YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE OPENING A BETA TEST PACKAGE. OPENING A BETA TEST PACKAGE OR USING ANY PART OF THE MATERIALS CONTAINED IN THE BETA TEST PACKAGE SIGNIFIES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU SHOULD PROMPTLY RETURN THE PACKAGE UNOPENED AND UNUSED TO VENTANA.
These Terms and Conditions for Use of DISCOVERY Beta Products (“Terms and Conditions”) apply to any unreleased products (“Beta Products”) provided by Ventana Medical Systems, Inc. (“Ventana”) to recipient (“Tester”). Ventana and Tester are each sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties”.
Tester shall use Beta Products solely for the purpose of evaluating the Beta Products and providing Ventana feedback within a time frame agreed to between the Parties (“Evaluations”). Ventana may use any feedback Tester provides in connection with its Evaluations as Ventana sees fit. The Parties acknowledge the Beta Products constitute less than would reasonably be used in a period of ninety (90) days.
Tester shall maintain in confidence and shall not disclose to any third party, or use for its benefit or the benefit of any third party, without the prior written consent of Ventana, any and all information (scientific or business), data, know-how, whether written or oral, technical or non-technical, disclosed to Tester by or on behalf of Ventana, and any information about the composition or formulation of the Beta Products that is not publicly known, regardless of whether disclosed to Tester by Ventana (collectively “Confidential Information”), other than to those employees, agents or representatives with a need to know and will safeguard the Confidential Information with at least the degree of care normally afforded to their own Confidential Information but in any event not less than a reasonable degree of care.
Except as required by law or regulation, neither Party will use the name, trade or service mark or logo of the other Party or of any employee, agent or representative of the other Party in connection with any product, service, promotion, news release, report, or other publication, oral or written without the prior written approval of the Party or individual whose name is to be used. Notwithstanding the foregoing, Tester consents to disclosure of its identity in connection with any disclosure by Ventana of the value of the Beta Products to governmental authorities, as required by applicable law, including the Physician Payments Sunshine Act, as may be amended from time to time.
All Beta Products and Ventana documents, reports, protocols, data, know-how, methods, operations, designs, formulas, and other such information provided by Ventana to Tester are and will remain Ventana’s exclusive property. Tester shall not endeavor to determine the composition or formulation of the Beta Products by reverse-engineering or otherwise. No data generated using the Beta Products shall be used by Tester to support any patent applications without Ventana’s prior written consent. Tester hereby grants Ventana a non-exclusive, royalty-free, fully paid-up, transferable, perpetual, irrevocable, world-wide license (with the right to grant sub-licenses) to any intellectual property rights resulting from data generated using the Beta Products.
Tester agrees to comply with these Terms and Conditions and any requirements of the applicable laws and regulations in connection with its Evaluations.
Tester shall be an independent contractor with respect to Ventana and shall not be deemed an employee, agent or joint venturer of Ventana. Neither Party shall have any right, power or authority to create any obligation, express or implied, with respect to the other Party.
These Terms and Conditions, and all disputes and claims arising under these Terms and Conditions, will be interpreted and governed by the laws and competent courts of the State of New York. If any provision of these Terms and Conditions is or becomes invalid or unenforceable, in whole or in part, in any jurisdiction, the validity and enforceability of the other provisions of these Terms and Conditions and its validity and enforceability in any other jurisdiction shall not be affected. Any failure (in whole or in part) to exercise or delay in exercising any right, power or remedy available under these Terms and Conditions or in law will not constitute a waiver thereof.
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, ALL BETA PRODUCTS ARE PROVIDED ON AN “AS-IS” BASIS. VENTANA EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. VENTANA SHALL NOT BE LIABLE FOR ANY LOST REVENUES OR PROFITS, OR CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF ANY KIND ARISING OUT OF TESTER’S USE OF THE BETA PRODUCTS.
TESTER ACKNOWLEDGES THAT TESTER HAS READ THESE TERMS AND CONDITIONS, UNDERSTANDS THEM AND AGREES TO BE BOUND BY THEM. TESTER FURTHER AGREES THAT THESE TERMS AND CONDITIONS ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN TESTER AND VENTANA AND SUPERSEDE ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THESE TERMS AND CONDITIONS. FURTHER, NO CHANGE OR AMENDMENT TO THESE TERMS AND CONDITIONS SHALL BE EFFECTIVE UNLESS AGREED TO BY WRITTEN INSTRUMENT SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF VENTANA.