Revision Date: 3 February 2021
If you are entering into this Agreement for access to and use of the Service on behalf of or for the benefit of a legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms "User", "you" or "your" also collectively refers to such entity. User and BASF are each referred to herein as a "Party," and together are referred to herein as the "Parties."
The Parties hereby agree as follows:
- DEFINITIONS. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
1.1. "Affiliate" means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
1.2. "Applicable Law" means, with respect to any Party, any supranational, federal, state, provincial, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any supranational, international, federal, state, provincial, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such Party or any of its properties, assets, or business operations.
1.3. "Confidential Information" means: all nonpublic information revealed by or through BASF or its Affiliates to you, your Affiliates, or your personnel including, without limitation, (i) all forms and types of financial, pricing, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, algorithms, recipes, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether tangible or intangible, and whether or how stored or compiled; (ii) information traditionally recognized as proprietary trade secrets; (iii) the Services, the Platform, all Content (defined below) and all source code relating thereto; and (iv) all copies of any of the foregoing or any analyses, studies or reports that contain, are based on, or reflect any of the foregoing. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, you; (b) is documented as being known to you prior to its disclosure by BASF or its Affiliates; (c) is independently developed by you without reference or access to the Confidential Information and is so documented; or (d) is obtained by you without restrictions on use or disclosure from a third party.
1.4. "Content" means the data, information, text, graphics, images, audio recordings, video recordings, and other materials provided to you on or through the Platform and your use thereof, including, without limitation, suggested pharmaceutical product formulations and product documentation, but excluding any User Data.
1.5. "Documentation" means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Services as provided or made available by BASF to User whether in a written or electronic form.
1.6. "Effective Date" means the date on which you accept the terms and conditions set forth and incorporated within this Agreement.
1.7. "Harmful Code" means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Services, the Platform, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, "Trojan horses," "viruses," "worms," "time bombs," "time locks," "devices," "traps," "access codes," or "drop dead" or "trap door" devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Services, the Platform, or other associated software, firmware, hardware, computer system, or network to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Services, the Platform, or other associated software, firmware, hardware, computer system, or network.
1.8. "Platform" means BASF's proprietary, cloud-based, service platform, referred to as the "BASF Virtual Pharma Assistant", which includes, without limit, services relating to suggestions for pharmaceutical-product formulation(s), access to certain product documentation, and all updates and improvements thereto, additional services that may be added thereto in the future, and all Content thereon.
1.9. "Services" means our provision of access to and usage of the Platform in connection with the processing of certain User Data to provide, without limitation, services relating to suggestions for pharmaceutical-product formulation(s), access to certain product documentation, all updates and improvements thereto, additional services that may be added thereto in the future, and all Content made available thereon., in accordance with this Agreement.
1.10. "User Data" means any data that you submit to BASF or otherwise upload to the Platform, including, without limitation, business data (such as parameters pertinent to the formulation of the relevant pharmaceutical product(s)), your personal information (such as name, email address, and other identifying information), and information received from devices and business management systems connected to the Platform through your access to and use of the Services or the Platform such as your usage records and related data (but expressly excluding Content).
2. PROVISION OF SERVICES.
2.1. Services. During the Term (as defined below), we will provide the Services to you subject to the terms and conditions of this Agreement. Subject to the terms and conditions hereof, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to access and use the Platform for your internal business purposes. This license is granted solely for commercial usage to persons possessing an appropriate level of experience, background, and training to use these Services and, specifically is not granted for any personal, family or household purposes. With respect to Content, your license and right to use such Content is expressly restricted to use in connection with products distributed by BASF.
2.2. Onboarding of Users. Users have access to the Platform via their log-in and account password (collectively the User's "Log-In Credentials"). You are solely responsible for the confidentiality and use of your Log-In Credentials, and you are further responsible for the acts and omissions of any person who accesses and uses the Platform or Services using your Log-In Credentials. You will notify us immediately if you become aware of any log-in credentials becoming compromised or used by someone other than the user for whom such log-in credentials apply.
2.4. User Requirement. You must be at least 18 years of age or the minimum age to enter into a binding contract under the laws of your jurisdiction if that is older than 18 years of age,to be a User. By accessing and using the Services, you represent, warrant and guarantee to us that you are at least 18 years old or the minimum age to enter into a binding contract under the laws of your jurisdiction if that is older than 18 years of age,and will use the Platform and the Services only for commercial usages in accordance with Section 2.1 above.
2.5. Revocation of Log-In Credentials. We reserve the right to delete or change any log-in credentials, including Log-In Credentials, at any time and for any reason in our sole discretion. We will not be liable for any unauthorized use of a User's account. We have the right to revoke your registration, and/or delete your registration information and any or all User Data for any reason at any time, in its sole discretion, in accordance with Applicable Laws. Thereafter, you will no longer be able to access or use the Services.
2.7. Beta Features. From time to time, we may invite you to try "beta" features or functionalities of the Platform which are not generally available to all our users. You may accept or decline any such trial in your sole discretion. Such beta features are for evaluation purposes only and not for use, are not considered part of the Services under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise expressly agreed to by us, any beta feature trial period will expire upon the date that a version of the beta feature becomes generally available to our users for use (with or without separate cost or expense) or upon the date that we elect to discontinue such beta feature. We may discontinue beta features at any time in our sole discretion and may never make them generally available as part of the Services. We will have no liability to User or any third party for any harm or damage arising out of or in connection with any use of a beta feature, and User's use of any beta feature is at User's own risk.
2.8. Additional Services. We reserve the right to modify the Services or to offer additional or optional services through the Platform for which additional costs or fees may apply.
2.9. Hosting. During the Term, BASF, our Affiliates, or our contractors, shall host the Platform, such that the Platform is generally available for use by you. BASF, our Affiliates, and/or our contractors shall periodically monitor the Platform to optimize performance, and shall use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond our reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers.
3. USE AND LIMITATIONS OF USE.
3.1. Use. BASF or third parties granting rights to BASF hold all right, title, and interest in and to the pages and screens on this Platform and to all products, Content, Documentation, data, scripts, software, code, algorithms, and various other functionalities and applications available on, through or with reference to this Platform, which are the intellectual property of BASF or such third parties. BASF grants you a limited, personal, revocable, non-exclusive, non-assignable, non-transferable and non-sublicensable license to use and display the Services only for the intended purposes of the Services and subject to these Terms. Some of the information included as part of the Services is considered by BASF to be Confidential Information, and/or of a sensitive nature. Accordingly, except for the suggested formulation of any pharmaceutical product generated based upon the User Data input as part of User's access to and use of the Services and any regulatory documentation made available to you through your use of the Services, you will keep confidential and not disclose to any third party person or entity any of the information retrieved by you during your access to and use of the Services. Except as stated herein, and to the extent permitted by Applicable Law, you shall have no right to copy, download, display, use for competitive comparison or other unauthorized purposes, perform, reproduce, distribute, modify, edit, alter, translate, adopt or enhance any of the Services, in any manner or create any derivative works from the Services, reverse engineer or decompile any code, script, or software forming the Services. This limited license terminates automatically without notice to you if you breach any of these Terms. Upon termination, you must immediately delete and destroy any and all Content and Documentation.
3.2. Restrictions on Use. You shall not (and shall not authorize, permit, or encourage any third party to): (i) allow anyone other than you to use the Platform; (ii) share with any third party your Log-In Credential described in Section 2.2; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, algorithms, or interface protocols of the Platform; (iv) modify, adapt, or translate the Platform, the Content, the Documentation, or any portion or component thereof; (v) make any copies of the Platform, the Content, the Documentation, or any portion or component thereof; (vi) resell, distribute, or sublicense the Platform, the Content, the Documentation or any portion or component thereof, or use any of the foregoing for the benefit of anyone other than User; (vii) to "frame" or "mirror" the Platform, any Content or any of the Services contained on, framed within, or accessible from or through the Platform on any other server, Internet-based device or mobile device; (viii) save, store, or archive any Content outside of the Platform without the prior, written permission of BASF in each instance; (ix) remove or modify any proprietary markings, copyright or trademark notices, or restrictive legends placed on the Platform, the Content, or the Documentation; (x) use the Content in a way that is inconsistent with this Agreement or any express permission granted on the Platform; (xi) use the Platform, the Content, the Services or any portion or component thereof in violation of any Applicable Law, in particular labour and data protection laws, which laws might require the information, and/or the participation and/or the consent of/to your employees and/or your works council regarding the use of the Platform and its functions or use of and access to the Services; (xii) use the Platform, the Content, the Documentation, or any portion or component thereof in order to build a competitive product or service; (xiii) use the Platform for any purpose not specifically permitted in this Agreement; or (xiv) introduce, post, or upload to the Platform any Harmful Code.
3.3. Compliance. We have the right to monitor your compliance with this Section 3. If any such monitoring reveals that you are using the Platform, the Content, or any portion or component thereof in violation of this Agreement, you shall remedy any such non-compliance within five (5) business days of receiving notice from us. Failure to remedy such default shall be deemed a material breach of this Agreement by User.
3.4. Input of User Data. You acknowledge that you are responsible for any and all User Data that you submit as part of your access to and use of the Services and that you, and not BASF, will have full responsibility for each such submission of User Data, including its legality, reliability, appropriateness, originality and copyright.
3.5. User Testing Obligation. USER is responsible for undertaking its own studies and analysis of any information or suggestions provided as part of the Service, to satisfy User that such information or suggestions are appropriate for the use to which User and the entity on behalf of which User is accessing and using the Service intends to put such information or suggestions. Without limiting the scope of Section 7.2 below, BASF MAKES NO WARRANTY OR GUARANTY, EITHER EXPRESS OR IMPLIED, AS TO THE NON-INFRINGEMENT, ACCURACY OR COMPLETENESS OF THE TECHNICAL ADVICE FURNISHED, INFORMATION PROVIDED OR RECOMMENDATIONS MADE BY BASF OR ITS REPRESENTATIVES CONCERNING ANY FORMULATION, USE OR APPLICATION OF ANY PRODUCT OR OF THE RESULTS TO BE OBTAINED. WITH REGARD TO THE FORMULATION, USE OR ANY HANDLING OF ANY PRODUCT. USER AND THE ENTITY ON BEHALF OF WHICH USER IS ACCESSING AND USING THE SERVICE ASSUMES FULL RESPONSIBILITY FOR QUALITY CONTROL, TESTING AND DETERMINATION OF SUITABILITY OF SUCH INFORMATION OR PRODUCTS IDENTIFIED THEREIN FOR ITS INTENDED APPLICATION OR USE AND THE CONFIRMATION OF USER'S FREEDOM TO OPERATE SAME.
3.6. Sales Terms Not Altered. Neither BASF's General Terms and Conditions of Sale nor any other Agreements regarding the sale or purchase of any BASF product shall be amended or altered by this Platform, the Content, the Documentation, the Services or any other content, material or information on this website.
4.2. Aggregated Data. Notwithstanding anything to the contrary herein, we may use, and may permit our third-party service providers to access and use, the User Data, as well as any Usage Data (as defined below) that we may collect, in an anonymous and aggregated form ("Aggregate Data") for the purposes of operating, maintaining, managing, and improving our products and services including the Platform. Aggregate Data does not identify User or any individual. You hereby agree that we may collect, use, analyze, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data. "Usage Data" means the data that we collect in connection with our monitoring of the performance and use of the Platform by you, including, without limitation, date and time that you access the Platform, the number of times information is downloaded from the Platform, numbers of sample requests initiating through the Platform, frequency of products appearing in response to formulations, the portions of the Platform visited and Content viewed, the frequency and number of times such pages are accessed, the number of times the Platform is used in a given time period and other usage and performance data.
5. INTELLECTUAL PROPERTY; TRADEMARKS.
5.1. As between the Parties, all right, title, and interest in and to the Services, the Platform (including all Content), the Aggregate Data, and the Usage Data, including all modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto or therefrom, and all intellectual property rights therein and thereto, are and will remain the sole and exclusive property of BASF. Subject to Section 4, all right, title, and interest in and to User Data, and all intellectual property rights therein, will be and remain User's sole and exclusive property. BASF grants you a non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free right and license during the Term to use Content solely as permitted under this Agreement and for no other purpose. The foregoing license does not permit you to download Content from the Platform, store Content outside of the Platform, or copy Content for any reason beyond the rights expressly set forth within this Agreement. Such license shall automatically terminate upon the expiration or termination of this Agreement.
6. CONFIDENTIALITY; FEEDBACK.
6.1. Confidentiality. At all times you shall protect and preserve the Confidential Information as confidential, using no less care than that with which you protect and preserve your own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform your obligations and exercise your rights under this Agreement. You may disclose, distribute, or disseminate the Confidential Information to your officers, directors, members, managers, partners, employees, contractors or agents (your "Representatives"), provided that such Representatives have a need to know such Confidentiality Information, and that such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. You shall not disclose, distribute, or disseminate the Confidential Information to any third party, other than your Representatives, without our prior written consent in each instance. You shall at all times remain responsible for any violations of this Agreement by any of your Representatives. If you are legally compelled to disclose any of the Confidential Information, you shall provide us with prompt prior written notice of such requirement so that we may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or if we waive compliance with the provisions of this Section, you may furnish only that portion of the Confidential Information which is legally required to be disclosed, and will use your best efforts to ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information. Upon written request of BASF or otherwise upon termination of your utilization of the Platform or the Services, you shall promptly return to BASF or destroy under BASF's instructions (and otherwise make no further use of), all Confidential Information, including all copies and extracts and summaries of such information in any media, and shall upon request of BASF confirm such destruction in writing.
6.2. Specific Performance and Injunctive Relief. You acknowledge that in the event of a breach of Section 6.1 by you or your Representatives, substantial injury could result to BASF, and money damages will not be a sufficient remedy for such breach. Therefore, in the event that you or your Representatives engage in, or threaten to engage in any act which violates Section 6.1, we will be entitled, in addition to all other remedies which may be available to us under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of Section 6.1. We will not be required to post a bond or other security in connection with the granting of any such relief.
6.3. Feedback. During the Term, User may elect to provide us with feedback, comments, and suggestions with respect to the Services, or the Platform ("Feedback"). User agrees that BASF will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to User or any Authorized User.
7. REPRESENTATIONS AND WARRANTIES; OUR DISCLAIMER.
7.1. Representations and Warranties. Each Party represents and warrants to the other Party that: (i) to the extent it is an entity, it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby constitute a valid and binding agreement of such Party; (iii) the individual accepting this Agreement on behalf of a legal entity has the authority to bind such entity to this Agreement; and (iv) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder. In addition, you represent and warrant that you have all necessary rights to provide us with the User Data and to grant to us the licenses thereto that are granted under this Agreement.
7.2. Our Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE SERVICES, THE PLATFORM (INCLUDING ALL CONTENT), ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS AND INFORMATION PROVIDED BY BASF HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND NEITHER BASF NOR OUR SUPPLIERS OR SERVICE PROVIDERS MAKES ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND BASF HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ACCURACY, COMPLETENESS, CURRENTNESS, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT WE MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND THAT WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT FILES THAT MAY BE AVAILABLE FOR DOWNLOADING FROM THE INTERNET OR THE PLATFORM WILL BE FREE OF HARMFUL CODE. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO OUR SITE FOR ANY RECONSTRUCTION OF ANY LOST DATA.
7.3. Third Party Information. The Services may include links and references to third-party, proprietary and open-source, data, software, websites and/or web-services. By providing such links, BASF does not give its approval to nor do we endorse those websites or their contents. BASF does not accept any responsibility for the availability or the contents of such links/references or any liability for damage or injury resulting from the use of such contents, of whatever form. BASF offers no guarantee that linked data, software, and services provide information of consistent quality or availability. Links to these data, software, and services are provided as part of the Services merely for your sake of convenience. USERS ACCESS SUCH LINKED CONTENT AT THEIR OWN RISK. The Service may also include references to third-party products, which may include relevant third party trademarks, tradenames and/or service marks. Such references should not be interpreted as, nor shall they be deemed to be, any endorsement, sponsorship or other commercial relationship between such third party and BASF, beyond such relationship as BASF determines appropriate for the purpose of includings such references..
- LIMITATION OF LIABILITY. IN NO EVENT WILL BASF BE LIABLE TO YOU, YOUR AFFILIATES, YOUR REPRESENTATIVES, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER WE WERE ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. FURTHER, BASF'S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED ONE HUNDRED EUROS (100,00 €). THE FOREGOING DOES NOT AFFECT ANY LIABILITY FOR (I) DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY BASF'S NEGLIGENCE, (ii) BASF'S WILLFUL MISCONDUCT, FRAUD OR FRAUDULENT MISREPRESENTATION OR (iii) THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
9.1. Indemnification by User. You will indemnify, defend, and hold BASF, our Affiliates, our suppliers and service providers, and our and their respective Representatives harmless from and against any and all liabilities, costs, and expenses (including reasonable attorneys' fees) ("Losses") incurred by any of such parties in connection with any third-party action, claim, or proceeding (each, a "Claim") arising from your (i) breach or violation of this Agreement, including any of your representations and warranties hereunder; (ii) negligence, misconduct, or willful act or omission; and/or (iii) breach or unauthorized access to the Platform where the breach originated through your access to the Platform, including any mis-use of the Log-In Credentials.
9.2. Indemnification by BASF. BASF will indemnify, defend, and hold User and its Representatives harmless from and against any and Losses incurred by any such parties in connection with any third-party Claim (i) arising from BASF's gross negligence or willful misconduct, or (ii) alleging that the Platform or your access thereto infringes or misappropriates any third-party intellectual property rights (an "Infringement Claim"). In the event that we reasonably determine that the Platform is likely to be the subject of a third-party Claim, we will have the right (but not the obligation), at our own expense, to: (a) procure for you the right to continue to use the Platform as provided in this Agreement; (b) replace the infringing components of Platform with other components with equivalent functionality; or (c) suitably modify the Platform so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to us in our discretion on commercially reasonable terms, we may terminate this Agreement without further liability to you. Notwithstanding the foregoing, we are not obligated to indemnify, defend, or hold User or its Representatives harmless with respect to any Infringement Claim to the extent the Infringement Claim arises from or is based upon (v) any BASF product or service outside of the scope of this Agreement; (w) your use of the Platform not in accordance with the Documentation or this Agreement; (x) any unauthorized modifications, alterations, or implementations of the Platform made by or on behalf of User (other than by BASF); (y) use of the Platform in combination with unauthorized modules, apparatus, hardware, software, devices, or services not supplied or expressly permitted in writing by us; or (z) use of the Platform in a manner or for a purpose for which it was not designed. This Section 9.2 states User's sole and exclusive remedy, and our sole and exclusive liability, regarding any Infringement Claim.
9.3. Procedure. The indemnification obligations set forth in Section 9.1 and Section 9.2 are subject to the indemnified Party: (i) promptly notifying the indemnifying Party of the Claim (provided that failure to provide prompt written notice to of such Claim will not alleviate the indemnifying Party of its obligations under this Section 9 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing the indemnifying Party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and (iii) providing the indemnifying Party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying Party may not make any admission of liability on behalf of the indemnified Party without the indemnified Party's approval.
10. COMPLIANCE WITH LAWS. You acknowledge and agree that the exercise of the rights granted to User under this Agreement are subject to all Applicable Laws, enactments, regulations and other similar instruments, and User understands and agrees that it shall at all times be solely liable and responsible for such due observance and performance in exercising such rights.
10.1. Export Controls. You acknowledge and agree that, to the extent applicable, the information available on this Platform is subject to the export control and economic sanctions laws and regulations of the United States, potentially including but not limited to the Export Administration Regulations ("EAR") administered by the U.S. Commerce Department's Bureau of Industry and Security ("BIS"), and various economic sanctions regimes administered by the U.S. Treasury Department's Office of Foreign Asset Controls ("OFAC"). You agree to comply with these laws and regulations. Among other requirements of these laws and regulations, you shall not, without prior U.S. Government license or other authorization, export, re-export, transfer or sublicense any information from this Platform, as applicable, either directly or indirectly, to any country that is subject to a comprehensive U.S. trade embargo (currently Cuba, Iran, North Korea, Sudan, and Syria) or to any person or entity that is listed on the "Entity List" or "Denied Persons List" maintained by BIS or the "Specially Designated Nationals and Blocked Persons List" maintained by OFAC. You expressly affirm that you are not located in any of these countries and are not listed on any of these lists.
11. TERM AND TERMINATION.
11.1. Term. The term of this Agreement (the "Term") commences on the Effective Date and will continue in effect thereafter, on a calendar month-to-calendar month basis, until this Agreement is terminated pursuant to Sections 11.2 or 11.3 below.
11.2. Termination by BASF. We may terminate this Agreement at any time, for any reason. We will use commercially reasonable efforts to notify you of such termination, however, we shall not be liable to you or any third party we fail to do so. We may also terminate this Agreement (i) upon written notice to you if you are in material breach of this Agreement, or (ii) upon written notice to you under the limited circumstances set forth in Section 9.2.
11.3. Termination by You. You may elect to stop access and using the Platform, accessing and using the Services, or deleting your profile within the Service at any time. Our performance of the Services shall continue until we terminate this Agreement under Section 11.2 above.
11.4. Effect of Termination. Upon termination of this Agreement by BASF, (i) we will immediately stop providing the Services, and you will immediately cease all access to and use of the Platform and the Services; (ii) we will grant you access to the User Data if and to the extent required under Applicable Law provided, however, that BASF may retain archival copies of the User Data kept in the normal course of business, to comply with Applicable Law, or to exercise its rights under Section 4 hereof.
11.5. Survival. The following provisions will survive termination of this Agreement: Section 1 ("Definitions"), Section 4 ("Data"), Section 5 ("Intellectual Property"), Section 6 ("Confidentiality; Feedback"), Section 7 ("Representations and Warranties; Our Disclaimer"), Section 8 ("Limitation of Liability"), Section 9 ("Indemnification"), Section 11.4 ("Effect of Termination"), this Section 11.5 ("Survival"), and Section 12 ("General Provisions").
12. GENERAL PROVISIONS.
12.1. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that BASF may assign or otherwise transfer this Agreement without prior, such written consent: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
12.2. Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
12.3. Governing Law; Dispute Resolution. This Agreement will be governed by and construed in accordance with the substantive laws of the Federal Republic of Germany excluding (i) its provisions on the conflict of laws, (ii) the United Nations Convention on Contracts for International Sale of Goods of April 11, 1980 and (iii) the United Nations Convention on the Limitation Period in the International Sale of Goods. Any dispute arising out of or in connection with this Agreement shall be heard, at BASF's option, at the court having jurisdiction over BASF's principal, or Customer's principal, place of business, and you waive any right to object to venue in such courts on any ground.
12.4. Notices. All notices that we are required to give you under this Agreement may be given via by email to the address provided by you when you registered (or any email address you provide when you update your registration information), and will be effective as of the date we transmit such notice to that email address. All notices that you are required to give us under this Agreement must be in writing and will be delivered either personally or by e-mail, or national overnight courier. Notices delivered personally or by national overnight courier are to be delivered to the relevant BASF Group entity at the address set forth for such entity in Section 13 below. Emails to BASF are to be sent to Pharmaemail@example.com.Notices from you will be effective upon actual delivery to and receipt by us.
12.5. Independent Contractors. The Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to obligate the other Party.
12.6. Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will remain in full force and effect. Any provision of this Agreement, which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
12.7. Force Majeure. Neither Party will be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers.
12.8. Third-Party Beneficiaries. The Parties agree that there are no third-party beneficiaries under this Agreement.
12.9. Language; Complete Understanding. You acknowledge and understand that the Services, the Platform, the Content, the Documentation or any portion or component thereof will only be offered in select languages and you agree to receiving the Services (including, without limitation the Content and the Documentation) and access the Platform in such languages. This Agreement constitutes the final and complete agreement between you and BASF regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between us, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements.