Terms and Conditions
Online Services SUBSCRIPTION Agreement
PLEASE CAREFULLY READ THIS ONLINE SERVICES SUBSCRIPTION AGREEMENT (“AGREEMENT”) BEFORE ACCESSING AND USING THE ONLINE SERVICES PROVIDED TO YOU THROUGH THIS WEB PORTAL by THERMO SCIENTIFIC PORTABLE ANALYTICAL INSTRUMENTS, INC., a Delaware corporation with a business address at 2 Radcliff Rd, Tewksbury, MASSACHUSETTS 01876, USA (“licensor” OR “WE” OR “THERMO”). BY CLICKING ON THE “ACCEPT” BUTTON, AND/OR ACCESSING OR USING THE ONLINE SERVICES, YOU, THE LICENSEE, (“YOU”) ARE STATING THAT YOU HAVE READ THIS AGREEMENT, AGREE TO ALL OF ITS TERMS, AND CONSENT TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON and/OR do not ACCESS OR use the ONLINE SERVICES. IF YOU ARE ACCEPTING this agreement ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER, OR THE APPLICABLE ENTITY, TO THE AGREEMENT; (II) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (III) YOU AGREE, ON BEHALF OF THE PARTY THAT YOU REPRESENT, TO THIS LICENSE. ACCEPTANCE OF THIS AGREEMENT IS REQUIRED AS A CONDITION TO PROCEEDING WITH ACCESS AND USE OF THE ONLINE SERVICES. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT OR IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR THE APPLICABLE ENTITY, YOU MUST NOT ACCESS OR USE THE ONLINE SERVICES.
In consideration of the premises and the mutual covenants contained herein, YOU and LicensOR hereby agree as follows:
1. Use of Online Services.
a. Right to use. Subject to Your payment of all applicable Online Services fees and Your compliance with the terms of this Agreement, We grant you the right to access and use the Online Services included with your Subscription, as further described in this Agreement. We reserve all other rights.
b. Acceptable use. You may use the Online Services only in accordance with this Agreement. You may not rent, lease, lend, resell, transfer the Online Services, or any portion thereof, to or for third parties.
c. End Users. In the event You are accepting this Agreement on behalf of your company, You control access by End Users, and you are responsible for their use of the Online Services in accordance with this Agreement. For example, you will ensure End Users comply with the Acceptable Use Policy.
d. Customer Data. You are solely responsible for the content of all Customer Data. You will secure and maintain all rights in Customer Data necessary for us to provide the Online Services to You without violating the rights of any third party or otherwise obligating Thermo to You or to any third party. Thermo does not and will not assume any obligations with respect to Customer Data or to your use of the Online Services other than as expressly set forth in this Agreement or as required by applicable law.
e. Responsibility for your accounts. You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the Online Services. You must promptly notify our customer support team about any possible misuse of your accounts or authentication credentials or any security incident related to the Online Services.
Thermo reserves the right to terminate and or suspend access at any time to the Online Service if the terms of this Agreement are breached. f. Preview releases. We may make Previews available. Previews are provided "as-is," "with all faults," and "as-available," and are excluded from the SLAs and all limited warranties provided in this Agreement. Previews may not be covered by customer support. Previews may be subject to reduced or different security, compliance, and privacy commitments, as further explained in the Online Services Terms and any additional notices provided with the Preview. We may change or discontinue Previews at any time without notice. We also may choose not to release a Preview into "General Availability."
2. Purchasing Online Services.
a. Available Subscription offers. The Portal provides Offer Details for available Subscriptions, which generally can be categorized as one or a combination of the following: Commitment Offering. You commit in advance to purchase a specific quantity or term of Online Services for use during a Term and pay upfront or on a periodic basis in advance of use. With respect to the Online Services, additional or other usage (for example, usage beyond your commitment) may be treated as a Consumption Offering. Committed service not used during the Term will expire at the end of the Term. Consumption Offering (also called Pay-As-You-Go). You pay based on actual usage in the preceding month with no upfront commitment. Payment is on a periodic basis in arrears. Limited Offering. You receive a limited quantity of Online Services for a limited term without charge (for example, a free trial). Provisions in this Agreement with respect to pricing, cancellation fees, payment, SLAs, and data retention may not apply to such offering.
b. Ordering. By ordering or renewing a Service Subscription, You agree to the Offer Details for that Subscription. Unless otherwise specified in those Offer Details Online Services are offered on an "as available" basis. Some offers may permit You to modify the quantity of Online Services ordered during the Term of a Subscription. Additional quantities of Online Services added to a Subscription will expire at the end of that Subscription. If You decrease the quantity during a Term, we may charge You a cancellation fee for the decrease in quantity as described below in Section 3.b.
c. Pricing and payment. Payments are due and must be made according to the Offer Details for Your Subscription. For Commitment Offerings, the price level may be based on the quantity of Online Services You ordered. Some offers may permit you to modify the quantity of Online Services ordered during the Term and your price level may be adjusted accordingly, but price level changes will not be retroactive. During the Term of Your Subscription, prices for Online Services will not be increased, as to your Subscription, from those posted in the Portal at the time your Subscription became effective or was renewed, except where prices are identified as temporary in the Offer Details, or for Previews. All prices are subject to change at the beginning of any Subscription renewal. For Consumption Offerings, pricing is subject to change at any time upon notice.
d. Renewal. Upon renewal of your Subscription, this Agreement will terminate, and Your Subscription will thereafter be governed, by the terms and conditions set forth in the Portal on the date on which Your Subscription is renewed (the "Renewal Terms"). If you do not agree to any Renewal Terms, You may decline to renew your Subscription. For Commitment Offerings, You may choose to have a Subscription automatically renew or terminate upon expiration of the Term. Automatic renewal is pre-selected. You can change Your selection at any time during the Term. If the existing Term is longer than one calendar month, we will provide you with notice of the automatic renewal before the expiration of the Term. For Consumption Offerings, Your Subscription will renew automatically for additional one-month terms until you terminate the Subscription. For Limited Offerings or Trial Subscriptions, renewal may not be permitted.
e. Taxes. Prices are exclusive of any taxes. You must pay any applicable value added, goods and services, sales, or like taxes that are owed with respect to any order placed under this Agreement and which we are permitted or required to collect from you under applicable law.
3. Term, termination, and suspension.
a. Agreement term and termination. This Agreement will remain in effect until the expiration, termination, or renewal of Your Subscription, whichever is earliest.
b. Subscription termination. You may terminate a Subscription at any time during its Term; however, you must pay all amounts due and owing before the termination is effective. One-Month Subscription. A Subscription having a one-month Term may be terminated anytime without any cancellation fee. Subscriptions of more than one-month. If you terminate a Subscription within 30 days of the date on which the Subscription became effective or was renewed, no refunds will be provided, and You must pay for the initial 30 days of the Subscription, but no payments will be due for the remaining portion of the terminated Subscription. If you terminate a Subscription at any other time during the Term, you must pay for the remainder of the Term, and no refunds will be provided. For all other Online Services, if you terminate a Subscription before the end of the Term, You must pay a fee equal to one-month's Subscription fee and you will receive a refund of any portion of the Subscription fee you have paid for the remainder of the Term; provided, however, no refunds will be provided for partially unused months.
c. Suspension. We may suspend Your use of the Online Services if: (1) it is reasonably needed to prevent unauthorized access to Customer Data; (2) You fail to respond to a claim of alleged infringement under Section 5 within a reasonable time; (3) You do not pay amounts due under this agreement; or (4) You do not abide by the Acceptable Use Policy or you violate other terms of this Agreement. If one or more of these conditions occurs, then: For Limited Offerings, We may suspend Your use of the Online Services or terminate Your Subscription and your account immediately without notice. For all other Subscriptions, a suspension will apply to the minimum necessary part of the Online Services and will be in effect only while the condition or need exists. We will give notice before We suspend, except where we reasonably believe we need to suspend immediately. We will give at least 30 days' notice before suspending for non-payment. If you do not fully address the reasons for the suspension within 60 days after we suspend, we may terminate Your Subscription and delete your Customer Data without any retention period. We may also terminate your Subscription if Your use of the Online Services is suspended more than twice in any 12-month period.
a. WE PROVIDE NO, AND DISCLAIM ALL, WARRANTIES, EXPRESS, IMPLIED, STATUTORY, AND OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THESE DISCLAIMERS WILL APPLY EXCEPT TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT THEM.
5. Limitation of liability.
a. Limitation. The aggregate liability of each party for all claims under this Agreement is limited to direct damages up to the $100, that in no event will a party's aggregate liability for any Online Service exceed the $100 amount. For Online Services provided free of charge, Thermo will have no liability.
b. EXCLUSION. Neither party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the party knew they were possible or reasonably foreseeable.
Notices. You must send notices by mail, return receipt requested, to the address below.
Notices and Copies should be sent to:
Thermo Scientific Portable Analytical Instruments, Inc.
2 Radcliff Road
Tewksbury, MA 01876 USA
Attention: Jason Wagstaff
You agree to receive electronic notices from us, which will be sent by email to the account administrator you specify in the Portal. Notices are effective on the date on the return receipt or, for email, when sent. You are responsible for ensuring that the account administrator email address that you specify in the Portal is accurate and current. Any email notice that we send to that email address will be effective when sent, whether or not you actually receive the email.
Assignment. You may not assign this Agreement either in whole or in part.
Severability. If any part of this Agreement is held unenforceable, the rest remains in full force and effect.
Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
No agency. This Agreement does not create an agency, partnership, or joint venture.
No third-party beneficiaries. There are no third-party beneficiaries to this Agreement.
Applicable law and venue. This Agreement and any dispute arising hereunder is governed by the laws of the Commonwealth of Massachusetts, USA, without regard to its conflict of laws principles, and is subject to the exclusive jurisdiction of the federal and state courts located in the Commonwealth of Massachusetts, USA This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of intellectual property rights. Entire agreement. This Agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications. In the case of a conflict between any documents in this Agreement that is not expressly resolved in those documents, their terms will control in the following order of descending priority: (1) this Agreement, (2) the applicable Offer Details, and (3) any other documents or terms referenced in this Agreement. Survival. The terms in Sections 1, 2.e, 3.b, 4, 5, 6, and 7 will survive termination or expiration of this agreement. U.S. export jurisdiction. The Products are subject to U.S. export jurisdiction. You must comply with all applicable laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-use and destination restrictions issued by U.S. and other governments. Accordingly, You shall not export, re-export or provide access to the Online Services or Software in violation of such laws. Force majeure. Neither party will be liable for any failure in performance due to causes beyond that party's reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Online Services)). This Section will not, however, apply to your payment obligations under this Agreement.
"Acceptable Use Policy" provides terms governing the use of our Online Services
"Consumption Offering", "Commitment Offering", or "Limited Offering" describe categories of Subscription offers and are defined in Section 2.
"Customer Data" is defined as data generated through the Customer’s use of our products and services
"End User" means any person you permit to access Customer Data hosted in the Online Services or otherwise use the Online Services.
"Offer Details" means the pricing and related terms applicable to a Subscription offer, as published in the Portal.
"Online Services" means any of the Thermo hosted online services subscribed to by Customer under this Agreement.
"Previews" means preview, beta, or other pre-release version or feature of the Online Services or Software offered by Thermo to obtain customer feedback.
"Portal" means the Online Services' respective web sites that can be found at https://portables.thermoscientific.com/ , or at an alternate website we identify.
"Subscription" means an enrollment for Online Services for a defined Term as specified on the Portal. You may purchase multiple Subscriptions, which may be administered separately and which will be governed by the terms of a separate Thermo Online Subscription Agreement.
"Term" means the duration of a Subscription as indicated on the web site (e.g., 30 days or 12 months).