytek harmless from and against any liabilities, costs, damages, or losses resulting from any suit brought against Cytek based on any  allegation arising out of or relating to (a) any use of the Cytek Platform by Customer or its Authorized User not in accordance with this Agreement, (b) any use of the Cytek Platform by Customer or its Authorized User in combination with other products, equipment, software or data not supplied by Cytek, (c) any modification of the Cytek Platform by any person other than Cytek or its authorized representatives, or (d) Customer’s breach or alleged breach of Section 5.2 (Customer Warranty). Cytek shall give written notice to Customer of any threatened or actual claim or suit subject to indemnification promptly after learning of such claim, and Customer shall assume the defense of such claim with competent counsel. Customer shall not settle any such claim without the prior written consent of Cytek, not to be unreasonably withheld. Cytek will cooperate with Customer to facilitate the settlement or defense of any claim or suit. Customer will be responsible for any costs incurred by Cytek in furtherance of this provision.
11.                Term And Termination.
    1.            Term. This Agreement will begin on the Effective Date and continue in full force and effect as long as any Purchase Order remains in effect or Customer or its Authorized User(s) use the Service(s), unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Purchase Order, the term of a Purchase Order will begin on the effective date of the Purchase Order and continue in full force and effect for one (1) year at Cytek’s then-current pricing for the Services, unless earlier terminated in accordance with the Agreement. Thereafter, the Purchase Order will automatically renew for additional terms of one (1) year at Cytek’s then-current pricing for the Services unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current term.
    2.            Termination by Cytek. Cytek reserves the right to terminate this Agreement and/or an applicable Purchase Order if Cytek terminates, in its sole discretion, the Cytek Platform service offering. In the event of termination in accordance with this Section 11.2, Customer will receive a pro rata refund of any unused prepaid Fees.
    3.            Termination for Breach. Either party may terminate this Agreement and/or an applicable Purchase Order upon notice to the other party if the other party materially breaches this Agreement and/or an applicable Purchase Order, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. 
    4.            TERMINATION OR SUSPENSION.  WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICES (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON IF WE BELIEVE THAT SUCH PERSON IS IN BREACH OF THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION, INCLUDING, WITHOUT LIMITATION, BREACHES OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE.  WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SERVICES OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION IF WE CONSIDER THAT YOU HAVE BREACHED, OR ARE LIKELY TO BREACH, ANY OF THE ABOVE.
    5.            Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted by Cytek to Customer or its Authorized Users hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return or destroy all Confidential Information of the other party, as set forth inSection 9(Confidentiality); and (c) any amounts owed to Cytek under this Agreement will become immediately due and payable. Sections 1 (Definitions), 3.2 (Restrictions), 3.4 (Ownership), 3.6 (Open Source Software), 4 (Fees and Expenses; Payments), 7.2 (Disclaimer), 8 (Limitation of Liability), 9 (Confidentiality), 10 (Indemnification), 11.3 (Termination for Breach), 11.4 (Termination or Suspension), 11.5 (Effect of Termination), and 12 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
12.                Miscellaneous.
    1.            Governing Law. This Agreement and any dispute arising from or relating thereto will be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–2, shall govern the interpretation and enforcement of the arbitration provisions herein.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply. 
    2.            Dispute Resolution and Binding Arbitration. To the maximum extent permitted by applicable law, any dispute, claim, or controversy arising out of or relating to these Terms or the Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, shall be resolved by final and binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules then in effect. The arbitration shall be conducted by a single neutral arbitrator, unless Cytek elects otherwise, and shall take place in Alameda County, California, in English. The arbitrator shall apply the substantive laws of the State of California and shall issue a reasoned written award. The arbitration shall be conducted in a manner that ensures each party has a fair opportunity to present its case, including reasonable discovery consistent with AAA procedures and California law. The prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including in any judicial proceeding to confirm or enforce the award. The existence of the arbitration, all materials submitted or created for use in the arbitration, and the final award shall be treated as confidential information, except as required by law or necessary to enforce or challenge the award.

Nothing in these Terms or the Agreement shall prevent Cytek from seeking interim or injunctive relief from a court of competent jurisdiction, including to protect its intellectual property, confidential information, or other proprietary rights. Such relief shall not be deemed incompatible with the agreement to arbitrate.

 

3.            Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Cytek, or any products utilizing such data, in violation of the United States export laws or regulations.
4.            Severability. If any provision of this Agreement, including the arbitration clause, is, for any reason, held to be invalid or unenforceable by a court or arbitrator, that provision shall be enforced to the maximum extent permissible, and the remainder of these Terms and this Agreement shall remain in full force and effect. 
5.            Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
6.            No Assignment. Customer may not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Cytek, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Notwithstanding the foregoing, Cytek may, without Customer’s consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns. 
7.            Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services, Results, and Documentation.
8.            Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
9.            Independent Contractors. Customer’s relationship to Cytek is that of an independent contractor, and neither party is a representative or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Cytek.
10.         Notices. All notices required or permitted under this Agreement must be delivered in writing, if to Cytek, by e-mailing cloudsupport@cytekbio.com, with a copy to legal@cytekbio.com, and if to Customer by e-mailing the Customer point of contact e-mail address listed on the applicable Purchase Order, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the applicable Purchase Order by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its e-mail address and/or address for receipt of notice by giving notice of such change to the other party.
11.         Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. Only a written amendment signed by both parties can modify a Purchase Order. Customer acknowledges and agrees that Cytek will retain the right to amend or modify the Terms and/or the Services at any time, without notice. Such changes to the Services may be temporary or permanent. Customer’s continued use of the Services constitutes acceptance of any amendments, updates, revisions additions, or modifications to the Terms and/or the Services, with or without notice.

 

Last Updated: September 30, 2025