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Cloud Terms of Use

 

CYTEK BIOSCIENCES, INC. PANEL BUILDER SERVICES TERMS OF USE

Welcome to the Cytek Cloud Panel Builder software (“Service(s)”) operated by Cytek Biosciences, Inc. (“Cytek”) at < https://cloud.cytekbio.com > (“Site”). Cytek is providing the Services to you or the legal entity on whose behalf you are accepting this Agreement (“Customer”) subject to the following terms and conditions (“Terms”), which are effective on the earlier of (i) the date Customer accepts the Terms; or (ii) Customer’s first use of the Service(s) (“Effective Date”). By registering for an account for use of the Services and clicking on the “I AGREE” button (or other button indicating acceptance) on an account registration form, registering for an account, or otherwise accessing or using the services, Customer acknowledges that Customer has read, accepts and agrees to be bound by the Terms when using the Site and/or the Services.

Customer further acknowledges and agrees that Cytek will retain the right to amend or modify the Terms and/or the Services at any time, including changing Service offerings and prices, without notice, and the right to terminate or discontinue the Services or any part of any of the Services, at any time. Such changes to the Services may be temporary or permanent. Customer may review these Terms periodically to be aware of any such changes. 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. Cytek will have no liability for any change to the Services or any suspension or termination of Customer’s access to or use of the Service.

A. ACCOUNTS AND REGISTERED USERS

  1. Customer Eligibility. Customer must be of legal age to form a binding contract and must register to use the Services. By agreeing to these Terms, Customer represents and warrants that: (a) Customer is at least 18 years old; (b) Customer has not previously been suspended or removed from the Services; (c) Customer’s registration and use of the Services is in compliance with any and all applicable laws and regulations; (d) 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; and (e) Customer agrees to be bound by these Terms. If Customer is an entity, organization, or company, the individual registering the account agrees to accept these Terms on Customer’s behalf, and represents and warrants that he/she has authority to bind, and hereby binds, Customer to these Terms.

  2. Account Registration and Password. To access the Services, Customer will be required to register for a Service account (“Account”) on the Site and provide Cytek with general information, such as Customer’s email address or other contact information. Customer agrees that the information provided to register the Account is accurate and that Customer will keep it accurate and up-to-date at all times. At Account registration, Customer also will be required to create a password for the Account to access the Services. Customer is solely responsible for maintaining the confidentiality of the Account and the Account password, and Customer accepts responsibility for all conducted activities that occur within the Account. If Customer believes that Customer’s Account is no longer secure, Customer must immediately notify Cytek at cloudsupport@cytekbio.com. Any Customer information collected in connection with the Account registration process is subject to Cytek’s Privacy Policy, which can be found at https://cytekbio.com/pages/privacy-policy.

  3. Prohibited Access. Customer agrees not to: (a) provide access to any information relating to the Account, including usernames, passwords, or Account information to any third party; (b) violate, or encourage others to violate, any right of a third party (including by act or omission) in connection with the use of the Services; (c) interfere with the operation of the Services or any user’s enjoyment of the Services; or (d) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other account without permission.

B. USE OF SERVICES
    1. License for Use of Panel Builder Services. Subject to Customer’s ongoing compliance with the Terms, Cytek grants Customer a personal, limited, revocable, non-exclusive, non-transferable and non-sublicensable license to use the Services (“License”). Cytek expressly retains all ownership rights, title and interest in and to all aspects of any software, the Services, and the Site, including, but not limited to, all current and future patents, copyrights, trademarks, trade secrets, know-how, and other proprietary rights included or embodied in the Services.

    2. Third Party Content, Products and Linking. The Services may link to other third party sites, content, and/or products that may be available to you through the Services. Such links do not imply any relationship, sponsorship, or affiliation between Cytek and such third party sites, or adoption or approval of the content of such third party sites. The use of such third-party content or products is subject to the respective terms and conditions imposed by the third party owning, manufacturing or distributing such content or products. Cytek is not responsible for the contents or Customer’s use of any third party sites or for terms of use or privacy practices of third party sites. Cytek makes no representations or warranties regarding the content, product or website of any third party and exercises no control over the content or availability of any third party content, software, product or website, including any contamination or destructive code. Cytek encourages you to review the terms of use and privacy policies posted on third party sites. Customer’s access to third party sites is at Customer’s own risk.

    3. Restricted Use. No License shall be construed or interpreted to be a grant or provision of rights for Customer to reproduce, modify, distribute, perform, display, possess, control or reverse engineer the source code or any other aspect of the Services. Customer expressly agrees that he/she/they/it shall not, directly or indirectly, and shall not authorize any third party to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of, reconstruct, or discover any hidden elements, trade secrets, know-how or other proprietary information relating to the Services (except to the extent expressly permitted by applicable law); (b) translate, adapt, or modify the Services, or any portion of any of the foregoing; (c) use the Services for the purpose of developing products or services that compete with the Services; (d) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Services or any rights thereto; (e) use the Services for the benefit of, or allow access to the Services by, unauthorized persons or third parties; (f) transmit unlawful, infringing or harmful data or code to or from the Services; (g) alter or remove any notices of trademarks, trade secrets, copyright, confidentiality or other proprietary notices contained in or on the Services or Site; (h) circumvent or otherwise interfere with any authentication or security measures of the Services, or otherwise interfere with or disrupt the integrity or performance thereof; or (i) use the Services in a manner not contemplated by the Terms, or in a manner that violates any third party rights or any applicable laws, rules or regulations, including without limitation laws and regulations governing the protection of personally identifiable information or personal health information; or (j) otherwise use the Services or any Cytek Confidential Information or IP (each as defined below) except as expressly permitted under these Terms.

    4. Monitoring. Cytek reserves the right to monitor Customer’s use of the Services, but is under no obligation to do so. Customer agrees that Cytek may access, preserve, and disclose Account information where required to do so by law or under a good faith belief that such access, preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any use of the Services violates the rights of third parties; (d) respond to Customer service requests; or (e) protect the rights, property, or personal safety of Cytek, its users and the public.

    5. Warranty Disclaimer. THE SERVICES AND CONTENT AVAILABLE THROUGH THE SITE 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 SITE, CONTENT OR THE SERVICES WILL BE ACCURATE, UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, THAT THE SITE OR THE SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE SITE, 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 SITE OR ADVERTISED THROUGH THE SITE. 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 SITE IS ACCURATE, COMPLETE OR CURRENT OR WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS.

     

     

     

    C. DATA & PRIVACY
      1. Privacy Policy, Usage Data and Customer Data. Any data or information relating to Customer’s usage of the Services, such as statistical data, analytics, trends and usage information derived from each Customer’s use of the Services will be referred to as “Usage Data”. All data, information or materials submitted by the Customer in connection with use of the Services will be referred to as “Customer Data.” Except as otherwise provided in these Terms, all Usage Data and Customer Data will be governed by to Cytek’s Privacy Policy, which can be found at https://cytekbio.com/pages/privacy-policy.

      2. Protective Measures. Cytek employs commercially reasonable security measures that are designed to protect Usage Data and Customer Data 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 Data.

      3. Customer Representations and Warranties. Customer represents, warrants, and covenants that (a) Customer Data shall not 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 consumer or household, including any personal data with respect to human clinical subjects; (b) Customer has the full right and authority to provide Customer Data to Cytek and for Cytek to use the Customer Data in accordance with the Terms and Cytek’s Privacy Policy; (d) Cytek’s use of Customer Data does not and will not breach any applicable laws, statutes or regulations or infringe upon or misappropriate the intellectual or other proprietary rights of any third party.

      4. Additional Customer Representations and Warranties Relating to 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 Data and Results (as defined below) (“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 use the Shared Data subject to these Terms, and (c) acknowledges and agrees that Customer may lose access to the Shared Data once it has been shared or transferred.

      5. Usage Data. Cytek may collect, use, reproduce, make derivative works of, and distribute the Usage Data and any related information or metadata for any business purpose including, but not limited to, for purposes of (i) monitoring, improving, and correcting the performance of the Services, developing enhancements to the Services, developing new products, and other internal business purposes; (ii) compiling statistical information (including without limitation aggregating Usage Data with other data); (iii) aggregating Usage Data with other data; (iv) creating de-identified versions of Usage Data; and (v) in perpetuity using, reproducing, preparing derivative works of, and distributing such aggregated or de-identified data for any lawful purpose and to grant sublicenses for the foregoing.

       

      D. INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS
        1. Protection of Site and Services. The Site and Services may be protected by intellectual property and/or other proprietary rights of Cytek, its affiliated entities or third parties. Such rights may include, but are not limited to, patents, trademarks, trade names, inventions, copyrights, design rights, trade secrets, and rights in and to databases, know how, and any other intellectual property relating to the Site and Services. All intellectual property and other proprietary rights are reserved unless granted in an express written license.

        2. Ownership of Services, Customer Data and Results. Customer acknowledges and agrees that the Services provided hereunder are based upon an iterative process utilizing Cytek’s proprietary technology, know-how and methodologies, (b) Cytek may develop additional proprietary technology, know-how and methodologies in connection with the Services rendered hereunder, and (c) Cytek shall exclusively own and shall have the right to use and exploit as desired any current and future know-how and methodologies relating to the Services, including but not limited to, ideas, concepts, processes, discoveries, developments, formulae, information, materials, improvements, designs, artwork, content, software programs, other copyrightable works, and any other work product created, conceived or developed by Cytek (whether alone or jointly with others) for Customer during or before the term of this Terms, including all copyrights, patents, trademarks, trade secrets, and other intellectual property rights therein (“Cytek Materials”). Customer will retain ownership of all Customer Data and results derived from use of the Services based on Customer Data (“Results”); provided, however, Customer hereby grants to Cytek a non-exclusive, perpetual, royalty-free, fully paid-up, worldwide license, with the right to grant sublicenses, to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Cytek and its affiliates 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 Data incorporated therein for any purpose, including without limitation, Cytek’s research, product development and commercial purposes.

        3. 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 shall and hereby does make all assignments necessary to achieve such ownership.

         

        E. CONFIDENTIALITY
          1. Confidential Information. Cytek may disclose information, directly or indirectly, to Customer in connection with use of the Services or the Terms. Any and all information disclosed by Cytek to the Customer in connection with the Services shall be considered confidential (“Confidential Information”). The Customer agrees that he/she/it will hold in strict confidence and agrees not to: (a) use Confidential Information except in accordance with the Terms; and (b) transfer, copy, disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party without Cytek’s prior written consent. Customer shall safeguard the Confidential Information using the same measures it uses to protect its own confidential information, but in no event shall Customer use less than reasonable care in safeguarding the Confidential Information. All Confidential Information remains the sole property of Cytek and the Customer has no implied licenses or other rights in the Confidential Information.

          2. Exceptions. Notwithstanding the foregoing, information shall not be considered Confidential Information if Customer can demonstrate that the information: (i) is generally available in the public domain prior to Cytek’s disclosure or becomes generally available in the public domain after the Cytek’s disclosure, through action or inaction of Customer, or (ii) rightfully obtained from third parties not under confidentiality restrictions. Further, Customer may disclose the Confidential Information to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that if legally permissible, Customer provides Cytek with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist Cytek in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued.

           

          F. LIMITATION OF LIABILITY AND ADDITIONAL DISCLAIMERS
            1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CYTEK NOR ANY OF ITS AFFILIATES, SUBSIDIARIES, PARENT COMPANY, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, AND LITIGATION), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

            2. No Assumption of Liability. CUSTOMER WILL USE THE SERVICES AND ACCESS THE SITE AT HIS/HER/ITS OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CYTEK AND ITS AFFILIATED ENTITIES SHALL ASSUME NO RESPONSIBILITY AND SHALL HAVE NO LIABILITY, ON ANY BASIS, FOR ANY ERRORS OR OMISSIONS ON THE SITE, EXCEPT WHERE, UNDER MANDATORY APPLICABLE LAWS, LIABILITY CANNOT BE DISCLAIMED. CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS AGAINST CYTEK AND ITS AFFILIATES, SUBSIDIARIES, PARENT COMPANY, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES ARISING OUT OF THE CUSTOMER’S USE OF THE SERVICE, THE SITE AND THE CONTENT, INFORMATION, FACTS, AND OPINIONS AVAILABLE THEREON. CUSTOMER HEREBY AGREES TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM THESE POSSIBLE HARMS.

            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. 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.

             

            H. SUSPENSION AND TERMINATION
              1. Term. These Terms commence on the Effective Date and continue until terminated.

              2. Suspension and Termination by Cytek. Cytek reserves the right to suspend or terminate Customer’s Account and use of the Site or Service, at any time, without notice, for any reason, including but not limited to the following: (a) Customer’s breach of these Terms, including policies or guidelines that may be set forth by Cytek elsewhere; (b) Customer’s conduct or activities that Cytek believes may be harmful to other users of the Services or Cytek’s business; (c) any use of the Services or Site by Customer that Cytek believes may be illegal or unlawful; and (d) Cytek, in its sole discretion, decided to terminate the Services.

              3. Termination by Customer. Customer may terminate the Services and Terms at any time by contacting customer service at cloudsupport@cytekbio.com.

              4. Effect of Termination. Upon termination of the Services: (a) subject to Section D, any and all License rights granted to Customer will terminate and Customer must immediately cease all use of the Services; (b) Customer will no longer be authorized to access or use Customer’s Account or the Services; and (c) Sections C1, C5, D, E, F, G4, H, I, as well as any other sections herein which by their nature should survive, will survive termination of these Terms.

               H. INDEMNIFICATION

              Indemnification by Customer. To the fullest extent permitted by law, Customer will indemnify, defend and hold harmless Cytek and any of its affiliates, and all of its and their principals, officers, directors, employees, representatives and agents from and against all losses, expenses, damages, and costs, including reasonable attorney fees (“Liabilities”), resulting from (i) any violation of these Terms by Customer; (ii) any dispute or issue relating to the sharing or transfer of Customer Data or the receipt of Customer Data; (iii) Customer’s violation of any applicable laws; or (iv) Customer’s gross negligence, willful misconduct and bad faith.

               

              I. MISCELLANEOUS
                1. No Resale of Services. Customer agrees not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.

                2. Governing Law and Jurisdiction. These Terms and any action related thereto will be governed, controlled, interpreted, and defined by and under 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 state. Customer agrees to submit any disputes arising from these Terms or use of the Site or Services to binding, individual arbitration in Alameda County, California, and waives any right to a trial by jury or to participate in any class action or representative proceeding in court. Any disputes under these Terms may be brought in the state courts in the State of California, County of Alameda, or in the United States District Court for the Northern District of California, and the parties hereby consent to the personal jurisdiction and exclusive venue of these courts.

                3. Assignment. The Customer may not assign or otherwise transfer, by operation of law or otherwise, any of its rights under this Terms without Cytek’s prior written consent, and any attempted assignment without such consent will be null and of no effect. Subject to the foregoing, these Terms will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

                4. Amendment of Terms. Cytek reserve the right to amend these Terms agreed to by Customer from time to time without notice. Customer's continued use of the Site constitutes acceptance of any amendments, additions, or modifications to these Terms.

                5. Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between Cytek and Customer by virtue of the Terms or Customer’s use of the Site or Services.

                6. Severability. If any section, paragraph, provision or clause or any portion thereof in these Terms shall be found or be held to be invalid or unenforceable in any jurisdiction in which these Terms is being performed, the remainder of these Terms shall be valid and enforceable and the parties shall negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into these Terms.