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TERMS OF SERVICE
West Pharmaceutical Services, Inc. (“West,” “we,” or “us”) offers DeltaCube, a web-based platform for use in providing assistance in the development or selection of closures and seals on pharmaceutical containers (the “Platform”).
These TERMS OF SERVICE (“Terms”) form a legally binding agreement (“Agreement”) between West and you or, if you are accessing the Platform on behalf of another organization or entity, that organization or entity (in either case, “you” or “your”).
You are entering into the Agreement with West to become a registered user of the platform (“User”) and to receive a subscription to access certain functionality of the Platform (“Services”).
This Agreement governs your access to and use of the Platform and Services. Your access to and use of the Platform and Services is strictly limited to the express rights granted in this Agreement. West does not grant you any rights to access or use the Platform or Services unless you agree to be legally bound by this Agreement.
PLEASE CAREFULLY READ THESE TERMS. YOUR ACCESS TO AND USE OF THE PLATFORM AND SERVICES ARE CONDITIONED UPON YOUR AGREEMENT TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THESE TERMS, WEST IS NOT WILLING TO ENTER INTO THE AGREEMENT WITH YOU OR TO PROVIDE YOU WITH ACCESS TO THE PLATFORM OR SERVICES. BY ACCEPTING THESE TERMS, OR BY ACCESSING OR USING THE PLATFORM OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THESE TERMS AND AGREE TO BE BOUND BY THE AGREEMENT.
1. TERM. The Agreement is effective when you first agree to these Terms or first access or use the Platform or Services. The Agreement will continue until termination as specified herein.
2. ORDERS. You may place orders (whether in paper form, online, or otherwise) with West for access to certain Services (each, an “Order”). All Orders are subject to acceptance by West and no Order is valid until accepted by West. Following acceptance by West, each Order will constitute a part of the Agreement. The Agreement constitutes the entire agreement between you and West regarding the Platform and Services. The Agreement supersedes all oral or written agreements or understandings between you and West as to the subject matter of the Agreement. All access to and use of the Services will be governed by the terms of the Agreement. Any different or additional terms or conditions in any purchase order or other document that you provide to West (including in connection with an Order) are of no force or effect, and will not be enforceable against or otherwise bind West.
3. SUBSCRIPTIONS. Access to the Services is provided on a subscription basis solely for the term of the subscription specified in each applicable Order. Unless otherwise indicated in an applicable Order, each subscription will continue for the subscription term specified in such Order and will thereafter automatically renew for additional renewal terms of equal duration, unless you notify West of your intention not to renew such subscription at least 60 days prior to the end of the then-current period.
4. ACCESS. Subject to your compliance with the Agreement, West will provide you with a limited, revocable, non-sublicensable, non-exclusive right to access Platform for purposes of using the Services during the applicable subscription term for the Services, solely for your own internal business purposes as specified by the Agreement.
5. ACCOUNT. You may be required to establish a login and account to access the Platform and Services (an “Account”). Your Account will establish you as a User on the Platform. Approval of your access to the Platform will be at the sole discretion of West. You will only access the Services through your own Account. You may not share or provide access to your Account (or the username or password for your Account) to a third party or allow a third party to access your Account. You are solely responsible for safeguarding the username and password for your Account and for all use of the Platform, Services through your Account, including any fees, charges, liabilities or damages incurred through the use of your Account. You are responsible for all liabilities and damages incurred through the use of your Account and any transactions completed through your Account will be deemed to have been completed by you. You agree that all information provided in connection with establishing your Account will be accurate and complete. You will provide West with prompt updates to any such information as necessary to maintain such information as accurate and complete. You may be required to designate an “Account Administrator” when you establish your Account. The Account Administrator will have ultimate authority regarding the administration of your Account, including should any dispute arise regarding your Account. You may change the Account Administrator for your Account (1) by written notice provided to West by the then-current Account Administrator, or (2) by written notice provided to West your officer or director (if you are entity or other organization). West will not be liable for any loss, damage or liability arising from any unauthorized access to or use of your Account and you will remain liable for any such losses, damages or liabilities sustained by West or any third party due to any such unauthorized use. You will notify West immediately of any breach of security or if your Account (or the username or password for your Account) is lost, stolen or otherwise compromised.
6. CONDITIONS OF USE. The Platform and all software, hardware, and other technology used by or on behalf of West to provide the Platform and Services (collectively, “Technology”) constitutes the valuable Intellectual Property Rights (as defined below) of West and its licensors and providers. As an express condition on the rights granted to you herein, you will not, and will not permit or authorize any third party to: (1) use or access the Technology or Services or any portion thereof for any purpose except as expressly provided in this Agreement; (2) use the Technology or Services in any unlawful or illegal manner or for any unlawful, misleading, malicious, or discriminatory purpose; (3) use the Technology or Services in a manner that infringes, misappropriates, or otherwise violates the Intellectual Property Rights or other Rights of West or any third party; (4) take or permit any action that could damage, disable, overburden, or impair the Technology or Services; (5) upload or expose the Technology or Services to any viruses or malicious code; (6) modify, adapt, alter, translate, or create derivative works based on any portion of the Technology or Services; (7) reproduce, distribute copies, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the Technology or Services or portions thereof or access or derive any proprietary data used by the Technology; (8) circumvent or overcome (or attempt to circumvent or overcome) any security or technological protection measures, including those intended to restrict access to user data, proprietary data, or any portion of the Technology or Services; (9) interfere with or disrupt in any manner the integrity, performance, operation, or hosting of the Technology or Services, or attempt to gain unauthorized access to any portion thereof; (10) use automated scripts to collect information from or otherwise interact with the Technology or Services without our prior permission; (11) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Technology or Services; or (12) permit or allow any unauthorized third party to access or use the Technology or Services.
7. YOUR DATA. You are solely responsible for all data, information and content that you provide, disclose, or otherwise make available through the Platform or Services (“Your Data”). As between West and you, you retain all right, title, and interest in and to Your Data. You grant to West all rights and licenses in and to Your Data necessary for West to provide the Services and to use and process Your Data as permitted by this Agreement. You will obtain and maintain all consents, permissions, and rights necessary for: (1) you to provide, disclose, and otherwise make available Your Data through the Services; (2) your use of Your Data through the Services; and (3) all use and processing of Your Data by or on behalf of West as necessary to provide the Services or as permitted or required by this Agreement. You represent and warrant to West that you have and will maintain all such consents, permissions, and rights. West is not responsible or liable for any deletion or loss of any of Your Data or any failure to store or back-up any of Your Data. West may remove any of Your Data from the Platform or Services or take other remedial action at any time, with or without notice, if we reasonably believe that Your Data violates this Agreement or applicable law or to prevent damage, injury, or harm to West, the Platform or Services, or any User or other third party. Notwithstanding the foregoing, West is under no obligation to review any of Your Data for accuracy or potential liability. You assume all risks associated with the use of any of Your Data in connection with the Platform and Services, including any reliance on Your Data or the accuracy or completeness thereof.
8. PLATFORM DATA. Other than Your Data, all data, information and content used in or available through the Services or on the Platform (“Platform Data”) is the sole property of West and its licensors and providers. The Platform Data is for informational purposes only. You are solely responsible for verifying whether the Platform Data and Results meet your needs and the suitability and applicability of the Platform Data and Results to your situation and your intended use thereof.
9. RESULTS. The Services include the results and other output you generate through your use of the Services based on the analyses of Your Data, both alone and with other Platform Data (“Results”). You may use the Results you generate through your use of Services solely for your own internal business purposes. West is under no obligation to review any Results. You are solely responsible for your Results and the accuracy, quality, integrity, legality, reliability, and/ or appropriateness of your Results. You assume all risks associated with all use of your Results. You will not: (1) permit any unauthorized third party to access or use any Platform Data or Results; (2) alter, modify, reproduce, or create derivative works of any Platform Data or Results; (3) distribute, sell, resell, lend, loan, lease, license, sublicense, transfer or otherwise make available any Platform Data or Results to any unauthorized third party; or (3) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any Platform Data or Results. YOU ACKNOWLEDGE THAT THIS AGREEMENT IS NOT A PRODUCT SUPPLY CONTRACT OR A COMMITMENT TO SUPPLY PRODUCTS. WEST DOES NOT COMMIT THAT THE RESULTS WILL BE SUITABLE FOR MANUFACTURE OR PRODUCTION. THIS AGREEMENT IN NO WAY OBLIGATES WEST OR ANY THIRD PARTY TO MANUFACTURE OR SUPPLY ANY PRODUCTS, INCLUDING ANY PRODUCTS BASED ON ANY RESULTS.
10. OWNERSHIP. All right, title and interest in and to the Platform and other Technology, all Services and Platform Data, any and all modifications, configurations, improvements, enhancements, updates, or versions thereof or thereto, all Intellectual Property Rights therein and relating thereto, are and will remain the exclusive property of West and its licensors. You receive no ownership interest in or to the Platform or Technology or associated Intellectual Property Rights, and you are not granted any right or license to use the Technology itself, apart from your limited right to access the Platform and Services under this Agreement. The names, logos and other trademarks of West and those names, logos and trademarks appearing on the Platform and Services are trademarks and service marks of West and its third-party providers and licensors, and you are not granted any right or license to use them under this Agreement. Except as expressly stated in this Agreement, West grants you no other rights or licenses (whether by implication, estoppel, or otherwise) and all rights are expressly reserved by West. For the purposes of this Agreement, “Intellectual Property Rights” means any and all intellectual property and proprietary rights throughout the world, including all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, rights protecting data and databases, and contract rights.
11. REPRESENTATIONS AND WARRANTIES. You represent, warrant and covenant to West that: (1) you have the legal right and authority to enter into the Agreement on behalf of your organization or entity; (2) the Agreement forms a binding legal obligation on you; and (3) you have and will maintain all rights and licenses necessary to perform your obligations under the Agreement and to grant all rights and licenses included in the Agreement.
12. LEGAL AND REGULATORY COMPLIANCE. You acknowledge that the Platform and Services provide a general purpose online service and are not specifically designed to your specific situation, for your specific designs or specifications, or to facilitate your compliance with any specific law, rule, or regulation. Your use of the Platform and Services in compliance with any specific law, rule, or regulation is your sole responsibility. West is not responsible for enabling your compliance with any law, rule, or regulation or for your failure to comply. You represent, warrant and covenant to West that your use of and access to the Platform and Services, including all Results, will comply with all applicable laws, rules, and regulations and will not cause West itself to violate any applicable laws, rules, and regulations. Without limiting the foregoing, you acknowledge that the Results are not designed to be used as the basis for compliance with any law, rule, or regulation or any filing with any regulatory agency. You covenant and agree not to rely on any Results as the basis for any regulatory filing or approval or compliance with any law, rule, or regulation. THE PLATFORM AND SERVICES DO NOT PROVIDE LEGAL OR REGULATORY ADVICE AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR LEGAL OR REGULATORY ADVICE. ALL RESULTS ARE MADE AVAILABLE TO YOU FOR INFORMATIONAL PURPOSES OR GENERAL GUIDANCE ONLY. YOUR RELIANCE ON ANY RESULTS IS SOLELY AT YOUR OWN RISK.
13. DISCLAIMERS. Your sole and exclusive remedy for any breach of the Agreement or any failure of the Platform or Services is to discontinue using the Platform and Services, which you may do at any time. West shall not be responsible or liable for any loss or damage resulting from your use of the Platform, Services or any Results. THE PLATFORM AND SERVICES ARE PROVIDED BY WEST AND ITS LICENSORS “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS OF ANY KIND AND WEST DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND COVENANTS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE AGREEMENT AND THE PLATFORM, SERVICES, OR ANY RESULTS, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WEST OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS UNLESS CONFIRMED IN WRITING BY WEST AS AN AMENDMENT TO THE AGREEMENT.
14. LIMITATION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WEST BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, DAMAGES OR OTHER LOSSES OF ANY KIND, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR ACCESS TO, OR THE INABILITY TO USE OR ACCESS, ANY PART OF THE PLATFORM, SERVICES, OR ANY RESULTS, INCLUDING ANY LOST, CORRUPTED OR ALTERED DATA, INFORMATION, OR CONTENT, LOSS OF USE OF DATA, INFORMATION, OR CONTENT, RECOVERY OF DATA, INFORMATION, OR CONTENT, OR LOSS OR INTERRUPTION OF BUSINESS OR PROFITS, EVEN IF WEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE.
IF DESPITE THE FOREGOING, WEST IS FOUND TO HAVE LIABILITY UNDER THE AGREEMENT, IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF WEST RELATING TO THE AGREEMENT, THE PLATFORM OR ANY SERVICES OR RESULTS, EXCEED THE LESSER OF 50% OF THE ANNUAL FEES PAID FOR THE SERVICES UNDER THIS AGREEMENT IN THE YEAR IN WHICH THE LIABILITY AROSE OR $50,000.
IN STATES WHERE A LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, WEST’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH STATES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
15. FEES AND PAYMENT. You agree to pay West all fees specified in connection with each Order and any fees otherwise specified in connection with any of the Services you access through the Platform (“Fees”). All Fees will be billed as indicated in each Order. If an applicable Order does not specify any applicable billing terms, the initial payment of Fees specified under that Order for each period during this Agreement will be due and payable by you in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement. All Fees are nonrefundable once paid to West (including in the case of any nonrenewal of any subscription to the Services or termination of the Agreement). If you have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant West the right to charge the credit card or debit the bank account provided to West for all Fees incurred under this Agreement. West may change the Fees applicable to any subscription to the Services by notice to You of the change, any such change to take effect at the beginning of the next subscription period. You are responsible for all payment of, any applicable taxes, fees, value-added surcharges, import and export duties, and other assessments or duties, levied or assessed against you or West by any governmental entity in connection with your access to or use of the Platform or Services.
16. TERMINATION. The Agreement may be terminated by either party at any time, in that party’s sole discretion, upon notice to the other party. In addition, West may suspend your access to the Platform and any Services following any actual or suspected breach of the Agreement or as deemed reasonably necessary by West to prevent damage, injury, or harm to West, the Platform, or any User or other third party. Upon any termination of this Agreement: (1) all rights granted to you under the Agreement will end; (2) West may delete or deactivate your Account and cease providing you with access to the Platform and Services; (3) you will cease all use of and access to the Platform and all Services; and (4) West will be under no further obligation to retain any of Your Data and may remove and discard any of Your Data from the Platform. You agree not to attempt further use of the Platform or the Services upon termination. Upon the request of West, you will certify in writing to your compliance with the terms of this Section. The relevant portions of any Sections which by their nature survive termination of the Agreement will survive the termination of the Agreement for any reason.
17. INDEMNITY. You agree to defend, indemnify and hold harmless West, its affiliates, and each of their respective officers, directors, employees, contractors, agents, and licensors from and against any and all damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) resulting from or arising out of or on account of: (1) your use of or access to the Platform or any Services, including all Results, except due to the negligence of West; (2) any of Your Data or any access thereto or use thereof as permitted under this Agreement; (3) your breach of the Agreement; or (4) your negligent acts or omissions or your willful misconduct. West will use reasonable efforts to provide you notice of any claim for indemnification under this Section.
18. CONFIDENTIALITY. If you and West have entered into a confidential disclosure agreement applicable to your access to and use of the Platform and Services (“CDA”), the CDA is incorporated into and made a part of the Agreement. Notwithstanding and without limiting the terms of any CDA, you will not disclose any documentation or other information relating to the Platform or Services, regardless of the form thereof to any third party without West’s prior written consent. You may disclose such information only to your own employees and contractors who have a need to know the Confidential Information for purposes of your use of the Services, provided those employees and contractors are each bound by an obligation of confidentiality at least as protective of such information as the terms of the Agreement. You will treat all such information with the same degree of care as you treat your own confidential information which, in no event, will be less than reasonable care. You will not utilize such information other than as expressly permitted in this Agreement.
19. FEEDBACK. Any feedback, comments, or suggestions relating to the use, operation, performance, functionality, or features of the Platform or Services (“Feedback”) you may provide to West is entirely voluntary. West will be free to use any Feedback as we see fit for any purpose and without any notice, payment, or other obligation to you. All use of any Feedback will be at West’ sole discretion.
20. MONITORING. West reserves the right, but does not have any obligation, to monitor the Platform and Services for any purpose, including to confirm compliance with the Agreement. West also reserves the right to collect information and data regarding the use of the Platform and Services, provided such information and data does not identify you as the source of such information and data. West is the exclusive owner of any such information and data and may use and disclose such information and data for any purpose without obligation to you.
21. MODIFICATIONS. West may, in its sole discretion, modify these Terms from time to time. We will use commercially reasonable efforts to provide you with notice of any material modifications to these Terms. Notice may be provided to you directly or to all Users through the Platform. Any modification to these Terms made for legal or administrative reasons will be effective upon notice. Any modification to these Terms for any other reason will be effective 10 days following posting of the modified version of these Terms to the Platform. Your continued access to or use of the Platform and Services following Such notice constitutes your acceptance of, and agreement to modify your Agreement with West to include, any such modified Terms. Except as expressly specified herein, the Agreement may be amended or modified only by a writing signed by both parties. Notwithstanding any modification to these Terms, West may modify the functionality of the Services at any time with or without notice to you, provided that West will not materially reduce the functionality of the Services without providing you with an opportunity not to renew your subscription for such Services.
23. EQUITABLE RELIEF. You agree that due to the unique nature of the Platform and Services there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow you or third parties to unfairly compete with West resulting in irreparable harm to West, and therefore, that upon any such breach of this Agreement or threat thereof, you will not oppose any attempt by West to obtain, in addition to whatever remedies it may have at law, an injunction or other appropriate equitable relief without making any additional showing of irreparable harm.
24. FORCE MAJEURE. West will not be responsible for failure or delay in the performance of any obligation under this Agreement to the extent such failure or delay is due to acts of God or governmental authority, war, terrorism, strikes, boycotts, quarantine, pandemic, labor disputes, fire or other loss of facilities, accident, or any other event beyond its control. West will use commercially reasonable efforts to notify you of any such event.
25. EXPORT. The Platform and Services are subject to U.S. export control laws and regulations and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required.
26. CHOICE OF LAW. The Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, U.S.A., without regard to any applicable principles of conflicts of laws. Any legal action, suit, or proceeding arising out of or relating to this Agreement or the breach thereof may be instituted by either party solely in state courts located in Chester County, Pennsylvania U.S.A and the federal courts located in the Eastern District of Pennsylvania. Each party hereby submits to the personal jurisdiction of such court and waives any right each might otherwise have to claim lack of personal jurisdiction or forum non conveniens.
27. NOTICES. Unless otherwise specified in the Agreement, you will provide any notices required or allowed under the Agreement to West by postal mail to the address for West listed on the Platform. West may provide you with any notices required or allowed under this Agreement by sending you an email at any email address you provide to West in connection with your Account, provided that in the case of any notice applicable both to you and other Users of the Platform, West may instead provide such notice by posting it on the Platform. Notices provided to West will be deemed given when actually received by West. Notice provided to you will be deemed given 24 hours after posting to the Platform or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
28. GENERAL. The Agreement will exclusively govern your access to and use of the Platform and Services, and are the complete and exclusive understanding and agreement between the parties. Unless otherwise agreed in writing, the Agreement supersede any oral or written proposal, agreement or other communication between the parties, regarding your access to and use of the Platform and Services. The preprinted terms of a purchase order or any other similar document will not apply to or modify the Agreement. All waivers by West under the Agreement must be in writing or later acknowledged by West in writing. The failure of West to enforce any right or provision of the Agreement will not be deemed to be a waiver of such right or provision. If any provision of the Agreement shall be found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed removed to the extent necessary to comply with applicable Law, replaced by a provision that closely approximates the original intent and economic effect of the original to the extent consistent with applicable Law, and the remaining provision will remain in full force and effect. You may not assign or otherwise transfer the Agreement or any of your rights or obligations under the Agreement, whether by operation of law or otherwise, without obtaining prior written consent of West. Any attempted assignment or transfer in violation of the Agreement will be void and of no effect. The relationship between the parties is that of independent contractors and no agency, partnership, franchise, joint venture or employment relationship is intended or created by the Agreement. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. No term or provision of the Agreement will be construed to confer any third-party beneficiary rights on any non-party. Each and every right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between the parties or under applicable law. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.”