Last Updated: September 26, 2023
10x Genomics, Inc. (“10x”) provides the Services to you (“Customer”) subject to the following terms and conditions (“Cloud Services Terms”). These Cloud Services Terms take effect on the date when they are accepted by Customer or Customer otherwise uses the Services (“Effective Date”).
BY CLICKING ON THE “I ACCEPT” BUTTON (OR OTHER BUTTON INDICATING ACCEPTANCE) ON AN ACCOUNT REGISTRATION FORM, REGISTERING FOR AN ACCOUNT, OR OTHERWISE ACCESSING OR USING THE SERVICES, CUSTOMER AGREES THAT CUSTOMER HAS READ AND UNDERSTOOD, AND, AS A CONDITION TO CUSTOMER’S USE OF THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THESE CLOUD SERVICES TERMS. IF CUSTOMER IS NOT ELIGIBLE OR DOES NOT AGREE TO THE CLOUD SERVICES TERMS, THEN CUSTOMER DOES NOT HAVE 10X’S PERMISSION TO USE THE SERVICES. CUSTOMER’S USE OF THE SERVICES, AND 10X’S PROVISION OF THE SERVICES TO CUSTOMER, CONSTITUTES AN AGREEMENT BY 10X AND BY CUSTOMER TO BE BOUND BY THESE CLOUD SERVICES TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15, Customer agrees that disputes arising under these Cloud Services Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE CLOUD SERVICES TERMS, CUSTOMER AND 10X ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. CUSTOMER AGREES TO GIVE UP CUSTOMER’S RIGHT TO GO TO COURT to assert or defend Customer’s rights under this contract (except for matters that may be taken to small claims court). Customer’s rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 15)
1. CERTAIN DEFINITIONS
- “10x Consumables” means 10x microfluidic cartridges and/or associated 10x-branded reagent kits, and labware, or any individual components of the foregoing, intended by 10x for use with 10x Instruments.
- “10x Instruments” means 10x-branded instruments.
- “10x Products” means 10x Instruments and 10x Consumables.
- “Additional Terms” means the additional terms and conditions set forth at /legal/legal-notices/#addendum-content (or successor URL) that are applicable to certain Cloud Services, as may be updated by 10x from time to time.
- “Cloud Services” means the software-as-a-service application(s) provided by 10x under these Cloud Services Terms.
- “Customer Data” means any data, information, or materials submitted by Customer to the Cloud Services.
- “Documentation” means the user documentation provided or made available by 10x in connection with the 10x Products or Services.
- “Results” means any results, analysis, data, or other information generated by the Cloud Services using or in connection with processing the Sequencing Data.
- “Sequencing Data” means Customer Data that is sequence information or other biological data.
- “Services” means the Cloud Services and the Software.
- “Software” means the downloadable software components provided by 10x for use in conjunction with the Cloud Services.
- “Usage Data” means any data and information related to Customer’s use of the Services.
2. ACCOUNTS AND REGISTRATION; PROHIBITED CONDUCT
- Eligibility. Customer must be at least 18 years old to use the Services. By agreeing to these Cloud Services Terms, Customer represents and warrants: (a) Customer is at least 18 years old; (b) Customer has not previously been suspended or removed from the Services; and (c) Customer’s registration and use of the Services is in compliance with any and all applicable laws and regulations. If Customer is an entity, organization, or company, the individual accepting these Cloud Services Terms on Customer’s behalf represents and warrants that they have authority to bind Customer to these Cloud Services Terms and Customer agrees to be bound by these Cloud Services Terms.
- Accounts. To access the Services, Customer may be required to register for an account. When Customer registers for an account, Customer may be required to provide 10x with information about itself, such as Customer’s email address or other contact information. Customer agrees that the information Customer provides to 10x is accurate and that Customer will keep it accurate and up-to-date at all times. Customer is solely responsible for maintaining the confidentiality of its account and password, and Customer accepts responsibility for all activities that occur under its account. If Customer believes that Customer’s account is no longer secure, then Customer must immediately notify 10x at [email protected].
- Prohibited Conduct. Customer will not: (a) provide access to usernames, passwords, or account information to any third party; (b) violate, or encourage others to violate, any right of a third party (including by act or omission); (c) interfere with the operation of the Services or any user’s enjoyment of the Services; or (d) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other account without permission.
- Cloud Services. Subject to Customer’s ongoing compliance with these Cloud Services Terms, 10x hereby grants to Customer the right to access and use the Cloud Services on a personal basis. Customer’s use of the Cloud Services is subject to any additional terms and conditions set forth in the Additional Terms.
- Software. Subject to Customer’s ongoing compliance with these Cloud Services Terms, 10x hereby grants to Customer a non-exclusive, non-sublicensable, limited license to download, install and run the Software, solely in connection with its use of the Cloud Services as set forth in these Cloud Services Terms.
- Restrictions. Customer shall not, directly or indirectly, and shall not authorize any third party to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of, reconstruct, or discover any hidden elements of the Services (except to the extent expressly permitted by applicable law); (b) translate, adapt, or modify the Services, or any portion of any of the foregoing; (c) use the Services for the purpose of developing products or services that compete with the Services; (d) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Services or any rights thereto; (e) use the Services for the benefit of, or allow access to the Services by, unauthorized persons or third parties; (f) transmit unlawful, infringing or harmful data or code to or from the Services; (g) alter or remove any trademarks or proprietary notices contained in or on the Services; (h) circumvent or otherwise interfere with any authentication or security measures of the Services, or otherwise interfere with or disrupt the integrity or performance thereof; (i) use the Services in a manner not contemplated by the Documentation, or in a manner that violates any third party rights or any applicable laws, rules or regulations, including without limitation laws and regulations governing the protection of personal health information; (j) use, or attempt to use, the Services in violation of any usage restrictions or other limitations set by 10x from time to time, including as set forth in the Additional Terms, Documentation or on the Cloud Services FAQ page located at https://www.10xgenomics.com/support/software/cloud-analysis/getting-started/CA-frequently-asked-questions (or successor URL); (k) upload Sequencing Data not generated from a 10x Product (such Sequencing Data, “Ineligible Sequencing Data”), unless the Ineligible Sequencing Data constitutes a de minimis amount of the total Sequencing Data uploaded for a particular experiment; (l) upload Sequencing Data that has been altered in such a way to hide or falsify its origin; (m) provide a fee-for-service or other non-collaborative service to third parties using the Services (e.g., wherein the service provider offers standardized services for standardized fees to multiple third parties, the customer does not contribute scientifically to the services performed, and all rights to the results and discoveries derived therefrom are transferred to the customer); (n) without 10x’s prior written consent, use Cloud Services, including any Custom Panel Design (as defined below) for any use in a product, test, service, or other activity for the diagnosis, screening, prognosis, detection, prediction, or evaluation of a disease or condition (i) that requires pre-market approval, notification, listing or clearance by the United States Food and Drug Administration (“FDA”) or similar regulatory agency in any other jurisdiction (“Regulatory Approval”); or (ii) as a laboratory developed test (as defined by the FDA) or similar laboratory-specific diagnostic ((i) and (ii) collectively, “Diagnostic Use”); nor (o) otherwise use the Services or any 10x IP (as defined below) except as expressly permitted hereunder.
- Monitoring. 10x may, but is under no obligation to, monitor Customer’s use of the Services. 10x may suspend or terminate Customer’s account and access to the Services if Customer is or 10x has a reasonable basis for alleging Customer is, in noncompliance with these Cloud Services Terms (including any failure to pay fees when due). If 10x suspends or terminates Customer’s Account, Customer acknowledges that 10x may delete any Customer Data associated with Customer’s account.
4. FEES; PAYMENT
- General. Certain features or uses of the Services (which 10x may determine in its sole discretion) may require Customer to pay fees, including usage in excess of certain thresholds (“Paid Services”). Before Customer pays any fees for Paid Services, Customer will have the opportunity to review the fees that Customer will be charged. Except as otherwise set forth in these Cloud Services Terms, all fees are in U.S. Dollars and are non-refundable.
- Pricing. Prices for the Services, including the basis on which Customer will be charged, are set forth at https://www.10xgenomics.com/support/software/cloud-analysis/miscellaneous/CA-billing
- (or successor URL) (“Pricing Page”). Notwithstanding anything to the contrary in these Cloud Services Terms, 10x reserves the right to determine pricing for the Services and 10x may prospectively change the pricing for the Services at any time (including by adding additional fees or charges), and fees and charges will be effective when updated fees and charges are posted on the Pricing Page. Customer is responsible for reviewing the Pricing Page periodically for the most current prices and fees. 10x, at its sole discretion, may make promotional offers with different features and different pricing to any of 10x’s customers. These promotional offers, unless made to Customer, will not apply to Customer or these Cloud Services Terms.
- Authorization. Customer authorizes 10x or its third party payment processors to charge all sums for the order that Customer makes and any level of Services that Customer selects, including all applicable taxes, to the payment method specified in Customer’s account. If Customer pays any fees with a credit card, 10x or its third party payment processors may seek pre-authorization of Customer’s credit card account prior to Customer’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Customer’s purchase. If 10x has agreed to invoice Customer for the applicable sums instead of charging them to directly to the payment method specified in Customer’s account, then Customer will pay all amounts invoiced within 30 days of the invoice date in accordance with the instructions set forth on the invoice.
- Delinquent Accounts. 10x may suspend or terminate access to the Services for any account for which any sums are due but unpaid. In addition to the amount due for the Service, a delinquent account may be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
5. CHANGES; DISCONTINUATION OF THE SERVICES
- Changes and Updates. 10x may make changes or updates to the Services at any time, including to reflect changes in technology, industry practices, and patterns of system use. Notwithstanding the foregoing, 10x has no obligation to provide any maintenance or support for the Services. In instances where 10x may offer support, the support will be subject to published policies.
- Discontinuation. 10x reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services or changing the form or nature of the Services), temporarily or permanently, without notice to Customer. 10x will have no liability for any change to the Services or any suspension or termination of Customer’s access to or use of the Service. Notwithstanding the foregoing, if Paid Services purchased by Customer are discontinued permanently, Customer may be entitled to a pro-rated refund representing the prepaid but unused (as of the date of termination) portion of fees that Customer paid for the Paid Services that were discontinued.
6. TERM; TERMINATION
- Term. These Cloud Services Terms will commence on the Effective Date and will continue until terminated in accordance with these Cloud Services Terms.
- Termination by 10x. If Customer violates any provision of these Cloud Services Terms, Customer’s authorization to access and use the Services and these Cloud Services Terms will automatically terminate. In addition, 10x may, at its sole discretion, terminate these Cloud Services Terms or Customer’s account on the Services, or suspend or terminate Customer’s access to the Services, at any time for any reason or no reason, with or without notice.
- Termination by Customer. Customer may terminate these Cloud Services Terms and its account at any time by contacting customer service at [email protected], provided, however, any such termination by Customer will not relieve Customer of any obligation to pay any fees payable by Customer under these Cloud Services Terms.
- Effect of Termination. Upon termination of these Cloud Services Terms: (a) Customer’s license rights will terminate and Customer must immediately cease all use of the Services; (b) Customer will no longer be authorized to access or use Customer’s account or the Services; (c) Customer must pay 10x any unpaid amount that was due prior to termination; and (d) all of Customer’s payment obligations accrued prior to termination will survive, except if 10x terminates these Cloud Services Terms for no reason and Customer has purchased Paid Services, then Customer may be entitled to a pro-rata refund representing the prepaid but unused (as of the date of termination) portion of the fees that Customer paid for the Paid Services; and (e) Sections 3.3, 4, 6.4, 7.2, 7.4, 7.5, 7.6, 7.7, 8, 9, 10, 11, 12, 13, 14, 15, and 16 will survive.
7. DATA; RESULTS; TRANSFERS
- Protective Measures. 10x will employ commercially reasonable security measures that are designed to protect Customer Data in 10x’s possession or control against unlawful or unauthorized access or disclosure; provided that Customer is solely responsible for maintaining the security and operability of its systems and devices used to access the Cloud Services and ensuring timely transmission of, and the accuracy, quality, integrity, and reliability of, all Customer Data.
- Customer Data; Usage Data. 10x may use, reproduce, make derivative works of, and distribute the Customer Data in connection with the provision of the Services. 10x may also collect and use Usage Data and any information or metadata concerning Customer Data (but not the content thereof) for various business purposes, including to improve, develop, and price 10x’s products and services and for other development, diagnostic, and corrective purposes.
- Results. Subject to these Cloud Services Terms, 10x grants to Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, fully paid-up license to download, use, and transfer (solely in accordance with and subject to this Section 7) the Results displayed to Customer through the Cloud Services.
- Customer Data Representations and Warranties. Customer represents, warrants, and covenants that (a) the Sequencing Data and any project names corresponding to the Sequencing Data or to the Results do not include any protected health information or any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular third party consumer or household, including any personal data with respect to human clinical subjects; (b) Sequencing Data does not include any Ineligible Sequencing Data, unless the Ineligible Sequencing Data constitutes a de minimis amount of the total Sequencing Data uploaded for a particular experiment; (c) Customer has the full right and authority to provide to 10x the Customer Data, and to grant 10x and other users of the Services the rights to use and distribute the Customer Data as contemplated by these Cloud Services Terms; (d) 10x’s use of the Customer Data as contemplated by these Cloud Services Terms will not: (i) breach the provisions of any applicable law, statute or regulation; or (ii) infringe or misappropriate the intellectual property or proprietary rights of any third party.
- Transfers. Certain features of the Cloud Services may enable Customer to share or transfer certain projects, data, information, or materials (including Customer Data and Results) with other users of the Cloud Services (such shared or transferred projects, data, information, or materials, “Shared Data”, and the user with whom Customer shares or transfers the Shared Data, the “Data Recipient”). By using the Services to provide any Shared Data to a Data Recipient, Customer (a) represents, warrants, and covenants that Customer has all necessary rights, consents, and approvals (including consents from human subjects) to provide the Shared Data to the Data Recipient; (b) agrees that the Data Recipient can make full use of the Shared Data and provide the Shared Data to further data recipients, including through the functionality of the Services; and (c) acknowledges and agrees that Customer may lose access to the Shared Data once such Shared Data has been transferred to a Data Recipient through the Cloud Services.
- Receipt of Data. Certain features of the Cloud Services may enable Customer to receive certain projects, data, information, or materials from other users of the Cloud Services (such projects, data, information, or materials received by Customer, “Received Data”). If Customer receives any Received Data from another user of the Cloud Services, Customer represents, warrants, and covenants that Customer has reason to believe that Customer should be receiving such Received Data and that the receipt of Received Data by Customer is proper. If Customer receives any Received Data by mistake, Customer will immediately delete such Received Data. For the avoidance of doubt, Customer will be required to pay any applicable fees in connection with the Received Data, including in connection with the storage, processing, or analysis thereof.
- No responsibility. To the fullest extent permitted by law, 10x is not responsible for any Customer Data, Shared Data or Received Data, including determining whether any sharing of Shared Data or receipt of Received Data is appropriate or proper. 10x has no obligation to back up any Customer Data, Results, Shared Data, or Received Data.
“Confidential Information” means any and all information disclosed, directly or indirectly, by 10x to Customer in connection with the Cloud Services or these Cloud Services Terms. Without limiting the foregoing, the 10x IP and the Services are the Confidential Information of 10x. Customer agrees not to: (a) use Confidential Information except to exercise its rights and perform its obligations under these Cloud Services Terms; and (b) disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party without 10x’s prior written consent. Customer shall safeguard the Confidential Information using the same measures it uses to protect its own confidential information, but in no event shall Customer use less than reasonable care in safeguarding the Confidential Information. Notwithstanding the foregoing, the foregoing restrictions on the use and disclosure of Confidential Information shall not apply to information that Customer can demonstrate is: (i) rightfully publicly available through no fault of the Customer, or (ii) rightfully obtained from third parties not under confidentiality restrictions. Further, Customer may disclose the Confidential Information to the extent it is required to be disclosed by order of a court of competent jurisdiction or other governmental entity after providing 10x written notice of its obligation.
9. PROPRIETARY RIGHTS
- Ownership. 10x owns and retains all rights, title and interest, including all intellectual property and other proprietary rights, in and to all technology, software, algorithms, methods, models, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other tangible and intangible material and information pertaining to or underlying or created or developed in connection with the Services (“10x IP”), and nothing in these Cloud Services Terms will preclude or restrict 10x from using or exploiting any concepts, ideas, models, algorithms, improvements, data, techniques or know-how of or related to the 10x IP or otherwise arising in connection with the Services.
- Feedback. If Customer provides comments, suggestions, or feedback to 10x concerning the Services or any 10x IP (“Feedback”), 10x may use, modify, and incorporate such Feedback to improve or enhance the Services or its other products and services without restriction or compensation.
- Third Party Technology. 10x may provide Customer with access to text, files, images, applications, graphics, illustrations, information, data, and other technology that are obtained or derived from third party sources outside of 10x and made available to Customer through or in conjunction with Customer’s use of the Services (“Third Party Technology”).The third party owner or provider of any such Third Party Technology retains all ownership and intellectual property rights in and to that technology, and Customer’s rights to use such Third Party Technology are subject to, and governed by, the terms applicable to such technology as specified by such third party owner or provider. Notwithstanding anything to the contrary in these Cloud Services Terms, all Third Party Technology is provided on an “as is” and “as available” basis without any warranty of any kind.
10. REGULATORY COMPLIANCE; ADDITIONAL DISCLAIMERS
- Regulatory Compliance. Customer acknowledges that the Services do not have Regulatory Approval. Accordingly, Customer acknowledges that the Services are intended FOR RESEARCH USE ONLY and NOT FOR USE IN DIAGNOSTIC PROCEDURES. The Services should be used by qualified professionals in strict accordance with applicable instructions, warnings and other information in user manuals and other Documentation. Unless otherwise expressly stated by 10x in writing, 10x makes no representations or warranties (a) as to any diagnostic or other clinical use of the Services; (b) that any Services have any Regulatory Approval for use in any diagnostic or other clinical procedure, or for any other use requiring compliance with any law, regulation or governmental policy concerning medical devices, laboratory tests or the like (collectively, “Regulatory Laws”); (iii) that any Services will satisfy the requirements of the FDA or any other regulatory agency; or (iv) that any Services or their performance is suitable or has been validated for clinical or diagnostic use, for safety and effectiveness, for any specific use or application, or for importation into Customer’s jurisdiction. Without limiting any other provision of these Terms, Customer agrees that if it elects to use Services for a purpose that would subject Customer, its customers or any Services to the application of Regulatory Laws or any other law, regulation or governmental policy, Customer shall be solely responsible for obtaining any required Regulatory Approvals and otherwise ensuring that the importation of the Services into Customer’s jurisdiction and Customer’s use of Services complies with all such laws, regulations and policies. The burden of proof for safe use and handling of Services sold to Customer is entirely the responsibility of Customer.
- ADDITIONAL DISCLAIMERS. THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES (INCLUDING RESULTS) ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. 10X DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. 10X DOES NOT WARRANT THAT THE SERVICES OR ANY PORTION OF THE SERVICES (OR CUSTOMER’S ACCESS THERETO), OR ANY DATA, MATERIALS OR CONTENT OFFERED THROUGH OR PROCESSED BY THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND 10X DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. 10X IS NOT RESPONSIBLE FOR THE FAILURE TO STORE OR MAINTAIN ANY CUSTOMER DATA, USER COMMUNICATIONS, ACCOUNT INFORMATION, OR PERSONAL SETTINGS. 10X MAKES NO WARRANTY ABOUT THE COMPLETENESS OR ACCURACY OF THE RESULTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE SERVICES OR 10X ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE 10X ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE CLOUD SERVICES TERMS. 10X IS NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICES AND CUSTOMER’S DEALING WITH ANY OTHER SERVICES USER. CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER, AND NOT 10X, SHALL BE SOLELY RESPONSIBLE FOR CUSTOMER’S USE OF THE SERVICES, INCLUDING ANY USE OF THE RESULTS OF THE SERVICES AND DECISIONS MADE OR ACTIONS TAKEN BASED ON THE SERVICES. 10X DOES NOT GUARANTEE ANY RESULTS OR SUCCESSFUL OUTCOME BASED ON USE OF THE SERVICES. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. 10X DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT 10X IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
- Indemnification By 10x. 10x may (a) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that Customer’s use (as authorized in these Cloud Services Terms) of the Services constitutes a direct infringement of any intellectual property rights of any third party (a “Claim”), and (b) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by 10x; provided that Customer provides 10x (i) prompt written notice of, (ii) sole control over the defense and settlement of, and (iii) all information and assistance reasonably requested by 10x in connection with the defense or settlement of, any such Claim. If any such Claim is brought or threatened, 10x may, at its sole option and expense: (1) procure for Customer the right to continue to use the applicable Service; (2) modify the Services to make them non-infringing; (3) replace the affected aspect of the Services with non-infringing technology having substantially similar capabilities; or (4) if none of the foregoing is commercially practicable, terminate these Cloud Services Terms. Notwithstanding the foregoing, 10x will have no liability for any Claim relating to (u) modifications to the Services not performed by 10x; (v) third-party software, products or services provided in connection with the Services but not developed by 10x; (x) use of the Services in combination with software, products or services not provided by 10x, in each case to the extent that the Services would not be infringing but for such combination or modification; (y) Customer’s failure to use the Services in accordance with these Cloud Services Terms or any Documentation; (z) Customer Data. THIS SECTION 11.1 STATES THE ENTIRE LIABILITY OF 10X, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY 10X, THE SERVICES OR OTHER 10X IP, OR ANY PART THEREOF.
- Indemnification by Customer. To the fullest extent permitted by law, Customer will (a) defend, or at its option settle, any claim brought against the 10x Entities by a third party arising out of or relating to: (i) Customer Data; (ii) any breach by Customer of these Cloud Services Terms (including any representations and warranties set forth in these Cloud Services Terms); (iii) any dispute or issue relating to the sharing or transfer of Shared Data by Customer or the receipt of Received Data by Customer; (iv) Customer’s violation of any applicable laws; and (v) Customer’s use of the Services (1) for any clinical purpose or application, including any Diagnostic Use; or (2) in the provision of services under any ‘fee for service’ agreement or other arrangement; and (b) pay all damages finally awarded against 10x (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer. 10x agrees to provide Customer with (x) prompt written notice of; (y) sole control over the defense and settlement of; and (z) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Customer will not enter into any settlements without 10x’s prior written consent. 10x may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to Customer. If Customer is a U.S. state, city, town or other municipality, or a public university, college or other not-for-profit institution chartered under the laws of a U.S. state, this section shall apply to the maximum extent permitted by applicable law. This section shall not apply if Customer is an agency of the U.S. Government; in such case, Customer’s liability shall be limited by the Federal Tort Claims Act, 28 USC 2671, et seq.
12. LIMITATION OF LIABILITY
- TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL 10X OR ITS PARTNERS, AFFILIATES, REPRESENTATIVES, OFFICERS, EMPLOYEES, CONTRACTORS, SUPPLIERS, DISTRIBUTORS, AGENTS OR LICENSORS (THE “10X ENTITIES”) BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO CUSTOMER’S ACCESS TO OR USE OF, OR CUSTOMER’S INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY 10X ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. EXCEPT AS PROVIDED IN SECTION 15.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE 10X ENTITIES TO CUSTOMER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE SUBJECT MATTER OF THESE CLOUD SERVICES TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT CUSTOMER HAS PAID TO 10X FOR ACCESS TO AND USE OF THE SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; AND (B) $500.
- EACH PROVISION OF THESE CLOUD SERVICES TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE CLOUD SERVICES TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE CLOUD SERVICES TERMS. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. CUSTOM PANEL DESIGNER
- The provisions of this Section 13 apply exclusively to the Xenium Panel Designer tool available as part of the Cloud Services, for designing custom panels of probes solely for use with 10x’s Xenium products that target genes, proteins or other polynucleotide or amino acid sequences specified by Customer (“Custom Panel Design”).
- “Custom Target Data” means the identities of custom target genes, proteins and any polynucleotide or amino acid sequences or associated single-cell or other biological data provided by Customer to 10x for Custom Panel Design. Custom Target Data are the confidential information of Customer and shall not be disclosed to any third parties unless and until such information becomes publicly available through no fault of 10x, or as otherwise required by law. By submitting Custom Target Data to 10x, Customer grants 10x the right to use Custom Target Data for Custom Panel Design on behalf of the Customer. 10x may use general or aggregated information about identities of targets selected by customers for product development and market research purposes. Customer acknowledges the Xenium Panel Designer constitutes 10x IP; however, the probe sequences generated by the Xenium Panel Designer for Customer’s custom targets constitute Results.
- Customer acknowledges that third parties may submit similar or identical target genes or sequences to 10x, and nothing in these Cloud Service Terms restricts 10x’s right to provide Custom Panel Design services, or custom panel products based on such third party designs, to such third parties.
14. MODIFICATIONS TO CLOUD SERVICES TERMS
- 10x reserves the right to update, change or otherwise modify these Cloud Services Terms on a going-forward basis at any time and in 10x’s sole discretion. If a change to these Cloud Services Terms materially modifies Customer’s rights under these Cloud Services Terms, 10x will endeavor to provide 7 days’ notice of such changes. If 10x updates these Cloud Services Terms, 10x may provide notice of such updates, such as by sending an email notification to the email address listed in Customer’s account, providing notice through the Services or updating the “Last Updated” date at the beginning of these Cloud Services Terms. Updates will be effective on the date specified in the notice. If a change to these Cloud Services Terms materially modifies Customer’s rights or obligations, 10x may require that Customer accept the modified Cloud Services Terms (e.g., by clicking “I Accept” or other similar button) in order to continue using the Services. By continuing to access or use the Services after the date specified in the notice, Customer is agreeing to accept and be bound by the updated Cloud Services Terms and all of the terms incorporated therein by reference. If Customer does not agree to the updated Cloud Services Terms, then, except as otherwise provided in Section 14.8 or if 10x provides for an opt-out mechanism, Customer may not continue to use the Services and Customer’s sole and exclusive remedy is to deactivate its account on the Services. Except as expressly permitted in this Section, these Cloud Services Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Cloud Services Terms. Disputes arising under these Cloud Services Terms will be resolved in accordance with the version of these Cloud Services Terms that was in effect at the time the dispute arose.
15. DISPUTE RESOLUTION AND ARBITRATION
- Generally. In the interest of resolving disputes between Customer and 10x in the most expedient and cost effective manner, and except as described in Section 15.2 and 15.3, Customer and 10x agree that every dispute arising in connection with these Cloud Services Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Cloud Services Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Cloud Services Terms. CUSTOMER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THESE CLOUD SERVICES TERMS, CUSTOMER AND 10X ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 14.1, nothing in these Cloud Services Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Opt-Out. If Customer does not wish to resolve disputes by binding arbitration, Customer may opt out of the provisions of this Section 14 within 30 days after the date that Customer agrees to these Cloud Services Terms by sending a letter to 10x Genomics, Inc., Attention: Legal Department – Arbitration Opt-Out, 6230 Stoneridge Mall Road, Pleasanton, CA, 94588, that specifies: Customer’s full legal name, the email address associated with Customer’s account on the Services, and a statement that Customer wishes to opt out of arbitration (“Opt-Out Notice”). Once 10x receives Customer’s Opt-Out Notice, this Section 14 will be void and any action arising out of these Cloud Services Terms will be resolved as set forth in Section 15.6. The remaining provisions of these Cloud Services Terms will not be affected by Customer’s Opt-Out Notice.
- Arbitrator. Any arbitration between Customer and 10x will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Cloud Services Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting 10x. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). 10x’s address for Notice is: 10x Genomics, Inc., 6230 Stoneridge Mall Road, Pleasanton, CA, 94588. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, Customer or 10x may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by Customer or 10x must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards Customer an amount higher than the last written settlement amount offered by 10x in settlement of the dispute prior to the award, 10x will pay to Customer the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
- Fees. If Customer commences arbitration in accordance with these Cloud Services Terms, 10x will reimburse Customer for Customer’s payment of the filing fee, unless Customer’s claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, Customer may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of Customer’s billing address. If the arbitrator finds that either the substance of Customer’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Customer agrees to reimburse 10x for all monies previously disbursed by it that are otherwise Customer’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. CUSTOMER AND 10X AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and 10x agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If 10x makes any future change to this arbitration provision, other than a change to 10x’s address for Notice of Arbitration, Customer may reject the change by sending 10x written notice within 30 days of the change to 10x’s address for Notice of Arbitration, in which case Customer’s account with 10x will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes Customer rejected will survive.
- Enforceability. If Section 14.7 or the entirety of this Section 14 is found to be unenforceable, or if 10x receives an Opt-Out Notice from Customer, then the entirety of this Section 14 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 15.6 will govern any action arising out of or related to these Cloud Services Terms.
- Notice to California Residents. If Customer is a California resident, under California Civil Code Section 1789.3, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
- Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by first class mail (registered or certified if available; air mail if overseas), postage prepaid, or otherwise delivered by hand, commercial courier service, messenger, electronically, or by telecopy, addressed to (a) the mailing address or email address on file with 10x, in the case of Customer, or if none, the 10x website; and (b) 6230 Stoneridge Mall Road, Pleasanton, CA 94588, in the case of 10x. Such notices shall be deemed to have been effective when delivered or, if delivery is not accomplished by reason of some fault or refusal of the addressee, when tendered (which tender, in the case of mail, shall be deemed to have occurred upon posting, and in the case of electronic communication or telecopy (fax), shall be deemed to have occurred upon transmission). All notices shall be in English.
- Assignment. Customer may not assign these Cloud Services Terms without 10x’s prior express written consent. 10x may assign these Cloud Services Terms freely in its sole discretion. Subject to the foregoing, these Cloud Services Terms will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
- Governing Law and Venue. These Cloud Services Terms are governed by the laws of the State of California without regard to conflict of law principles, provided that if Customer is a U.S. state, city, town or other municipality, or a public university, college or other not-for-profit institution chartered under the laws of a U.S. state, the laws of such state shall govern. Customer and 10x submit to the personal and exclusive jurisdiction of the state courts located in Alameda County, California or the U.S. District Court for the Northern District of California for resolution of any lawsuit or court proceeding permitted under these Cloud Services Terms. This section shall not apply if Customer is an agency of the U.S. Government.
- U.S. Government End Users. 10x provides the Services, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: the government hereby agrees that the Services qualify as “commercial” computer software. Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in these Cloud Services Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).
- Compliance with Laws; Export Controls. Customer at all times shall comply with all applicable federal, state, local, and foreign laws and regulations. Without limiting the foregoing, Customer agrees that it will not export or transfer the Software for re-export in violation of any United States laws or the laws of any other jurisdiction, or to any denied or prohibited person, entity, or embargoed country in violation of such laws.
- Severability. If any section, paragraph, provision or clause or any portion thereof in these Cloud Services Terms shall be found or be held to be invalid or unenforceable in any jurisdiction in which these Cloud Services Terms is being performed, the remainder of these Cloud Services Terms shall be valid and enforceable and the parties shall negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into these Cloud Services Terms.
- Force Majeure. Except for the payment of money, neither party shall be liable to the other party for any failure or delay in the performance of any of its obligations under these Cloud Services Terms for the period and to the extent such failure or delay is caused by civil unrest, threat of or actual acts of terrorism or war, embargoes, governmental actions, acts of God, earthquakes, floods, storms, fires, supplier delay, accidents, explosions, epidemics, quarantine restrictions, or other such contingencies beyond the reasonable control of the applicable party (“Force Majeure”). The party affected shall notify the other party as soon as practicable of any anticipated delay due to Force Majeure.
- No Third Party Beneficiaries. These Cloud Services Terms have been made and are made solely for the benefit of 10x and Customer and their respective permitted successors and assigns. Except as otherwise set forth in these Cloud Services Terms, nothing in these Cloud Services Terms is intended to confer any rights or remedies under or by reason of these Cloud Services Terms on any persons or entity other than the parties to these Cloud Services Terms and their respective permitted successors and assigns.
- International Use. The Services are intended for users located within the United States. 10x makes no representation that the Services are appropriate or available for use outside of the United States. Access to the Services from countries or territories or where such access is illegal is prohibited.
- Additional Terms; Entire Agreement. Use of the Services is subject to all Additional Terms. All Additional Terms and the Pricing Page are incorporated by this reference into, and made a part of, these Cloud Services Terms. In the event of a conflict between these Cloud Services Terms and the Additional Terms, the Additional Terms shall prevail with respect to the conflict. These Cloud Services Terms embody the final and complete understanding of the parties with respect to the subject matter hereof, and supersede all prior and contemporaneous understandings between them with respect to such subject matter. No terms of any purchase order, acknowledgement, email, or other form provided by Customer will modify these Cloud Services Terms, regardless of any failure of 10x to object to such terms.
- General. The parties are independent contractors, and nothing in these Cloud Services Terms is intended to or shall create any agency, partnership or joint venture relationship between them. The failure to require performance of any provision will not affect 10x’s right to require performance at any other time after that, nor will a waiver by 10x of any breach or default of these Cloud Services Terms, or any provision of these Cloud Services Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Customer agrees that any violation or threatened violation of these Cloud Services Terms would cause irreparable injury to 10x for which monetary damages would not be an inadequate remedy, entitling 10x to seek injunctive relief in addition to all legal remedies, without the posting of any bond (or any other security) or proof of actual damages. The section headings contained in these Cloud Services Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Cloud Services Terms. The English language shall govern the meaning and interpretation of these Cloud Services Terms. No oral explanation or oral information by either party hereto shall alter the meaning or interpretation of these Cloud Services Terms. 10x may use subcontractors or otherwise delegate aspects of its performance under these Cloud Services Terms, provided that 10x shall remain responsible hereunder for any such subcontractor’s performance.