Terms and Conditions

These terms and conditions (hereinafter “T&C”) are legally binding agreement between Beijing SynEssen Technology Co., Ltd. (hereinafter "BST”) and you (either an individual or an entity hereinafter collectively “USER”). This T&C governs use of any BST-owned data, databases, computer programs, software, features, functions, and services related to Deep Data and Deep Services described in the Chemical Compounds Deep Data Source (hereinafter "CCDDS") related websites (http://www.imolinstincts.com.cn, http://search.imolinstincts.com.cn, http://members.imolinstincts.com.cn, and http://www.ChemRTP.com; hereinafter "CCDDSRW”), the associated online data, downloaded data from BST’s server, data carrier, information, executable object codes, video, images, any printed or electronic materials, files, and any "online", "offline" or electronic documentation (hereinafter collectively "PRODUCT") supplied by BST. The PRODUCT is copyrighted, and it is licensed to USER under this T&C. By selecting the "…Accept..." or "…Agree…" option button during access, installation, or execution of the PRODUCT, or by copying, downloading, or otherwise using the PRODUCT, USER agrees to be bound by this T&C. This T&C takes precedence over any other agreement or terms embedded within the PRODUCT. If you do not agree with any term or condition of this T&C, please do not access, download, order, open, install or use the PRODUCT.

1. 1. NATURE OF PRODUCT

   The PRODUCT to be licensed consists of (i) the data and computer files including thermo-physicochemical, thermodynamic, transport, and pharmaceutical properties, spectra data, quantum chemical data, molecular descriptor data, and chemical identifiers & basic information (hereinafter collectively "DEEP DATA" defined in http://www.imolinstincts.com.cn/chemical-compound-deep-data-list) of chemical compounds and (ii) the related services to provide the DEEP DATA and complementary data sheet of custom chemical compounds, to setup and/or install the database, software, system, and computer programs, computer code/modules to produce the DEEP DATA, and to setup and/or install search engines, user interface webpages, trademark, logo, images, and other related electronic materials and functions to provide the DEEP DATA within the intranet website of the USER (hereinafter collectively "DEEP SERVICES" defined in http://www.imolinstincts.com.cn/deep-services?lang=en). BST retains the right to block access temporarily or permanently to PRODUCT if BST, in its sole discretion, believes that the PRODUCT may be used for an improper purpose or otherwise in violation of this T&C. USER is licensed to use the PRODUCT in the regular course of USER’s internal applications, research, development, and related work.

2. 2. GRANT OF LICENSE

   1. 2.1 General.

      BST grants and USER accepts a non-exclusive, non-transferable, non-sub licensable license to use the PRODUCT during the license term: (i) for USER’s own internal research and development purposes; (ii) only on the supported computer(s), server(s) and internet protocol (IP) address range(s); (iii) in accordance with this T&C. BST specifically reserves all rights not expressly granted under this T&C. Except as otherwise provided with respect to certain PRODUCT, the license includes the right to download and temporarily store insubstantial portions of the PRODUCT to a storage device under USER’s exclusive control solely (i) to display internally such PRODUCT, (ii) to create printouts of the PRODUCT for internal use, and (iii) to use such PRODUCT for internal applications, research, development, and related work.

   2. 2.2 Restrictions.

      Without the prior written consent of BST, USER shall not: (i) Permit any other user to use the PRODUCT unless such user has been authorized by BST; (ii) Copy the PRODUCT except as provided in this T&C; (iii) Use all or any part of the PRODUCT in a private archival database or other searchable database; (iv) Use all or any part of the PRODUCT to establish any kind of information service for third parties; (v) Sublicense, redistribute, transfer, encumber, sell, rent, lease all or any part of the PRODUCT under any circumstances; (vi) Pass any part of the PRODUCT to third parties; (vii) Remove, alter, obliterate, or in any way change the form or placement of any trademark, logo, copyright or other proprietary notices; (viii) Publish any part of the DEEP DATA and DEEP SERVICES except as provided in this T&C; (ix) Use the PRODUCT to enable, support or otherwise aid the development of technology competitive with the PRODUCT or any PRODUCT embedded therein.

   3. 2.3 Publication and Citation.

      If the PRODUCT is used to obtain a private result in the course of USER’s own internal work, that result may be published in the public literature or an internet website under the conditions that (i) the contents of the publication do not include any part of data, computer files, computer programs, executable object codes, computer modules, and software originated from the DEEP DATA and DEEP SERVICES, and (ii) USER acknowledges its use of the PRODUCT in an appropriate citation. The citation should include (i) the name of the PRODUCT, (ii) the source (http://www.imolinstincts.com.cn), and (iii) the authorship as designated by Beijing SynEssen Technology Co., Ltd.

   4. 2.4 Modifications and Enhancements.

      USER shall not make any modifications or enhancements to the PRODUCT, create any derivative works of the PRODUCT, reduce the information originated from DEEP DATA and DEEP SERVICES into human readable form, or merge or separate the PRODUCT.

   5. 2.5 Prohibition against Reverse Engineering.

      LICENSEE shall not alter, decompile, disassemble, reverse engineer, and attempt to derive the source code, or emulate functionality of the PRODUCT.

3. 3. OWNERSHIP, COPYRIGHT, AND PROPRIETARY RIGHTS

   BST retains all ownership rights and the copyrights of the PRODUCT. USER acquires no rights of ownership or copyright, except the right to use the PRODUCT according to the provisions of this T&C. Further, USER recognizes and agrees that title to, ownership of, and all rights in patents, pending patent applications, trademarks, trade secrets and other intellectual property rights in the PRODUCT, do not transfer to USER and shall remain in BST and/or BST's third party vendors and licensors. USER shall not "mirror" or "frame" any material, including not limited to names, logos, and icons contained in the PRODUCT, and any use of such materials without the express written permission of BST. USER shall protect proprietary information to the same degree USER protects its own proprietary information, but with no less than a reasonable degree of care, and in any event shall not disclose it or permit access thereto to any contractor, consultant or other third party without the prior written consent of BST. During and after the term of T&C, with respect to any of the PRODUCT that USER elects to use, USER shall not assert, nor shall USER authorize, assist, or encourage any third party to assert, against BST or any of BST’s customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of BST), licensors, sub-licensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such features/services of the PRODUCT.

4. 4. CONFIDENTIALITY

   The PRODUCT is confidential Information. USER agrees not to transfer, copy, provide or otherwise make available such confidential information in any form to any third party without the prior written consent of BST. USER agrees to maintain the confidentiality of the PRODUCT with at least the same degree of care that USER uses to protect USER’s own confidential information. USER will not assign or transfer this T&C or any rights and obligations hereunder, without obtaining the prior written consent of BST, which consent may be withheld by BST in its sole discretion for any reason whatsoever.

5. 5. TERM

   The license granted under this T&C shall commence on the PRODUCT delivery date or the date that USER download, copy, or otherwise use the PRODUCT. The license expires at the end of the license term specified in a separate agreement (hereinafter "SA”) between BST and USER or after five (5) years from the date that the USER start using the PRODUCT if no such SA exist. This T&C shall continue in effect until the later of the end of the usage of the PRODUCT. Upon expiration of a license, USER's right to use the PRODUCT shall end and USER shall: (i) upon BST’s request, promptly return to BST all or part of the PRODUCT, proprietary information, and all copies thereof; (ii) erase all the PRODUCT from the memory of USER's computer(s) and storage devices or render it non-readable; and (iii) upon BST’s request, promptly certify in writing that USER has satisfied its obligations under this EULA and the SA.

6. 6. TERMINATION/CANCELLATION

   Either party may terminate or cancel this T&C and/or SA, if the other party breaches any terms or conditions of this T&C and/or SA and fails to remedy such breach within thirty (30) days after written notice of such breach. BST may immediately terminate this T&C and/or SA, if USER fails to pay any payment to BST required to be paid hereunder or participates in any unauthorized use of the PRODUCT. In the event of any termination or cancellation of this T&C and/or SA, BST may declare all amounts owed to it hereunder to be immediately due and payable.

7. 7. PAYMENT

   1. 7.1 License and Service Fees.

      License and service fees are payable by USER in advance. Except as otherwise stated in this T&C and/or SA, the invoice issued by BST shall be payable by USER in full within 15 days from the date of invoice.

   2. 7.2 Payment.

      Unless otherwise specified in this T&C or the SA, all payments shall be in U.S. Dollars. USER shall make all payments without setoff, counterclaim or other defense. Late payment charges of 1.5% per month will accrue on all amounts more than 30 days past due until payment is received in full.

   3. 7.3 Taxes.

      If USER is required to withhold tax on any amounts payable under the SA or CCDDSRW, USER shall be responsible for the payment of such tax and shall pay BST the full amount invoiced without any deduction for such withholding tax. All amounts to be invoiced under the SA or the CCDDS related websites will be exclusive of taxes or duties, and USER is responsible for any such taxes or duties that may apply, including, but not limited to, sales and use taxes, excise taxes, value added taxes, consumption taxes, or goods and services taxes. If BST is required to collect any taxes from USER, USER shall pay such invoiced taxes, and BST will remit amounts collected to the appropriate taxing jurisdiction.

   4. 7.4 Right to Assign.

      BST may assign to an assignee all BST’s rights to receive any and all payments due under the SA or the CCDDSRW. Such assignment shall not affect or release BST from its obligations and liabilities to USER. The assignee will not be chargeable with or assume any of BST’s obligations or liabilities to USER. USER shall promptly execute any ancillary documents and take further actions as BST or assignee may reasonably request relating to such assignment, including but not limited to assignment notifications and certificates of authorization. Notwithstanding any termination or cancellation under Section 6 above, USER shall, in accordance with the terms of the SA and on instruction from BST, pay the assignee any unpaid license and service fees, without deduction or offset, notwithstanding any claim or defense USER may have against BST.

   5. 7.5 Remedies.

      If USER fails to make any payment to BST or the assignee when due, and such failure continues for 60 days after the due date for such payment, then in addition to any other rights and remedies available to BST or the assignee, BST may disable further use of the PRODUCT or take other self-help measures, and all amounts owed by USER under the SA or the CCDDSRW will become immediately due and payable. In addition, BST or the assignee may recover reasonable fees and expenses incurred in exercising any of its rights and remedies upon default, including without limitation, reasonable attorneys’ fees and expenses. While BST or the assignee may attempt to notify USER of any failure to receive a payment when due, USER's failure to receive any such notice will not excuse a default or limit the remedies available to BST or the assignee as described herein.

8. 8. DISCLAIMER OF WARRANTIES

   THE PRODUCT IS PROVIDED ON AN "AS IS" BASIS. BST REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT TO GRANT THE LICENSE GRANTED HEREIN. OTHERWISE, BST MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, NON-INFRINGEMENT, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMISSIONS, COMPLETENESS, CORRECTNESS, DELAYS, AND RESULTS OBTAINED FROM USER’S USE OF THE PRODUCT. BST DOES NOT MAKE ANY WARRANTY THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE. NOR DOES BST MAKE ANY WARRANTY AS TO THE LIFE OF ANY UNIFORM RESOURCE LOCATOR (URL). USER ACKNOWLEDGES THAT PROVISION OF PRODUCT ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, DELAYS, INTERRUPTIONS AND LOSSES, INCLUDING THE INADVERTENT LOSS OF THE PRODUCT. WITHOUT LIMITATION OF THE FOREGOING, BST EXPRESSLY DOES NOT WARRANT THAT THE PRODUCT WILL MEET USER'S REQUIREMENTS. USER ASSUMES RESPONSIBILITY FOR SELECTING THE PRODUCT TO ACHIEVE USER'S INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM USER'S USE OF THE PRODUCT. USER SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE PRODUCT.

9. 9. LIMITATION OF LIABILITY

   1. 9.1 Exclusion of Damages.

      IN NO EVENT SHALL BST BE LIABLE TO USER FOR ANY DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF DATA OR INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT. BST SHALL NOT BE LIABLE FOR DAMAGES OR ANY OTHER CLAIM, WHETHER IN TORT, CONTRACT, NEGLIGENCE OR OTHERWISE.

   2. 9.2 Third Party Suppliers.

      THE PRODUCT MAY CONTAIN FUNCTIONALITY SUPPLIED BY THIRD PARTIES, INCLUDING DEVELOPERS, VENDORS, SUPPLIERS, CONTRACTORS, OR CONSULTANTS. IN NO EVENT SHALL SUCH THIRD PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES ARISING FROM THIS T&C. THIRD PARTY PRODUCT COMPONENTS IN THE PRODUCT OR OTHERWISE SUPPLIED BY BST MAY NOT BE USED INDEPENDENTLY OF THE PRODUCT.

   3. 9.3 Limitation of Liability.

      USER HEREBY ACKNOWLEDGES AND AGREES THAT BST’S AGGEGATE TOTAL LIABILITY, IN ANY EVENT, FOR ANY COST, LOSS, DAMAGES, OR OTHER POTENTICAL OR ACTUAL EXPENSES WHICH IS IN ANY WAY RELATED TO THE EXECUTION, PERFORMANCE, OR SUBECT MATTER OF THIS T&C AND/OR THE SA SHALL NOT EXCEED THE AMOUNT OF THE FEE PAID BY USER TO BST, REGARDLESS OF THE FORM OF THE ACTION EMPLOYED. USE OF ANY PRODUCT UNDER THIS T&C AND/OR THE SA SHALL NOT CREATE ANY OBLIGATION FOR BST TO CONTINUE TO DEVELOP, PRODUCTIZE, SUPPORT, REPAIR, OFFER FOR SALE OR IN ANY OTHER WAY CONTINUE TO PROVIDE OR DEVELOP PRODUCT EITHER TO USER OR TO ANY OTHER PARTY.

10. 10. GENERAL

    1. 10.1 Indemnification.

       USER agrees to indemnify and hold harmless BST from and against all damages, liabilities, attorney fees, and costs incurred by BST: (i) in defending against third party claims or threats of claims against BST arising out of USER’s use of the PRODUCT, or (ii) as a result of the breach of any USER’s obligation, covenants or representations under this T&C and/or the SA.

    2. 10.2 Audit Rights.

       USER shall provide data regarding USER’s usage of the PRODUCT upon request by BST, and/or allow BST reasonable access for the purpose of retrieving such data. Such data may be in the form of software log files or other discrete data, in electronic or hardcopy format. BST shall not disclose such information to any third party, except to enforce BST’s rights.

    3. 10.3 Refund Policy.

       The PRODUCT is provided on a non-refundable basis. This includes, but it not limited to, data fees, subscription fees, setup fees, monthly fees, upgrade fees, and professional services fees, regardless of usage. In addition, if your usage of the PRODUCT is canceled by BST for violation of this T&C and/or SA, all payments made to BST become completely non refundable. USER agrees not to charge back any payments for PRODUCT provided. In the event that USER files a charge back or other payment dispute, they will be considered to be in violation of this T&C.

    4. 10.4 Governing Law.

       The parties agree that the international arbitration rule, applicable to arbitration proceedings and the laws of the republic of Korea, without regard to principles of conflict of laws, will govern this T&C and any dispute of any sort that might arise between BST and USER. Any dispute or claim relating in any way to this T&C will be resolved by binding arbitration, rather than in court. It shall be finally settled by arbitration in accordance with the International Arbitration Rules of the Korean Commercial Arbitration Board. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the clauses of this Agreement as a court would. The arbitrator shall not award either party punitive damages and the parties shall be deemed to have waived any right to such damages. The arbitrator may award costs and expenses of the arbitration as provided in its arbitration rules, but each party shall bear its own attorney fees.

    5. 10.5 Entire T&C.

       This T&C: (i) constitutes the complete and exclusive statement of the terms and conditions between the parties with respect to the matters set forth therein; (ii) is intended by the parties as a final expression of their agreement with respect to the terms thereof; and (iii) supersedes all other agreements, purchase orders, negotiations, representations, tender documents, and proposals, written or oral. This T&C may not be amended except in a writing duly signed by an authorized representative of BST and USER.

    6. 10.6 Severability.

       If any provision of this T&C is held unenforceable or inoperative by any court of competent jurisdiction, either in whole or in part, the remaining provisions shall be given full force and effect to the extent not inconsistent with the original terms of this T&C.

    7. 10.7 Survival.

       The obligations set forth in Sections 2, 3, 4, 5, 6, 7, 8, and 9 shall survive termination or expiration of this T&C and/or the SA.

    8. 10.8 Notices.

       All notices given pursuant to this T&C shall be in writing and, if to CCDDS, delivered to Beijing SynEssen Technology Co., Ltd., Floor 4, Building No.2, Yard No.9, Yanqi West 1st Road, Yanqi Economic Development Zone, Huairou, Beijing, China., and if to the Buyer, delivered to the contact details identified on the CCDDSRW or the SA, or to such other address(es) as the party concerned shall have designated by notice hereunder.