Effective Date: January 9, 2015
1. Acceptance of the Terms and Conditions.
2. Use of the Website.
2.1 This Website contains material, including but not limited to software, text, graphics and images (collectively referred to as the “Content”). We may own the Content or portions of the Content may be made available to us through arrangements that we have with third parties. The Content is protected by United States and foreign intellectual property laws. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy or display the Content except as permitted under this Agreement. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your right to access and/or use the Content and Website shall automatically terminate and you shall immediately destroy any copies you have made of the Content.
2.2 The trademarks, service marks, and logos owned by Nimbus Therapeutics that are used and displayed on this Website, including, without limitation, all such marks and logos referencing Nimbus Therapeutics as well as those that refer to Nimbus Discovery are registered and unregistered trademarks or service marks of Nimbus Therapeutics. Other company, product, and service names located on the Website may be trademarks or service marks owned by third parties (the “Third-Party Trademarks”, and, collectively with the Nimbus Therapeutics Trademarks, the “Trademarks”). Nothing on this Website or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Website without the prior written consent of Nimbus Therapeutics specific for each such use. The Trademarks may not be used to disparage Nimbus Therapeutics or the applicable third party, Nimbus Therapeutics’ or the third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any website is prohibited without Nimbus Therapeutics’ prior written consent. All goodwill generated from the use of any Nimbus Therapeutics Trademark shall inure to Nimbus Therapeutics’ benefit.
2.3 You agree not to: (a) take any action that imposes an unreasonable load on the Website’s infrastructure, (b) use any device, software or routine to interfere or attempt to interfere with the proper working of the Website or any activity being conducted on the Website, (c) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Website, (d) delete or alter any material posted on the Website by Nimbus Therapeutics or any other person or entity, or (e) frame or link to any of the materials or information available on the Website.
2.4 The Website may contains links and/or references to third party websites and/or services (the “External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk.
2.5 Certain elements of the Website are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to, the use of framing or mirrors, except as otherwise expressly permitted by Section 2.1 of the Agreement. None of the Content for this Website may be retransmitted without the express written consent from Nimbus Therapeutics for each and every instance.
3. Limitation of Liability and Disclaimer of Warranties.
3.1 NIMBUS THERAPEUTICS, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE “NIMBUS THERAPEUTICS PARTIES“) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY. THE NIMBUS THERAPEUTICS PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF THE CONTENT OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE WEBSITE AND THE CONTENT AT YOUR OWN RISK. THE NIMBUS THERAPEUTICS PARTIES DO NOT WARRANT THAT THE WEBSITE WILL OPERATE ERROR FREE OR THAT THE WEBSITE, ITS SERVER, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE WEBSITE OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO NIMBUS THERAPEUTICS PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS. THE WEBSITE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE NIMBUS THERAPEUTICS PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
3.2 IN NO EVENT SHALL ANY NIMBUS THERAPEUTICS PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE WEBSITE AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH NIMBUS THERAPEUTICS PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3.3 Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, THE LIABILITY OF THE NIMBUS THERAPEUTICS PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify, and hold harmless the Nimbus Therapeutics Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your access to, use or misuse of the Content or Website. Nimbus Therapeutics will provide notice to you of any such claim, suit, or proceeding. Nimbus Therapeutics reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Nimbus Therapeutics defense of such matter.
5.1 Nimbus Therapeutics reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Website or the Content at any time and for any reason without prior notice or liability. Nimbus Therapeutics reserves the right to change, suspend, or discontinue all or any part of the Website or the Content at any time without prior notice or liability.
5.2 Sections 2 (Use of the Website), 3 (Limitation of Liability and Warranty), 4 (Indemnification), 5 (Termination of Agreement), and 8 (Miscellaneous) shall survive the termination of this Agreement.
6. User Must Comply with Applicable Laws.
6.1 We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Website or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
6.2 The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
7. U.S. Government Restricted Rights.
The Content is provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of the Website or Content by the Government constitutes acknowledgement of our proprietary rights in the Website and Content.
At the election of you or Nimbus Therapeutics, all disputes, claims, or controversies arising out of or relating to this Agreement that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before J.A.M.S. or its successor. Nimbus Therapeutics shall advance the costs of such binding arbitration, but you agree that should we prevail in the arbitration, Nimbus Therapeutics is entitled to reimbursement of all costs. Unless otherwise agreed by the parties, arbitration will be held in Boston, MA before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by J.A.M.S., and will be conducted in accordance with the rules and regulations promulgated by J.A.M.S. unless specifically modified in this Agreement. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator will have the power to order the production of documents by each party and any third-party witnesses. In addition, each party may take up to three (3) depositions as of right, and the arbitrator will not have the power to order the answering of interrogatories or the responses to requests for admission or the inspection of premises. In connection with any arbitration, each party must provide to the other, no later than ten (10) business days before the date of the arbitration, the identity of all persons that may testify at the arbitration, a copy of all documents that may be introduced at the arbitration or considered or used by a party’s witness or expert, and a summary of the expert’s opinions and the basis for said opinions. The arbitrator’s decision and award shall be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory damages set forth in the Agreement and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Agreement, and each party hereby irrevocably waives any claim to such damages. The parties covenant and agree that they will participate in the arbitration in good faith. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
This Agreement constitutes the entire agreement between you and Nimbus Therapeutics and governs your use of the Website, superseding any prior agreements between you and Nimbus Therapeutics with respect to the Website. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Nimbus Therapeutics agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS Agreement. The failure of Nimbus Therapeutics to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement shall remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Website or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Website may also provide notices to you of changes to this Agreement or other matters by displaying notices or links to notices generally on the Website.