Conditions of Use

Please review our Privacy Notice, which also governs your visit to Embryome.com, to understand our practices.

1. Use Of The ES Website

The uses covered by this Agreement include both free uses that Embryome Sciences, Inc. and its affiliates (referred to together herein as "we" or "us") make available for no fee (the "Free Uses"), and uses that we make available for a fee (the "Paid Uses"). The Free Uses and the Paid Uses are referred to collectively in this Agreement as the "Uses." Each Free Use and Paid Use is referred to individually as a "Use."

1.1. Free Uses. The Free Uses include all web uses that we make available to you free of charge on the Embryome Sciences, Inc. web site accessible from Embryome.com (collectively, the "ES Website"), except those web uses for which we specifically provide a separate user agreement. We may, in our sole discretion, begin charging fees for a Free Use, in which case such Use will thereafter be deemed a Paid Use.

1.2. Paid Uses. The Paid Uses include all web uses we make available to you for a fee on the ES Website. We may, in our sole discretion, cease charging fees for a Paid Use, in which case the Paid Use will be deemed a Free Use. We may require a separate user agreement for some or all Paid Uses in addition to this Agreement.  Paid Uses will be subject to special terms and conditions that set the price of the Paid Use subscription, the length of the subscription period, the number of authorized users, and other provisions that will apply to the use of the Paid Use.

<2.> Ownership of the Information, Content and Software

2.1. Intellectual Property Rights.  You expressly acknowledge and agree that the ES Website contains or provides links to other websites that contain information, data, text, software, photos, video, graphics, music, sounds and other material (called "Content") that are protected by copyrights, trademarks, trade secrets, patents or other proprietary rights (called "Intellectual Property Rights"), that these Intellectual Property Rights are valid and protected in all forms, media and technologies existing now or developed later, and that all right, title and interest in and to the Content, including but not limited to all Intellectual Property Rights, belong solely and exclusively to us or our licensors, and Intellectual Property Rights belonging to third parties who have made their Content accessible through the ES Website or other websites.

2.2. Feedback. In the event you elect, in connection with any of the Uses, to communicate to us suggestions for improvements to the ES Website ("Feedback"), we shall own all right, title, and interest in and to the same, even if you have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback.

3. Use of the Information and Content

3.1. Non-exclusive Personal License.  The license granted to you by this Agreement, permitting you to use the ES Website, is nonexclusive, is personal to you, is nontransferable by you, and is revocable by us. The license is determined by whether you use only the Free Uses, or whether you subscribe for one or more Paid Use. The type of license and the access authority to which it applies is described in Subsections 3.3 and 3.4.

3.2. Access. ES Website subscribers may access and use the ES Website from any computer at any location where there is an internet connection. Where multiple user access is granted under the license, multiple individuals may log into the websites simultaneously from multiple locations.

3.3. Individual Subscriptions The license granted herein is for single user access to the ES Website. One login name and password with user authority is issued for each individual subscriber's use.

3.4. Corporate, Government, and University Subscriptions The license granted herein is for multiple user access to the ES Website. A separate login name and password is issued for each person having authorization to access the ES Website on behalf of the institutional subscriber. For the purpose of this Agreement, each such authorized person is considered to be a subscriber and is bound by this Agreement.

3.5. Use of Login Names and Passwords. You may not share or permit anyone else to use your login name and password. You may not disclose your login name and password to any third party. You will be liable for all uses of the ES Website by persons or organizations who do not have our authorization to use your login name and password.

3.6. Use and Reproduction of Content. Except as you may be expressly permitted by this Agreement, you may not use, modify, adapt, reformat, download, upload, post, reproduce, broadcast, publish, display, perform, transfer or redistribute any Content in any form, format or media or by means of any technology without obtaining the prior written authorization from us and any other owner of the Intellectual Property Rights in such Content. You may, on an occasional and irregular basis, include insubstantial portions of Content from the ES Website in memoranda, reports and presentations, and then only to the extent that such use constitutes "fair use" under applicable copyright and intellectual property law, provided that in each instance you include in all such memoranda, reports and presentations all copyright, trademark and other notices that identify or attribute ownership of the Intellectual Property Rights to the Content, and the information used, original source attribution. You may not, however, post Content from the ES Website to newsgroups, mail lists, electronic bulletin boards or any other on-line destination. In addition to, and without limiting your obligations under, this Section, you agree not to otherwise reproduce, use, sell, transmit, publish, broadcast, or otherwise disseminate or distribute Content from the ES Website to anyone, including but not limited to others in the same company, government agency, school, college, or other organization, whether or not for a charge or other consideration, including but not limited to use in connection with the sale, retransmission, distribution, publication, broadcasting, circulation or other dissemination, for any purpose, whether commercial or otherwise, except as explicitly permitted under this Agreement, or pursuant to the express prior written permission of Embryome Sciences. If you wish to request permission to reproduce Content from the ES Website for other than the specifically authorized purpose, or if you have any questions about the proper way to include such notices, contact us. Please see Section 16 for information on how to contact us.

3.7. Restrictions With Respect To Use Of Names and Trademarks. Your use of any trademarks, service marks, service or trade names, logos, and other designations (hereinafter called "Marks") of ES and its affiliates, licensors and/or third parties who offer or sell products or services on the ES Website, shall strictly comply with the following provisions. We, our licensors, or any other owner of the Mark retain all right, title, and interest in and to the Marks. The following Marks belong to us: ÒEmbryome Sciences,Ó Embryomics^TM, ESpy^TM, and Escalate.^TM We may create or obtain additional Marks in the future. You may not use any Mark or other business identifier of ES or its affiliates or third parties that offer or sell products or services on the ES Website unless you obtain the prior written consent of the other owner of the Mark. Any use you make of the Marks shall inure to our benefit (or to the benefit of the owner of the Mark) and you hereby irrevocably assign to us (or to the benefit of the owner of the Mark) all right, title and interest in the same. In addition, you agree not to misrepresent or embellish the relationship between us and you, for example by implying that we support, sponsor, endorse, or contribute money to you or your business endeavors. These restrictions and prohibitions on the use of Marks applies also to all variations or misspellings of any of them.

3.8. Restriction With Respect To Domain Names. You are prohibited from using  any Mark of ES or its affiliates, including but not limited to the word ÒEmbryomeÓ in the name of a URL to the left of the top-level domain name (e.g., "embryome.com", "embryome.com", "Embryome.co.uk", etc.).

4. Restrictions On Use

4.1. Restrictions On Use. You agree to all of the following restrictions on the use of the ES Website.

4.1.1. You may not interfere or attempt to interfere in any manner with the functionality or proper working of the ES Website.

4.1.2. You may not compile, reproduce, publish, link, or otherwise make available on any other website any Content or any other information obtained through access to the ES Website, except for Content as to which you are the author and copyright owner.

4.1.3. You may not remove, obscure, or alter any notice of any Mark or other notice or indication of Intellectual Property Rights appearing on or contained within any Content accessed through the ES Website.

4.1.4. You may not upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "Junk mail," "Spam," "chain letters," "pyramid schemes," or any other form solicitation to the ES Website or to us.

4.1.5. You may not upload, post, email or otherwise transmit any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.

4.1.6. You many not use or attempt to use any "deep-link," "scraper," "robot," "bot," "spider," "data mining," "computer code" or any other automated device, program, tool, algorithm, process or methodology or manual process having similar processes or functionality, to access, acquire, copy, or monitor any portion of the Website, any data or Content found on or accessed through the ES Website, without the prior express written consent of Embryome Sciences.

4.1.7. You may not obtain or attempt to obtain through any means any Content or any other data, information, software or code available on or through the ES Website that has not been intentionally made publicly available either by public display on the ES Website or through accessibility by a visible link on the ES Website.

4.1.8. You may not violate any measure employed to limit or prevent access to the ES Website, or any feature of the ES Website, or any Content on or available through the ES Website. Without limiting the generality of the preceding sentence, you many not access, use, or make available to any third party any Content or ES Website feature that we make available as a Paid Use, except for your personal use of Content permitted under Subsection 3.6 of this Agreement.

4.1.9. You many not violate the security of the Website or attempt to gain unauthorized access to the Website, Content, or computer systems or networks connected to any service of the Website through hacking, password mining or any other means.

5. Paid Subscription Uses

5.1. Use Fees. In consideration of your use of any of the Paid Uses, you agree to pay applicable fees for Paid Uses in the amounts set forth on the respective Use detail pages on the ES Website. All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect VAT from you, including without limitation your VAT identification number. We may require a separate user agreement for some or all Paid Uses in addition to this Agreement.

6. Purchase of Products and Services

6.1. Purchasing Products and Services. We, and other vendors approved by us, may offer products and services for sale on the ES Website. All terms of sale posted on the ES Website will apply to each purchase. Terms of sale include, but are not limited to: price; method payment accepted; shipping and handling charges; sales, use and VAT taxes; product or service warranties; and exchange or return privileges. The terms of sale and any product or service warranties are set by each vendor, and may vary from vendor to vendor.

6.2. ES Not Responsible For Third Party Vendors. We shall not be responsible or liable to you in any way with respect to any purchase you may make or any other transaction you may enter into with a vendor (other us) on the ES Website. This means that we will not be responsible or liable if a vendor fails to deliver a product or fails to perform a service that you purchase, even if the vendor receives your payment for the product or service, or if the product is defective, or if the product or service provided does not conform in any way with any description of the product or service or with any representation about the product or service made by the vendor on the ES Website.  Any and all claims or disputes that you may have with respect to purchases from vendors other than us must be resolved by you with the vendor.

6.3. Disclaimer of Warranties. The disclaimers of warranties by us found in Section 12 apply to any and all products and services that you may purchase from us or any other vendor on the ES Website, except to the extent that we provide an express warranty with respect to a product sold by us (and not by a third party vendor) on the ES Website. The fact that we permit a third party vendor to offer and sell products or services on the ES Website does not constitute or imply our endorsement or validation of that vendor or of any product or service provided by that vendor. We also make no representation or warranty about any vendor that offers or sells products or services on the ES Website.

6.4. VendorÕs Right To Decline Order. We, and other vendors who offer products or services for sale on the ES Website, reserve the right to decline or reject, in whole or in part, any purchase order from any customer for any reason. We and other vendors may decline to ship products to, or to perform or provide services in, certain states or countries where the sale of the product or performance of the service is prohibited or restricted by law, where the sale would subject us or the vendor to any tax or fee, where the sale, transport, or ownership of the product or the performance of the service is subject to licensing or other requirements, or for other reasons.

7. Modifications to this Agreement

7.1. Modifications Generally. You agree that we may modify this Agreement or any policy or other terms referenced in this Agreement (collectively, "Additional Policies") at any time by posting a revised version of the Agreement or such Additional Policy on the ES Website.  The revised terms shall be effective as provided in Subsection 7.2 or 7.3, as applicable.

7.2. Modifications Effective Immediately. If the revised terms are for (a) any Paid Uses or Free Uses which we are adding, (b) any Free uses that we are removing, changing, or making a Paid Use, or (c) any other general terms and conditions applicable to user of the ES Website, then the revised terms shall be effective upon posting on the ES Website (unless we expressly state otherwise at the time of posting).

7.3. Modifications Effective Following Notice. If the revised terms remove, limit, or otherwise change the terms of any Paid Use, including but not limited to a change in subscription fees for a Paid Use, or make a Paid Use a Free Use, then the revised terms shall be effective upon the earlier to occur of (a) fifteen (15) days after posting on the ES Website, and (b) if we provide a mechanism for your immediate acceptance of the revised terms, such as a click-through confirmation or acceptance button, your acceptance.

7.4. Use After Effective Date. By continuing to use the ES Website after the effective date of any revisions to this Agreement, you agree to be bound by the revised Agreement. You agree that it is your responsibility to check the ES Website pages regularly for changes to this Agreement or the Additional Policies, as applicable. We last modified this Agreement on the date set forth at the top of this Agreement.

8. Term, Termination and Suspension

8.1. Term. The term of this Agreement ("Term") will commence, and you may begin using the ES Website, once you agree to the terms and conditions of this Agreement by clicking the "Accept" button below and complete the registration process for your embryome.com account. The Agreement will remain in effect until terminated by you or us in accordance with this Section 8.

8.2. Termination by You for Convenience. You may terminate this Agreement for any reason or no reason at all, at your convenience, by (i) providing us notice of termination in accordance with Section 16 and (ii) closing your account for any Use for which we provide an account closing mechanism.  If you subscribe to a Paid Use, you may terminate your subscription by allowing your subscription to expire without renewal.

8.3. Termination or Suspension by Us Other Than for Cause.

8.3.1. Free Uses. We may suspend your right and license to use any or all Free Uses, or, if you are only using Free Uses, terminate this Agreement in its entirety (and, accordingly, cease providing all Uses to you), for any reason or for no reason, at our discretion at any time, immediately upon notice to you in accordance with the notice provisions set forth in Section 16 below.

8.3.2. Paid Uses. We may suspend your right and license to any or all Paid Uses, or we may terminate this Agreement in its entirety (and, accordingly, cease providing all Uses to you, including Free Uses), for any reason or for no reason, at our discretion at any time by providing you sixty (60) days' advance notice in accordance with the notice provisions set forth in Section 16. 

8.4. Termination or Suspension by Us for Cause. We may suspend your right and license to any individual Use or any set of Uses, or terminate this Agreement in its entirety (and, accordingly, your right to all Uses), for any reason set forth below.  Each such reason shall constitute ÒCauseÓ for the suspension or termination of your rights and license.  The suspension or termination of your rights and license will become effective at the times stated below:

8.4.1. Immediately upon our notice to you in accordance with the notice provisions set forth in Section 16 if: (i) you attempt a denial of service attack on any the ES Website or any use of the ES Website; (ii) you seek to hack or break any security mechanism on the ES Website or we otherwise determine that your use of the ES Website or the ES Intellectual Properties poses a security or service risk to us, to any user of the ES Website, to any third party sellers on the ES Website, or to any of our or their respective customers, or may subject us or any third party to liability, damages or danger; (iii) you otherwise use the ES Website in a way that disrupts or threatens our operation of the ES Website or its use by other subscribers; (iv) we determine, in our sole discretion, there is evidence of fraud with respect to your account; (v) you use any Content  or Marks other than as expressly permitted herein; (vi) we receive notice or we otherwise determine, in our sole discretion, that you may be using the ES Website or any Content for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (vii) we determine, in our sole discretion, that our provision of any Use to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (viii) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.

8.4.2. Fifteen (15) days following our provision of notice to you in accordance with the notice provisions set forth in Section 16 if you are in default of any payment obligation with respect to any of the Paid Uses, or if payment of any check or any charges are refused or any credit card or other payment account is determined to be invalid or lacks sufficient funds to pay us any amount due, and you fail to cure such payment obligation default or correct such payment mechanism problem within such 15 day period.

8.4.3. Five (5) days following our provision of notice to you in accordance with the notice provisions set forth in Section 16 if you breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such 5 day period.

8.5. Effect of Suspension or Termination.

8.5.1. Suspension. Upon our suspension of your right and license to any Use, in whole or in part, for any reason, (i) fees will continue to accrue for any Paid Uses for which you have subscribed, notwithstanding the suspension; (ii) you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the Uses; and (iii) all of your rights and licenses with respect to the applicable Uses shall be terminated during the period of the suspension.

8.5.2. Termination. Upon termination of this Agreement for any reason: (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Paid Uses; (ii) all of your rights under this Agreement shall immediately terminate; and (iii) you shall immediately return, or if instructed by us, destroy all ES Confidential Information (as defined in Subsection 11.1) then in your possession.

8.5.3. Subscription Refunds. If we terminate your right and license to a Paid Use under Subsection 8.3.2 and you have pre-paid for the license to that Paid Use, we will refund a portion of your paid subscription equal to the subscription paid multiplied by a fraction, the numerator of which will be the number of days remaining in the subscription period and the denominator of which will be the total number of days in the subscription period for which you paid. For example, if you prepaid a subscription to a Paid Use for 180 days and we terminate your license to that Paid Use after 90 days, we will refund 50% of the amount your prepaid.  However, if we terminate your license to use a Paid Use for Cause under Subsection 3.4, you will not receive a refund of any part of your subscription.

8.6. Survival. In the event this Agreement is terminated for any reason by us or by you, or if you subscription expires, Sections 2, 11, 12, 13, and 15, and Subsection 3.7, 3.8, 4.1, 6.2, 6.3, 13.1, and 14.2 will survive any such termination.

9. Downtime and Service Suspensions; Security

9.1. Downtime and Service Suspensions. In addition to our rights to terminate or suspend uses to you as described above, you acknowledge that: (i) your access to and use of the ES Website may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the ES Website for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to or use of any portion or all of the ES Website at any time (collectively, "Service Suspensions"): (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any part or feature of the ES Website; (b) in the event of a denial of service attack or other attack on the ES Website or other event that we determine, in our sole discretion, may create a risk to the ES Website, us, to you, or to any of our other subscribers and customers if access to or use of the ES Website, or any portion or feature of the ES Website, were not suspended; or (c) in the event that we determine that any Use is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons. Without limitation to Section 12, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you email notice of any Service Suspension in accordance with the notice provisions set forth in Section 16 and to post updates on the ES Website regarding resumption of Uses following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.

9.2. Security. We strive to keep your account information and any other information that you provide us about yourself or your company secure, but we do not guarantee that we will be successful at doing so, given the nature of the Internet.

10. Payment

10.1. Payment. We may specify the manner in which you will pay any fees or the purchase price of any Paid Uses and for products that you may purchase from us on the ES Website, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. All amounts payable by you under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, you shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.

11. Confidentiality

11.1. Use and Disclosure. You shall not disclose ES Confidential Information during the Term or at any time during the three (3) year period following the end of the Term. As used in this Agreement, "ES Confidential Information" means all nonpublic information disclosed by us, our business partners or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. ES Confidential Information includes, without limitation, (i) nonpublic information relating to our or our business partners' technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including, but not limited to, any information about or involving one of our so-called beta tests or a beta test product that you obtain as a result of your participation in such beta test), (ii) third-party information that we are obligated to keep confidential, and (iii) the nature, content and existence of any discussions or negotiations between you and us. Confidential Information does not include any information described in Subsection 11.2 or any information that you are required to disclose by law.

11.2. Excluded Information. Notwithstanding any other provision in this Agreement, you shall not have any confidentiality obligation to us under Subsection 11.1 above, with respect to any information provided or made available by us hereunder, and we shall not have any confidentiality or non-use obligation to you hereunder with respect to any information, software application, data or content provided or made available by you hereunder that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the receiving party.

11.3. Conflict with Separate Non-Disclosure Agreement. If you and we are parties to a separate non-disclosure agreement ("Stand-Alone NDA") and there is a conflict between the terms of the Stand-Alone NDA and the terms of this Section 11, the terms of the Stand-Alone NDA shall control.

12. Our Representations and Warranties; Disclaimers; Limitations of Liability

12.1. Disclaimers. ES INTELLECTUAL PROPERTIES, THE MARKS, THE SERVICES, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH OR OTHERWISE MADE AVAILABLE ON THE ES WEBSITE (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS". WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS OR THE ACCURACY OR COMPLETENESS OF ANY CONTENT. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS OR CONTENT WILL BE COMPLETE, CORRECT OR ERROR FREE. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY SALE OF ANY PRODUCT OR SERVICE OR THE PAYMENT FOR ANY SERVICES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

12.2. Links. The ES Website may contain links to websites that are not under our control ("Third Party Sites"). We are not responsible for the contents or functionality of any Third Party Sites or any website that can be accessed via links on any Third Party Site. We provide these links to you as a convenience and the inclusion of any such links does not constitute or imply our endorsement or validation of any Third Party Site or of any product or service provided at or through any Third Party Site.

12.3. Limitations of Liability. NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE ES WEBSITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES;(iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY INFORMATION ABOUT YOURSELF THAT YOU PROVIDE TO US, (iv) MISTAKES, OMISSIONS, INTERRUPTIONS, COMMUNICATIONS FAILURE, DELETION OF FILES OR E-MAIL, ERRORS, OR (v) VIRUSES, TROJAN HORSES, OR SIMILAR SOFTWARE CODE THAT MAY INFECT YOUR COMPUTER OR SOFTWARE. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PAID USES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

12.4. Content May Not Express Our Views. Where we act as a compiler and distributor, rather than the author, of Content accessible through the ES Website and we cannot warrant that the information is complete, correct. or free of errors. The views, opinions, and conclusions expressed in that Content do not necessarily reflect our views, opinions, or conclusions.

13. Your Representations, Warranties, and Related Responsibilities

13.1. Authorization and Account Information. You represent and warrant that: (i) the information you provide in connection with your registration is accurate and complete; (ii) if you are registering for Paid Uses as an individual, that you are at least 18 years of age and have the legal capacity to enter into this Agreement; and (iii) if you are registering as an entity or organization, (a) you are duly authorized to do business in the country or countries where you operate, (b) the individual clicking "Accept" on this Agreement and completing the registration meets the requirements of clause (ii) above and is an authorized representative of your entity, and (c) your employees, officers, representatives and other agents accessing the ES Website are duly authorized to access the ES Website and to legally bind you to this Agreement and all transactions conducted under your account.

13.2. Changes in Your Account Information. You agree to notify us promptly of any changes in your account information, such as your address or other contact information.

13.3. Protection of Your Login Name and Password. You are responsible for all uses of the ES Website through your login name(s) and password(s), whether the use is made by you personally or by someone else. You are responsible for protecting and securing your login name(s) and password(s) from unauthorized use and disclosure. In the event that you become aware of or believe there has been a theft or unauthorized use of your login name(s) and password(s), you will notify us immediately.

13.4. Residents of the European Union and Canada. If you resided in the European Union, Canada or other jurisdiction with similar data transfer regulations, you acknowledge that by registering you will be indicating your explicit consent that the personal information you have provided may be transferred and stored in countries outside the EU, Canada or your resident jurisdiction, including the United States. Your personal information shall only be used in accordance with the terms of this Agreement and the Privacy Policy associated with the Website.

14. Indemnification

14.1. General. You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (i) your use of the ES Website or Content in a manner not authorized by this Agreement, and/or in violation of any applicable law, (ii) your violation of any term or condition of this Agreement, including without limitation, your representations and warranties, or (iii) you or your employees' or personnel's negligence or willful misconduct.

14.2. Notification. We agree to promptly notify you of any claim subject to indemnification; provided that our failure to promptly notify you shall not affect your obligations hereunder except to the extent that our failure to promptly notify you delays or prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim with counsel of your own choosing (subject to our written consent) and to settle such claim as you deem appropriate, provided that you shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.

15. US Government License Rights and Export Controls

15.1. U.S. Government License Rights. All Uses provided to the U.S. Government are provided under the commercial license rights and restrictions generally applicable under this Agreement.

15.2. Export Compliance and Restrictions. You shall, in connection with your use of the ES Website and Content, comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control.

16. Notices

16.1. To You. Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our customers generally (e.g., notices of amended Agreements, updated fees, etc.) will be posted on the ES Website. Notices made by us under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the email address provided to us in your registration for the Uses or in any updated email address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.

16.2. To Us. For notices made by you to us under this Agreement and for questions regarding this Agreement or the Uses, you may contact ES as follows:

customerservice@embryome.com

and/or

Embryome Sciences, Inc.

301 Harbor Bay Parkway

Suite 100

Alameda, California 94502

Attention:  Dr. Michael D. West

16.3. Language. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

17. Disputes

17.1. Notwithstanding anything to the contrary, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our Intellectual Property Rights or any third party's Intellectual Property Rights or any Marks. Any dispute relating in any way to your visit to the ES Website or to products or services sold or distributed by us, our affiliates, or any third party vendors in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $7,500 shall be adjudicated in any state or federal court in Alameda County, California, and you consent to exclusive jurisdiction and venue in such courts. You further acknowledge that our Intellectual Property Rights are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.

17.2. Governing Law. By using the ES Website, you agree that the laws of the State of California, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between you and us. The parties expressly exclude application of the United Nations Convention for the International Sale of Goods to this Agreement.

18. Miscellaneous Provisions

18.1. Third Party Activities. If you authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, you shall be deemed to have taken the action yourself.

18.2. Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.

18.3. Waivers. The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.

18.4. Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

18.5. Entire Agreement. This Agreement incorporates by reference all policies and guidelines posted on the ES Website, including all User Policies, and constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.

18.6. Relationship. Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between you and us (or any of our affiliates)