Affygility Confidential
2024-08-16

SOFTWARE AS A SERVICE AGREEMENT

This Software as a Service Agreement (the “Agreement”) governs Customer’s procurement and use of the Affygility Services (defined below). This Agreement is made by and between Affygility Solutions, LLC, a Colorado limited liability company, with offices located at 390 Interlocken Crescent Suite 350, Broomfield, CO 80021 (“Affygility”) and the Customer specified on the applicable Order (“Customer”), and is made effective as of the date Customer executes the first ordering document (including an Order) pursuant to this Agreement (the “Effective Date”) as set forth below.

BY ACCEPTING THIS AGREEMENT BY EXECUTING AN ORDER OR OTHER WRITTEN DOCUMENT WITH AFFYGILITY THAT REFERENCES THIS AGREEMENT THE CUSTOMER AGREES TO COMPLY WITH THE TERMS OF THIS AGREEMENT. IF AN INDIVIDUAL IS ACCEPTING THE TERMS ON BEHALF OF A LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT THEY ARE AT LEAST EIGHTEEN YEARS OF AGE AND HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, AND REFERENCES TO “CUSTOMER” HEREIN SHALL REFER TO SUCH ENTITY.

This Agreement, together with any Orders (and statements of work), which reference this Agreement, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings and agreements. This Agreement prevails over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance by Affygility of any of Customer’s terms and conditions and does not serve to modify or amend this Agreement.

1. Definitions.

“Affiliate” means any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the applicable party.

“Affygility Materials” means the Affygility Services, Monographs, Resultant Data and any and all other information, data, hardware, software, and other technologies or deliverables that are provided or used by Affygility in connection with the Affygility Services and/or Toxicology Support Services, but not including Third-Party Materials.

“Authorized Purposes” means Customer’s internal pharmaceutical research and/or internal pharmaceutical manufacturing business activities.

“Authorized Users” means Customer’s employees, consultants and contractors who are authorized by Customer to access and use the Affygility Services. In each case, Authorized Users must (a) have an email address issued by the Customer associated with a domain name owned or controlled by Customer and (b) have job responsibilities primarily associated with Authorized Purposes.

“Customer Data” means the electronic data that is uploaded by Customer into, the Affygility Services, and excludes Resultant Data.

“Intellectual Property Rights” means all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses (including reasonable attorneys’ fees).

“Monographs” means the occupational exposure limit (“OEL”) and/or acceptable/permitted daily exposure (“ADE”/“PDE”) toxicology monographs made available by Affygility through the Affygility Services. Monographs are typically related to a single active pharmaceutical ingredient.

“Order” means a mutually executed order form that references this Agreement and sets forth the Affygility Services ordered by Customer, along with applicable Fees, Order Term (as defined below), and such other terms as the parties may agree.

“Resultant Data” means (a) data and information related to Customer’s use of the Affygility Services and (b) all data and information extracted or otherwise generated from the Customer Data which has been aggregated and/or anonymized, including for the purpose of training machine learning or artificial intelligence models used by Affygility.

“Size” means Customer’s number of full-time equivalent workers (employees and independent contractors performing services substantially similar to those traditionally provided by employees).

“Third-Party Materials” means materials and information, including any open-source or other software, documents, data, content, or components that are not proprietary to Affygility.

“Tier” means the type of Customer account applicable to Customer’s use of the Affygility Services and Monographs, as determined based on Customer’s Size. As of the Effective Date, Tiers are divided into “Starter”, “Professional” and “Enterprise”, and the specific Size requirements and authorized scope of use for each Tier are set forth in Affygility’s standard documentation (as may be updated by Affygility from time to time).

“Toxicology Support Services” means online and telephone based professional toxicology services related to the Monographs to (a) answer questions and provide clarifications with respect to particular Unlocked Monographs, and (b) respond to regulatory questions regarding compliance activities (including drafting letters and emails to respond to the foregoing). Toxicology Support Services do not include any in-person support services, or custom toxicology support work (including any requests to add new items or compounds to the Monograph database), each of which, if agreed to by the parties, will be subject to a separate written agreement governing such work.

“Unlock” means, with respect to a given Monograph, the ability to view the full contents of said Monograph and the ability to generate and download a “PDF” version of said Monograph. Monographs which have been Unlocked by Customer are referred to as “Unlocked Monographs”.

2. Access and Use.

   1. Access Grant. Subject to the terms and conditions of this Agreement, Affygility hereby grants to Customer a non-exclusive, revocable, non-transferable, non-sublicensable right for Authorized Users to access and use the software products and services set forth in an Order (the “Affygility Services”) as made available to Customer for Authorized Purposes during the applicable Order Term. Customer is responsible for and shall ensure that its Authorized Users use the Affygility Services in accordance with the terms and conditions of this Agreement. Customer is responsible for all activity occurring under its Authorized Users’ account(s). Each Authorized User may only be a single human user. Account sharing is prohibited, and Customer will not attempt to circumvent the Authorized User count restrictions in this Agreement, such as by improperly rotating personnel as Authorized Users for reasons unrelated to legitimate personnel reassignments. Any breach of this Agreement by an Authorized User shall be deemed a breach of the Agreement by Customer. Affygility may make changes to the Affygility Materials from time to time; provided, however that such changes will not materially degrade the performance of the Affygility Services taken in the aggregate. Affygility will use commercially reasonable efforts to make the Affygility Services available to Customer and Authorized Users, provided that Affygility will not be liable for any availability outage resulting from downtime for maintenance of the Affygility Services or from items outside of Affygility’s reasonable control. Customer’s use of any Third-Party Materials are licensed by their applicable provider, and Affygility makes no warranties and assumes no liability for Customer’s or Authorized Users’ use of Third-Party Materials.

   2. Tiers. Each Order will set forth the applicable initial Tier for Customer’s use of the Affygility Services. Customer’s Tier may change during the course of an Order Term, as set forth in Section 2.c. Inclusion in a particular Tier determines the number of Authorized Users which Customer is entitled to designate to access the Affygility Services, as well as the number of Monographs that Customer’s Authorized Users are permitted to Unlock and use on a monthly basis (measured from the first day of the calendar month to the last day of the calendar month).

      1. Included Authorized User Counts. If Customer wishes to request access for additional Authorized Users in excess of the base number applicable to its Tier, Customer may purchase additional Authorized User access for a per-Authorized User Fee at Affygility’s then-current rates. If Customer purchases additional Authorized User access, Customer cannot reduce its Authorized User count, and must maintain at least that increased number of Authorized Users, for the remainder of the current Order Term.

      2. Included Monograph Unlocks. Unlocks must be used in the month to which they apply; Unlocks do not roll-over from month to month, and Affygility does not offer refunds for any unused Unlocks. In addition, inclusion in the “Professional” and “Enterprise” Tiers entitles Customer to receive access to updated versions of Unlocked Monographs during the applicable Order Term at no additional charge (and without counting against monthly Unlock limits) as Affygility makes those updates available to its customers generally; Customers in the “Starter” Tier may instead receive access to updated versions during the Order Term by re-Unlocking the applicable Monograph(s), which will count against the Customer’s monthly Unlock limits. If Customer wishes to Unlock Monographs in excess of the monthly cap applicable to its Tier, Customer may purchase additional Monograph Unlocks for a per-Unlock Fee at Affygility’s then-current rates. These additional Unlocks may be purchased on a month-by-month basis (i.e., purchasing additional Unlocks for a given calendar month does not mean that Customer must purchase the same number of Unlocks for any other calendar month, subject to the floor of the number of Unlocks included in Customer’s Tier).

   3. Changing Tiers. (i) As part of the process of preparing each Order, (ii) as part of each Order renewal process, (iii) upon any assignment of this Agreement as set forth in Section 13, (iv) upon any corporate acquisition by Customer (whether via asset purchase, merger, equity purchase or otherwise) which materially increases the Size of Customer (including any acquisition which, regardless of absolute scale, would cause Customer to move to a new Tier); and (v) at any time upon Affygility’s reasonable request, Customer will provide to Affygility complete and accurate information regarding Customer’s Size so that Affygility may determine the appropriate Tier for Customer. If a Customer increases in Size such that it would move to a higher Tier, Affygility will provide Notice of such increase to Customer, following which Notice Affygility will be entitled to move the Customer to that higher Tier, in which case Customer may designate additional Authorized Users and access the additional monthly Monograph Unlocks available to that Tier and Affygility will invoice Customer for the additional applicable Fees for the higher Tier for the remainder of the current Order Term. In addition, the parties may mutually agree in writing to have Customer move to a higher Tier (with associated Monograph Unlock limits and Fees) even if Customer would not otherwise meet the Size threshold for that Tier. However, if Customer decreases in Size such that it would move to a lower Tier, instead Customer will remain at the highest Tier applicable to it at any time during the applicable Order Term for the remainder of that Order Term, in which case Customer may continue to designate the number of Authorized Users and access the monthly Monograph Unlocks available to that higher Tier and Affygility will invoice Customer for the applicable Fees.

   4. Monograph Uses. Subject to Customer’s compliance with the terms and conditions of this Agreement, including Sections 2.a and 3, Affygility hereby grants to Customer a non-exclusive, revocable, perpetual, non-transferable, non-sublicensable license to use the Unlocked Monographs as made available to Customer for Authorized Purposes. In addition, Customer may make the Monographs available to (i) its regulating authorities, as necessary to maintain its compliance functions, (ii) its contract manufacturer, as necessary to facilitate those contract manufacturers creating applicable products for or on behalf of Customer in compliance with applicable OEL/ADE requirements, and (iii) if Customer is a contract manufacturer, to the entity hiring Customer to produce products, as necessary to demonstrate Customer’s compliance with applicable OEL/ADE requirements in the performance of its services for said entity. Customer will be responsible for all use of the Monographs by any third party permitted by this Section, and any act or omission of such a third party which would constitute a breach of this Agreement if undertaken by Customer will be considered a breach hereof by Customer.

   5. Toxicology Support Services. Affygility will use commercially reasonable efforts to provide the Toxicology Support Services as ordered by Customer. Customer will be entitled to request a set number of hours per calendar month of Toxicology Support Services at no additional charge depending on its Tier, as set forth in Affygility’s standard documentation (as may be updated by Affygility from time to time). Customer may request additional Toxicology Support Services, which will be charged at Affygility’s then-current rates. In addition to the terms and conditions set forth in this Agreement, all Toxicology Support Services are subject to the additional terms and conditions set forth in Affygility’s Toxicology Services terms (as may be updated by Affygility from time to time), which will control over this Agreement in the event of conflict.

   6. Affiliates. Customer’s Affiliates which constitute subsidiaries 100% owned by Customer may also enter into Orders under this Agreement. If they do so, such Affiliate agrees to be bound by the terms of this Agreement, with references to “Customer” read instead to apply to the applicable Affiliate. For each Order, only the applicable Affiliate may access and/or use the Affygility Services listed on the Order, and those rights do not extend to any of that entity’s Affiliates. Customer will be responsible for all use of the Affygility Services by its Affiliates, and any act or omission of a Customer Affiliate which would constitute a breach of this Agreement if undertaken by Customer will be considered a breach hereof by Customer. Customer’s Affiliates which are not 100%-owned subsidiaries may not enter into Orders under this Agreement and must instead enter into separate agreement(s) with Affygility to access and/or use the Affygility Services or any documents or information obtained therefrom (including any Monographs).

3. Use Restrictions. Customer shall not, and shall not permit any third party (including any Customer Affiliate) to: (a) copy, modify, or create derivative works or improvements of the Affygility Materials; (b) except as expressly set forth in Section 2.d, rent, lease, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any of the Affygility Materials to any third party; (c) reverse engineer, disassemble, decompile, adapt, or otherwise attempt to derive or gain access to the source code of any of the Affygility Materials; (d) bypass or breach any security device in the Affygility Materials; (e) input, upload, transmit, or otherwise provide to Affygility, any materials that are unlawful or injurious, or contain or transmit any virus, worm, malware, or other malicious computer code; (f) damage, disrupt, disable, interfere with, or otherwise impede or harm the Affygility Materials; (g) remove, delete, alter, or obscure any trademarks or other proprietary or confidential markings from the Affygility Materials; (h) access or use any of the Affygility Materials in a manner that infringes, misappropriates, or otherwise violates any third-party Intellectual Property Right or applicable law, including any laws related to fraud or corruption; (i) access or use the Affygility Materials to develop a competing service or product; (j) use any robot, spider, rover, scraper or other automatic device, technology, process or means to access the Affygility Services for any purpose, including monitoring, chacheing, masking, extracting data from, distributing or copying any of the material on the Affygility Services, including any Monographs; (k) without Affygility’s express prior written consent, use Affygility Materials in connection with or in order to train any deep learning, machine learning, large language model and/or other artificial intelligence technologies, including any and all neural networks, statistical learning algorithms (like linear and logistic regression, support vector machines, random forests, k-means clustering), or reinforcement learning; or (l) otherwise access or use the Affygility Materials except as expressly authorized in this Agreement. Any breach of this Section 3 may result in the termination of the applicable Order and/or this Agreement, and Affygility reserves the right to suspend Customer’s and/or the applicable user account’s access to the Affygility Materials upon any reasonably suspected such breach. If Customer becomes aware of any actual or threatened activity prohibited by this Section 3, Customer shall, and shall cause its Authorized Users to, notify Affygility and immediately take all measures necessary to stop the activity.

4. Customer Obligations. Customer shall operate in good repair all systems and networks required to access and use the Affygility Materials. Customer is solely responsibility for the Customer Data, including its accuracy, legality and quality, and Customer represents and warrants that Customer has the necessary rights to the Customer Data, so that Affygility’s use will not infringe or misappropriate any third-party Intellectual Property Rights, or violate any applicable law.

5. Fees and Payment. Customer shall pay Affygility the fees set forth in the applicable Order (and/or statement of work) (“Fees”) using a method mutually agreed in writing. If the parties agree that Customer will pay via a third-party payment processor, Customer hereby consents to Affygility’s use of its designated payment processor, as may be updated by Affygility from time to time, for the processing of Customer’s Fees. All Fees are exclusive of taxes and similar assessments, and Customer is responsible for all sales, use, and excise taxes, and any other similar taxes including but not limited to GST and VAT, imposed by a governmental authority, other than any taxes imposed on Affygility’s income. Unless otherwise specified in the applicable Order, all Fees are invoiced annually in advance. However, if a Customer’s Tier increases during the Order Term, any additional Fees associated with the new Tier will be invoiced in the month following the Tier increase. Customer must pay all Fees in full prior to receiving access to Affygility Services, unless otherwise outlined in the applicable Order or statement of work. If Customer fails to make any payment when due and such failure continues for thirty (30) days past the due date, then, in addition to all other remedies that may be available, Affygility may terminate or suspend Customer’s access to the applicable Affygility Materials. Affygility reserves the right to modify its Fees in its sole discretion upon Notice to Customer, which Fee modifications will become effective (a) immediately for new Orders, and (b) upon the commencement of the next Order Term for renewals of existing Orders, provided that Affygility provided Notice at least forty-five (45) days before the end of the then-current Order Term.

6. Confidentiality. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose Confidential Information to the other party (as the “Receiving Party”). Subject to the exclusions below, “Confidential Information” means information in any form marked “confidential” or otherwise should be reasonably known to be “confidential.” The Receiving Party shall safeguard the Confidential Information using at least the degree of care it uses to protect its own information and in no event using less than reasonable care. Without limiting the foregoing, all Affygility Materials and this Agreement are the Confidential Information of Affygility. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction; (b) was or becomes generally known by the public other than by the Receiving Party’s breach of this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party, and under no obligation to maintain confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed. The Receiving Party shall only access or use Confidential Information as necessary to exercise its rights or perform its obligations under this Agreement and will only disclose Confidential Information to those who need to know under this Agreement. Receiving Party is responsible for any breach of this Section by such parties. If the Receiving Party is compelled to disclose any Confidential Information then, it shall: (y) promptly, and prior to such disclosure, notify the Disclosing Party in writing; and (z) provide reasonable assistance to the Disclosing Party to oppose such disclosure or seek a protective order. If the Receiving Party remains required by law to disclose such Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that it is legally required to disclose. Customer hereby consents to Affygility’s collection and use of data as set forth in the Affygility privacy policy, currently available at https://affygility.com/privacy/, as it may be updated by Affygility from time to time.

7. Intellectual Property Rights. All right, title, and interest in and to the Affygility Materials, including all Intellectual Property Rights therein, are and will remain the property of Affygility and, with respect to Third-Party Materials, the applicable third-party providers. All other rights in and to the Affygility Materials are expressly reserved by Affygility. Customer hereby unconditionally and irrevocably grants to Affygility an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto. Customer is and will remain the owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted herein. Customer hereby grants to Affygility all such rights and permissions in or relating to Customer Data as are necessary for Affygility (and its contractor and personnel) to perform Affygility’s obligations under this Agreement.

8. Representations and Warranties. Each party represents and warrants that: (a) it is duly organized, and in good standing as an entity under the laws of the jurisdiction of its incorporation; (b) it has the full right, power, and authority to enter into and perform its obligations under this Agreement; and (c) when executed, this Agreement will constitute the legal, valid, and binding obligation of such party. ALL THIRD-PARTY MATERIALS, TOXICOLOGY SUPPORT SERVICES AND THE AFFYGILITY MATERIALS ARE PROVIDED “AS IS.” AFFYGILITY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, OR THAT THE AFFYGILITY SERVICES WILL BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. AFFYGILITY MAKES NO WARRANTY THAT THE TOXICOLOGY SUPPORT SERVICES AND/OR AFFYGILITY MATERIALS WILL MEET CUSTOMER’S REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, HARDWARE OR SYSTEM.

9. Affygility Indemnification. Affygility shall indemnify, defend, and hold harmless Customer from and against any and all Losses resulting from a third-party claim alleging that the Affygility Services infringe such third party’s United States copyright or patent rights; provided, however, that Customer promptly notifies Affygility in writing of such claim, cooperates with Affygility in the defense of such claim, and allows Affygility sole authority to control the defense and settlement of such claim. This Section will not apply to the extent that the alleged infringement arises from: (a) use of the Affygility Services in combination with data, software, hardware, or technology not provided by Affygility; (b) modifications to the Affygility Services not made by Affygility; (c) the Customer Data; (d) the Third-Party Materials; or (e) Customer’s failure to use a modified or replacement version of the applicable Affygility Services made available by Affygility as set forth in (y) below. If any of the Affygility Services are, or in Affygility’s opinion are likely to be, claimed to infringe, misappropriate a third party’s Intellectual Property Right, or if Customer’s use is enjoined or threatened to be enjoined, Affygility may, at its sole option: (x) obtain the right for Customer to continue to use the applicable Affygility Services; (y) modify or replace the Affygility Services, in whole or in part; or (z) terminate this Agreement. THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDIES AND AFFYGILITY’S SOLE LIABILITY FOR ANY CLAIM THAT THE AFFYGILITY MATERIALS INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.

10. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Affygility and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Affygility Indemnitee”) from and against all Losses incurred by the Affygility Indemnitee resulting from a third-party claim that arises out of or results from Customer’s use of the Affygility Materials, the Customer Data or Customer’s breach of any of its representations or warranties under this Agreement; provided, however, that that Affygility promptly notifies Customer in writing of such claim, cooperates with Customer in the defense of such claim, and allows Customer sole authority to control the defense and settlement of such claim, provided further that Customer may not settle any claim in any manner that adversely affects Affygility’s business without the Affygility’s prior written consent (which may not be unreasonably withheld). Affygility may participate in the proceedings at its own cost with counsel of its own choosing.

11. Limitations of Liability. IN NO EVENT WILL AFFYGILITY OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER THIS AGREEMENT, INCLUDING FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, LOSS, INTERRUPTION, OR DELAY OF THE AFFYGILITY MATERIALS; (c) LOSS, DAMAGE, CORRUPTION, BREACH OR RECOVERY OF CUSTOMER DATA; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER AFFYGILITY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF AFFYGILITY AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNTS PAID TO AFFYGILITY UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

12. Term and Termination.

    1. Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier under this Agreement, will continue in effect until the expiration of all active Orders, or as otherwise set forth in this Section (the “Term”). Each Order will continue for the period set forth thereon (the “Initial Order Term”), and then, unless otherwise set forth on the Order, will automatically renew for additional periods of twelve (12) months (each a “Renewal Order Term”, and together with the Initial Order Term the “Order Term”) unless either party provides the other with Notice of intent not to renew at least thirty (30) days prior to the end of the then-current Order Term.

    2. Termination. A party may terminate an Order, effective on written Notice (a) if the other party materially breaches this Agreement with respect to such Order, and such breach is either incapable of cure or remains uncured thirty (30) days after written Notice of breach from the non-breaching party; or (b) if the other party becomes insolvent or fails to pay, its debts as they become due; files, or has filed against it, a petition for voluntary or involuntary bankruptcy; makes or seeks to make a general assignment for the benefit of its creditors; or applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by a court of competent jurisdiction. Upon any expiration or termination of an Order, all rights and licenses herein with respect to such Order will immediately terminate, and Customer shall promptly return to Affygility or destroy all of the Affygility Materials and Affygility’s Confidential Information in its possession or control which are applicable to such Order (and not any other still-active Order), provided that, so long as the expiration or termination was not due to Customer’s uncured material breach or insolvency, Customer may continue to retain and use any previously Unlocked Monographs in the same manner as prior to the expiration or termination (subject to Customer’s continued compliance with the use restrictions herein, and without any right to receive any further updates to the Monographs). Upon Affygility’s request, Customer shall certify to Affygility in writing that it has complied with the requirements of this Section. If any Order is terminated early other than due to Affygility’s uncured material breach or insolvency, Customer will remain responsible to pay all applicable Fees for the full Order Term of such Order, which will immediately become fully due and payable. The following Sections will survive any expiration or termination of this Agreement: 2.d (so long as the expiration or termination was not due to Customer’s uncured material breach or insolvency), 3, 5–11, this Section 12.b, 13, and 15–18.

13. Assignment. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except that (a) Affygility may assign this Agreement to an Affiliate, and (b) either party may assign this Agreement to its successor in interest (“Successor”) pursuant to a transfer of all or substantially all of Affygility’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. In the case of an assignment by Customer (whether with Affygility’s consent or without as Affygility’s consent as permitted under (b) in the preceding sentence), Customer’s assignee or Successor will promptly Notify Affygility of the assignment and accurately report such information regarding the assignee/Successor’s entity Size as reasonably requested by Affygility in order to determine the appropriate Tier for the assignee/Successor. Any purported assignment in violation of this Section will be void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.

14. Divestitures. If a change to all or part of Customer’s business structure, by merger, acquisition, divestiture or reorganization (“Reorganization”) results in a business that was previously a business unit or facility of Customer becoming part of a separate entity that is no longer wholly owned by Customer (“Divested Entity”), then, upon Customer’s written request, that Divested Entity may continue to access and use the Affygility Services in the same manner as Customer under the terms of this Agreement for a period of up to six months following the date of the Reorganization. Following such period, the Divested Entity must enter into a separate agreement with Affygility in order to continue to access any use the Affygility Services (including any previously Unlocked Monographs, whether or not such Unlocked Monographs are in the Divested Entity’s possession or control or were Unlocked for the benefit of the business now operated by the Divested Entity). Any access and use of the Affygility Services by the Divested Entity pursuant to this Section will be aggregated with use by Customer for purposes of evaluating Customer’s compliance with applicable use restrictions hereunder. Customer will remain responsible for the Divested Entity’s compliance with the terms of this Agreement, including without limitation, any payment obligations hereunder, and any act or omission of the Divested Entity which would constitute a breach of this Agreement if undertaken by Customer will be considered a breach hereof by Customer, unless and until Affygility and the Divested Entity enter into a direct agreement regarding the Divested Entity’s access and use of the Affygility Services.

15. Governing Law; Venue. This Agreement is governed by and construed in accordance with the laws of the State of Colorado without giving effect to any choice or conflict of law provision. Any action or proceeding arising out of or related to this Agreement will be instituted exclusively in the County of Denver in the State of Colorado, and each party irrevocably submits to the jurisdiction of such courts. Service of process by mail to such party’s address set forth in the Order shall be effective service of process for any such action.

16. Arbitration. Any dispute among the parties involving any matter arising under this Agreement shall be resolved by binding arbitration held in Denver County, Colorado by a single arbitrator in accordance with the then current rules of Judicial Arbitration and Mediation Services (“JAMS”), and the arbitrator shall apply the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Hearings will take place pursuant to the standard procedures of the JAMS rules that contemplate in person hearings. The arbitrator shall agree to these limits prior to accepting appointment. The parties will share equally in the costs of the arbitrator and the administrative fees of the arbitration, provided that the prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement (including recovering the costs of the arbitrator and the administrative fees of the arbitration). The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or legal argument or cross-examine witness. Nothing in this Section shall limit Affygility’s right to obtain injunctive relief in court as set forth in Section 18.

17. Notices. All notices hereunder (each, a “Notice”) must follow either the form of (a) or (b), and are only effective if the party giving Notice has complied with the requirements of this Section:

    1. By Either Party. In writing and sent to the address set forth in the Order (or to such other address that may be designated by the party in writing). All such Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Such a Notice is effective upon receipt by the receiving party.

    2. By Affygility Only. In the case of Notices sent by Affygility to Customer, via email and sent to the email address of the person who submitted the approved Order to Affygility. Such a Notice is effective upon sending if Affygility does not receive an automated “bounceback” message from Customer’s email provider stating that the email cannot be delivered. If the person who submitted the Order ceases to be an employee or contractor of Customer, Customer will promptly notify Affygility and provide an updated email address for receipt of Notices.

18. Miscellaneous. The relationship between the parties is that of independent contractors and nothing in this Agreement shall be construed as creating any agency, partnership, joint venture, or other joint relationship between the parties. The headings in this Agreement are for reference only. All Affygility Materials (including all Monographs) are provided in the English language only. By accepting this Agreement (including by executing an Order), Customer agrees to receive marketing emails and communications related to the subject matter hereof from Affygility. Nothing herein, express or implied, is intended to or shall confer upon any third party any legal or equitable right, benefit, or remedy of any kind. This Agreement may only be modified by the written agreement of both parties. If a provision is invalid, illegal, or unenforceable in any jurisdiction, it shall not affect any other provision in this Agreement or render unenforceable such provision in any other jurisdiction. Upon any such determination of invalidity, illegality, or unenforceability, the parties shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible. In no event will a party be liable to the other party in the event failure or delay occurs due to any circumstances beyond such party’s reasonable control, such as fire, explosion, 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 or regulatory or governmental bodies (but excluding Customer’s payment obligations under this Agreement). No waiver by any party of any of the provision shall be effective unless set forth in writing. No partial or failure to exercise, or delay in exercising, any rights arising from this Agreement will operate or be construed as a waiver thereof. Customer agrees that a breach or threatened breach under Sections 2.a, 2.b, 2.d, 2.f, 3, 6 or 7, would cause Affygility irreparable harm for which monetary damages would not be an adequate remedy, and Affygility will be entitled to equitable relief (without any requirement to post a bond or other security) from any court of competent jurisdiction. Affygility will not be required to prove actual damages or that monetary damages are inadequate. Such remedies are in addition to all other remedies that may be available at law, in equity, or otherwise. Customer agrees to the use of electronic documents and records in connection with this Agreement and all future documents and records in connection with the Affygility Services—including this electronic signature and disclosure notice—and that this use satisfies any requirement that Affygility provide Customer these documents and their content in writing. If Customer does not agree, it must not enter into this Agreement. Customer has the right to receive a paper copy of all documents and records if and to the extent required under applicable law. Customer may (a) obtain a paper copy of any document or record (free of charge), (b) withdraw Customer’s consent to the use of electronic documents and records, or (c) update Customer’s contact information through Customer’s account. To receive or access electronic documents and records, Customer must have the following equipment and software: (x) a device that is capable of accessing the Internet, (y) a compatible Internet browser, and (z) software that permits Customer to receive and access Portable Document Format or “PDF” files, such as Adobe Acrobat Reader 8.0 or higher. To retain documents and records, Customer device must have the ability to download and store PDF files.