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LifeFormulae, LLC
9119 Highway 6 South #228
Missouri City, TX 77459
(713) 472-6700  
LifeFormulae Online Services Agreement
 
IMPORTANT – READ CAREFULLY:  This LifeFormulae Online Services Agreement (“Agreement”) is a legal contract between you (“Customer”) and LifeFormulae, LLC (“LifeFomulae”) regarding the matters contained herein .
 
BY CLICKING THE “YES I ACCEPT ALL THE TERMS OF THIS AGREEMENT” ICON BELOW, YOU AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT AND ALL APPLICABLE TERMS OF THOSE CERTAIN DOCUMENTS REFERENCED IN THIS AGREEMENT THAT ARE AVAILABLE ON THE LIFEFORMULAE WEBSITE AS SUCH DOCUMENTS ARE CHANGED BY LIFEFORMULAE FROM TIME TO TIME.  IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT YOU WILL NOT BE PERMITTED TO PROCEED WITH USE OF THE SERVICES.
 
SERVICES PROVIDED BY LIFEFORMULAE
Services. LifeFormulae hereby grants to Customer, subject to the provisions of this Agreement, a non-exclusive, non-transferable, limited license to remotely access and use LifeFormulae’s Internet-based software system to access and use the  Lifeformulae Asn.1 software to mine data and generate reports from the data contained in the National Institutes of Health’s National Center for Biotechnology Information (NCBI) ASN.1 binary genomics files (the “Services”).  This right to access and use the Services extends to those individuals who are properly designated as authorized users by Customer on the ______________ form (each an “Authorized User”). All rights not expressly granted to Customer under this Agreement are reserved by LifeFormulae. Services Proprietary to LifeFormulae.  The Customer agrees that (i) the Services are proprietary to LifeFormulae or its licensors and that neither Customer nor its Authorized Users shall have any right, title or interest in the Services except to remotely access and use the Services in accordance herewith; (ii) all applicable common law and statutory rights in and to the Services including, without limitation, all rights and copyrights, shall be and will remain the property of LifeFormulae; (iii) all Services contain proprietary information, including trade secrets, know-how and confidential information that is and shall remain the exclusive property of LifeFormulae; and (iv) neither Customer nor its Authorized Users shall in any way download, copy, duplicate, reproduce, modify, de-compile or otherwise reverse engineer any software or database associated with the Services, any portion thereof, or any function provided thereby.  The Services include only the right to access and use the Services as contemplated by this Agreement. Modifications. LifeFormulae reserves the right to change any and/or all Services without the consent of the Customer provided the functions provided herein continue to be provided.
 
SYSTEM ACCESS
Access to Services. LifeFormulae will assign a unique identification code (“ID”) and a unique password (“Password”) for Customer’s Authorized Users. LifeFormulae may by advance notice to Customer designate other methods (such as newly developed technology) to ensure that access to the Services is solely by persons authorized to have such access.  Customer agrees to comply and to have its Authorized Users comply with LifeFormulae’s access procedures, as they may be modified from time to time. Use by Authorized Users. Customer shall designate those of its Authorized Users that shall be authorized to access the Services using the ______________ Form.  Customer may amend the number of and/or identities of its Authorized Users using the ___________ Form. Only duly appointed Authorized Users of Customer shall be allowed to access the Services on behalf of Customer.  Each Authorized User may have access only to data and reports generated by that Authorized User, or to which that Authorized User has otherwise been given proper access by Customer.  Customer shall be solely liable to LifeFormulae for any fees, costs, damages, or obligations under this Agreement for the actions or inactions of such Authorized Users.  Customer shall be solely responsible for maintaining the accuracy of the information regarding each Authorized User designated to access the Services. Enrollment Process. Prior to gaining full access to the functionality of the Services, each Authorized User notified to LifeFormulae on the forms specified in Section 2.2 will be required to login to a website to be provided by LifeFormulae to the Authorized User and complete an enrollment process.  The enrollment process will require each Authorized User to submit an application for a digital certificate.  The digital certificates will be administered by LifeFormulae in accordance with its operating protocols, which may be changed at LifeFormulae’s discretion. As part of the enrollment process each Authorized User will be required to accept LifeFormulae’s Terms of Use. Confidentiality of ID and Passwords. Customer agrees to take such actions as are necessary to maintain the confidentiality of, and to prevent the unauthorized use of, each ID and Password. Customer also agrees to notify LifeFormulae immediately if Customer determines that an unauthorized party has gained access to an ID or a Password. Customer is responsible for removing access privileges for any person previously authorized who is no longer authorized to access the Services.  Further, except to the extent caused by LifeFormulae, Customer shall be liable for any and all damages, losses, liabilities, costs and expenses resulting from the misuse of or unauthorized access to the Services through the use of an ID or Password assigned to Customer or its Authorized Users. Additional Customer Responsibilities.  In addition, Customer will be solely responsible for ensuring that: (a)  Authorized Users do not engage in any Prohibited Conduct. “Prohibited Conduct” means, with respect to Customer and any Authorized User, directly or indirectly, without limitation: (i) using the Services in a manner that is inconsistent with this Agreement or the reasonable instructions of LifeFormulae; (ii) accessing, tampering with or using areas of LifeFormulae’s website or computer systems beyond the scope of the Authorized User's authorization, including without limitation breaching the security or authentication measures of the LifeFormulae website, the Services, or LifeFormulae’s computer systems; (iii) violating the intellectual property or other proprietary rights of LifeFormulae with respect to the Services, any software associated therewith, or the LifeFormulae website content; (iv) transmitting to, or using with respect to, the Services any viruses or other harmful or malicious code or computer programming routines (“Unauthorized Code”); (v) disclosing an ID or Password to any party not authorized to have it or using a ID or Password for any unauthorized purpose; (vi) attempting to do any of the foregoing. (b)  Each computer network or personal computer through which an Authorized User will access the Services is physically and electronically secure and has not been configured to allow ID’s or Passwords to be "remembered" and automatically entered when accessing the Services. (c)  Customer has taken, and shall continue to take, commercially reasonable precautions designed to assure that access and use of the Services by Customer’s Authorized Users does not result in the transmission to any person of any Unauthorized Code.  In no event shall LifeFormulae be held liable for the transmission to any person of any Unauthorized Code if such transmission results from Prohibited Conduct by Customer or its  Authorized Users.  (d) Customer shall provide each Authorized User a copy of this Agreement. (e)  Any deficiencies or defects in the Services and any errors in the operation of the LifeFormulae website that Customer observes or of which it becomes aware are promptly reported to LifeFormulae. LifeFormulae’s Reservations. (a)  LifeFormulae reserves the right to revoke or modify access rights or an ID or Password at any time.  LifeFormulae will provide prompt notice to Customer whenever it exercises its right to revoke or modify access rights or an ID or Password. (b)  LifeFormulae further reserves the right to communicate to Customer from time to time revised and additional procedures relating to access control administration.  Such revised and additional procedures shall be binding on the parties as if incorporated in this Agreement and shall take effect as of the date specified in the communication to the Access Administrator, unless no date is specified, in which case they shall be effective immediately. (c)  LifeFormulae has no obligation to respond to Change Of Access Forms submitted by anyone other than the duly appointed Access Administrator. (d) All requests for changes to Authorized Users must be made directly by Customer’s Access Administrator by e-mail to LifeFormulae at ___________________, or by telephone, or electronic transmission at such other e-mail address or telephone or fax number as LifeFormulae may, from time to time, designate.  [NOTE: please confirm] Security. Customer understands and acknowledges that information transmitted to and from the LifeFormulae website is encrypted, that ID’s and Passwords are maintained in an encrypted folder, but that no other encryption services are provided in connection with this Agreement. [NOTE: please confirm] Monitoring; Rejections. LifeFormulae reserves the right, but not the obligation, to monitor any or all activities, data, or other information transmitted or received through the Service.  LifeFormulae further reserves the right to reject, suspend, censor or prohibit any transmission through the Service that LifeFormulae, in its sole and absolute discretion, determines in good faith may be (i) prohibited by law, (ii) inappropriate, or (iii) in violation of this Agreement.
 
Term of Agreement.  This Agreement shall become effective upon Cutomer’s acceptance of the terms of this Agreement, as reflected by Customer’s clicking the “Yes, I accept all the terms of this Agreement” icon at the bottom of this Agreement and shall continue on a month-to-month basis thereafter until terminated as provided in this Section 3. Termination. LifeFormulae may terminate this Agreement immediately if Customer or its Authorized Users fails to comply with any provision of this Agreement.  Either party may terminate this Agreement at the end of the then-current monthly term by written notice to the other party. In addition, either party may terminate this Agreement immediately upon notice if the other party (i) ceases to function as a going concern or to conduct operations in the normal course of business; (ii) has a petition or action filed by or against it under any federal bankruptcy or state insolvency law which petition or action has not been dismissed or set aside within sixty (60) days of its filing; or (iii) makes an assignment for the benefit of its creditors. Duties Upon Termination. Immediately upon termination, expiration, or cancellation of this Agreement, Customer shall stop, and shall cause its Authorized Users to stop, accessing the Services. Suspension. Notwithstanding anything to the contrary in this Agreement, if Customer otherwise causes a breach of this Agreement that LifeFormulae in its sole and absolute discretion determines threatens the security of its systems, software, or data; to damage LifeFormulae’s reputation; or is likely to violate any law, regulation, or court order, regardless of whether such breach is ultimately determined to be a violation of such law, regulation or court order, LifeFormulae may, in its sole and absolute discretion, withhold delivery of the Services and/or suspend access to any or all data by Customer and/or its Authorized Users until such breach is cured.
 
FEES AND PAYMENT TERMS
General.  In consideration for the Services provided by LifeFormulae hereunder, Customer agrees to pay the fees specified in the ___________ form when due and in the manner set forth therein. 
 
CONFIDENTIALITY
Confidentiality. Except as otherwise provided herein, Customer and LifeFormulae agree that any and all information that is not otherwise publicly available (“Confidential Information”), other than as a result of unauthorized disclosure, communicated by one party (“Disclosing Party”) to the other (“Receiving Party”), shall be treated as and held in confidence by Receiving Party, shall be used only for purposes of this Agreement by Receiving Party, and that no Confidential Information, including without limitation the provisions of this Agreement, shall be disclosed by the Receiving Party, its Authorized Users, directors, officers, affiliates, lenders, representatives, agents or employees, without the prior written consent of the Disclosing Party, except as may be necessary by reason of legal, accounting or regulatory requirements beyond the reasonable control of the Receiving Party. The Receiving Party shall safeguard Confidential Information with at least the same degree of care that it uses to safeguard its own confidential, proprietary, and trade secret information.  This paragraph shall not apply to information which (i) is in the public domain, (ii) the Receiving Party had in its possession prior to receiving it from the Disclosing Party, (iii) the Receiving Party obtained from a third party who rightfully acquired such information, or (iv) the Receiving Party independently developed without reference to the information received from the Disclosing Party.  If the Receiving Party must disclose any such Confidential Information pursuant to applicable law or regulation or by operation of law, the Receiving Party may disclose only such information as, in the opinion of legal counsel, is legally required, and provided, further, that the Receiving Party shall provide reasonable notice to the Disclosing Party of such requirement and a reasonable opportunity to object to such disclosure. The terms of this provision shall survive the termination of this Agreement.  Relief. The Receiving Party acknowledges that if it breaches this Agreement, the Disclosing Party will not have an adequate remedy in money or damages. The Disclosing Party, in addition to any other available remedy at law or in equity, shall be entitled to obtain injunctive relief without posting bond or other security. Property. The parties acknowledge that trademarks, trade names, service marks, copyrights, programs, software (including but not limited to source code and scripts), specifications, systems designs, applications, routines, subroutines, techniques, enhancements, documentation, manuals, ideas or formulas developed, provided or utilized by LifeFormulae in providing the Services or developed by LifeFormulae or its providers and provided in connection with this Agreement shall remain the sole and exclusive property of LifeFormulae or its providers.
INDEMNIFICATION; LIMITATION OF LIABILITY; WARRANTY DISCLAIMER
Indemnification.  Customer agrees to release, to defend, and to indemnify and hold harmless LifeFormulae, its affiliates and subsidiaries, and its and their respective employees, officers, directors, agents and representatives (collectively, the “LifeFormulae Parties”), at Customer’s cost and expense, from and against any and all claims, demands or causes of action (collectively, “claims”) arising out of Customer’s or its Authorized Users’ use of the Services.  Customer will reimburse LifeFormulae for any and all costs, liabilities, judgments, and expenses (including attorneys’ fees and costs) reasonably incurred by LifeFormulae in connection with the investigating, preparing for, and defending against any such claim, whether or not resulting in any liability, and any amount paid in settlement of any litigation, commenced or threatened, or of any such claim if such settlement is effected with the written consent of Customer.  Limitation of Liability.  IF LIFEFORMULAE BECOMES LIABLE TO CUSTOMER UNDER THIS AGREEMENT FOR ANY REASON, WHETHER ARISING BY NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE, SUCH LIABILITY SHALL NOT EXCEED IN THE AGGREGATE FOR ALL EVENTS ONE THOUSAND US DOLLARS (US$1,000.00). No Special Damages. LIFEFORMULAE SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR ANY BREACH THEREOF EVEN IF LIFEFORMULAE HAS BEEN ADVISED OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES. Warranty Disclaimer. LIFEFORMULAE PROVIDES THE SERVICES TO CUSTOMER AND ITS AUTHORIZED USERS "AS IS," “WHEREIS,” “WITH ALL FAULTS,” AND WITHOUT WARRANTY OF ANY KIND.  CUSTOMER UNDERSTANDS THAT LIFEFORMULAE OBTAINS DATA INCLUDED IN THE SERVICES FROM THIRD PARTIES, INCLUDING GOVERNMENT AGENCIES, THAT LIFEFORMULAE MAKES NO WARRANTIES OF ANY KIND REGARDING THE ACCURACY OR COMPLETENESS OF ANY SUCH DATA, AND THAT LIFEFORMULAE IS UNDER NO OBLIGATION TO CORRECT ANY ERROR OR OMISSION THEREIN.  EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, LIFEFORMULAE MAKES NO WARRANTIES, TERMS OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, ABOUT THE SERVICES OR THE SUITABILITY, LEGALITY OR ACCURACY OF THE INFORMATION, OR SERVICES DESCRIBED OR CONTAINED ON THE LIFEFORMULAE WEBSITE.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LIFEFORMULAE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, TERMS OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT IS TERMINATION OF THIS AGREEMENT.
MISCELLANEOUS
 
Independent Contractor.  The relationship of the parties under this Agreement shall be solely that of independent contractors. In its capacity as provider of the Services under this Agreement, LifeFormulae is not an agent, partner, or joint venturer of Customer, and nothing in this Agreement will cause either party to be an agent, partner, or joint venturer of the other party. Assignment.  Neither party may assign this Agreement or any rights obtained hereunder or delegate or subcontract any duty of performance owed by it hereunder without the prior written approval of the other, which approval shall not be unreasonably withheld, except that no approval shall be required for LifeFormulae to assign this Agreement or its rights and duties hereunder to an affiliate or subsidiary, or in connection with a merger, consolidation, reorganization or the sale of substantially all of its assets.  Any assignment made by either party in contravention of this Section shall be null and void for all purposes. To the extent that there are successors or assigns permitted under this Section, this Agreement shall be binding on and inure to the benefit of the parties and their respective successors and assigns. Nothing herein shall be construed as limiting LifeFormulae’s rights to subcontract the Services. Laws and Regulations. The Customer represents and agrees that it and its Authorized Users will use the Services provided hereunder only in accordance with this Agreement and with all applicable federal, state, and local laws and regulations, and in accordance with the conditions, rules, regulations, license or contractual restrictions and specifications that may be set forth in any manuals, materials, documents, or instructions in existence on the date of this Agreement and furnished or communicated by LifeFormulae on an ongoing basis throughout the Term of this Agreement.  LifeFormulae reserves the right to take all actions, including termination or suspension of any particular Service, that it reasonably believes to be necessary to assure compliance with the foregoing.  LifeFormulae shall provide written notice if any such actions will affect the Services. Governing Law. This Agreement, and all the rights and duties of the parties arising out of, in connection with, or relating in any way to the subject matter of this Agreement or the transactions contemplated by it, shall be governed by, construed, and enforced in accordance with the laws of the State of Texas (excluding its conflict of laws rules which would refer to and apply the substantive laws of another jurisdiction).  Any suit or proceeding hereunder shall be brought EXCLUSIVELY in Harris County, Texas. Each party consents to the personal jurisdiction of the state and federal courts of said county and waives any objection that such courts are an inconvenient forum. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Attorney’s Fees.  If LifeFormulae takes action (by itself or through its representatives) to enforce any of the provisions of this Agreement, including collection of any amounts due hereunder, in addition to all sums to which it is entitled or any other relief, at law or in equity, LifeFormulae shall be entitled to recover from Customer and Customer agree to pay, reasonable attorney's fees and all costs of any litigation. Limitation Period. Customer may not assert any cause of action against LifeFormulae arising under or in connection with this Agreement of which the Customer knew or should have known more than two (2) years prior to such assertion and PROVIDED THAT THE CUSTOMER NOTIFIED LIFEFORMULAE IN WRITING WITHIN 180 DAYS OF DISCOVERING SUCH CAUSE OF ACTION. Force Majeure.  Neither party shall have any obligation to perform any specific Service hereunder if its failure to do so is caused by or results from any act of God, governmental action, natural disaster, act of terrorism, strikes, failure of essential equipment, utilities or services, or any other cause or circumstance beyond the control of the party.  During the term of the force majeure, no party will have to pay for the specific Service which is subject to the force majeure.  Notices. All notices and other communications given in connection with this Agreement shall be in writing and shall be deemed given if mailed postage prepaid, certified mail to ____________ for LifeFormulae and as provided in the online registration process for Customer.       Severability.  In the event any portion of this Agreement, or the application thereof to any person or circumstance, shall be determined to be invalid or unenforceable, that portion or application of this Agreement will be null and void, and the remainder of this Agreement will continue to be valid and enforceable to the extent permitted by applicable law.       Waiver.  The terms of this Agreement may only be waived by a written instrument executed by the party against whom such waiver is sought to be enforced.  No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof, whether or not similar. Headings.  The headings used herein are for reference purposes only. Survival.  Notwithstanding any other provisions in this Agreement, all indemnity, limitation of liability and confidentiality obligations set forth in this Agreement shall survive the termination or expiration of this Agreement, in whole or in part.  Such confidentiality obligations shall expire two (2) years after the termination of this Agreement. Modification. No modification of this Agreement shall be enforceable, unless in writing and executed by the persons sought to be bound thereby.    
PLEASE ACKNOWLEDGE  YOUR ACCEPTANCE OR NON-ACCEPTANCE OF ALL THE TERMS OF THIS AGREEMENT BY CLICKING ON ONE OF THE BUTTONS BELOW.
 
 
HOU 0021306.00001: 1332959v1
 
 
 
 
 
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