Effective Date: June 1, 2025
THIS AGREEMENT GOVERNS YOUR (“CUSTOMER”) ORGANIZATION’S ACQUISITION AND USE OF ISOTOPES AI, INC (HEREAFTER “ISOTOPES”) SOFTWARE SERVICES LOCATED AT WWW.ISOTOPES.AI INCLUDING ANY AND ALL SUBDOMAINS.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO YOU AND/OR SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Customer may not access the Services if Customer is a direct competitor of Isotopes, except with Isotopes’s prior written consent. In addition, Customer may not access the Services for the purposes of monitoring their availability, performance or functionality.
Customer’s use of the Services constitutes Customer’s agreement to these terms. It is effective between Customer and Isotopes as of the date Customer signs or otherwise consents to a Service Order or Customer’s first use of the Services, whichever is earlier.
- SCOPE OF AGREEMENT
This Agreement sets forth the terms under which Isotopes will provide the Services to Customer. The Agreement incorporates the following components: (i) Appendix 1 – Definitions and (ii) the applicable transaction document such as a Service Order or Statement of Work (“SOW”).
- SUBSCRIPTIONS TO THE SERVICE
2.1 Subscriptions to the Services.
Subject to the terms and conditions of this Agreement and the applicable Service Order, Isotopes grants Customer and its Authorized Users a non-exclusive, non-transferable, non-sublicensable, right to access and use the Services during the Term solely for Customer’s internal business purposes. Customer may add additional Subscriptions during a Subscription Term at the same price as found in the applicable Service Order. Added Subscriptions will be co-terminated with existing subscriptions and fees for added Subscriptions pro-rated.
2.2 Usage Limits.
Subscriptions for the Services are limited to the quantities specified in the applicable Service Order. Each Subscription refers to an individual User and/or enterprise, including applicable usage limitations, as described in a Service Order. The Services may not be accessed or used in excess of the applicable entitlements reflected in a Service Order. A Subscription may be reassigned to a different User by Customer. If Customer exceeds its entitlements described in the Service Order, Customer will, upon Isotopes’ request, promptly execute a Service Order for sufficient additional entitlements to comply with the Agreement. Customer will pay Isotopes’ invoice for the excess entitlements according to the Agreement.
2.3 Beta Services.
Isotopes may invite Customer to try Services that are not generally available to customers (“Beta Services”) at no charge. Customer is under no obligation to use Beta Services. Beta Services will be clearly designated. Beta Services are: (i) for evaluation purposes only and not for production use, (ii) are not considered part of the “Services” under the Agreement, and (iii) are not supported by the terms of Appendix 1. Isotopes may discontinue Beta Services at any time. Beta Services are provided “as-is” without warranty, and notwithstanding Section 11, Isotopes will have no liability for any claim arising from Customer’s, its Affiliates’, or Users’ use of Beta Services.
2.4 AI Features.
From time to time, Isotopes may make available certain functionalities that allow Customer to utilize artificial intelligence, machine learning, or similar technologies through or in connection with the Services’ processing of Customer Data (the “AI Features”). Customer Data will not be used to train or improve Isotopes or third-party foundation models without Customer’s prior written consent. Customer or its Users may provide input, including Customer Data, for use with the AI Features (“AI Input”) and receive output generated and returned by the AI Features based on the AI Input (“AI Output”). Other customers providing similar AI Input to the Al Features may receive the same or similar AI Output. Customer acknowledges and agrees that Customer is responsible for reviewing and validating AI Output for its needs and technical environment before electing to use AI Output. Customer agrees to comply with any applicable AI Feature restrictions described in the Documentation. Disclaimer: Notwithstanding any contrary provision herein, isotopes does not represent or warrant that the AI Output will be accurate, complete, error-free, or fit for a particular purpose.
2.5 Connected Applications.
The Services contains features designed to interoperate with Connected Applications. To use such features, Customer or its Users may be required to obtain access to such Connected Applications from their providers, and grant Isotopes access to Customer’s or its Users’ account(s) on such Connected Applications. If Customer uses a Connected Application with the Services, Customer grants Isotopes permission to allow the Connected Application and its provider to access Customer Data solely as required for the interoperation of that Connected Application with the Service. Disclaimer: Isotopes provides interoperability with Connected Applications as a courtesy, on an as-is basis, and not part of the Subscription. Isotopes makes no warranty or guarantee as to the interoperability or availability of any Connected Applications and Customer’s use of any such Connected Applications is wholly at Customer’s own risk. Isotopes may terminate interoperability with Connected Applications at any time in Isotopes’ sole discretion, after providing Customer commercially reasonable notice (except in the case where the Connected Application poses a security risk to the Services). Any exchange of Customer Data between Customer and any Connected Application provider, product, or service, is solely between Customer and the applicable Connected Application provider. Isotopes does not warrant or support Connected Applications. Isotopes is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by any Connected Application or its provider.
- ISOTOPES RESPONSIBILITIES
3.1 Access to the Service.
During the Term Isotopes will: (a) make the Services available to Customer according to the Agreement and applicable Service Order(s), (b) maintain appropriate safeguards to protect the security, confidentiality and integrity of Customer Data, (c) remain responsible for the performance of Isotopes’ personnel (including Isotopes’ subcontractors) and their compliance with Isotopes’ obligations under this Agreement.
- CUSTOMER LIMITATIONS/RESPONSIBILITIES
4.1
Customer will not, and will not permit others to: (i) resell, sublicense, lease, lend, distribute, share, or otherwise make the Services available to any unauthorized party; (ii) modify, adapt, translate, copy, merge, create derivative works from, or use the Services with unauthorized hardware or software; (iii) reverse-engineer, decompile, disassemble, or attempt to derive the Service’s source code (except as expressly permitted by law, and then only to the extent required); (iv) access the Services to build a competing product or to copy any features, functions, or design elements; (v) share user credentials; (vi) use the Services for unlawful purposes or to store or transmit unlawful or malicious content (including viruses or harmful code); (vii) interfere with the Service’s performance or integrity; (viii) remove or obscure any proprietary rights notices; (ix) bypass any access control or security measures; (x) use the Services in violation of the Documentation; (xi) benchmark or test the Services or its infrastructure without Isotopes’ prior written consent.
Isotopes may suspend access to the Services if required by law, if Customer or any User violates the Agreement, or if such use interferes with the Service’s integrity or others’ use. Isotopes will use reasonable efforts to notify Customer before suspension (unless legally prohibited) and will restore access once the issue is resolved. If Customer Data violates law or third-party rights, Isotopes may notify Customer, who must promptly remove the content; if Customer does not act, Isotopes may disable the affected data until resolved.
4.2 Customer Responsibilities.
Customer will: (i) will promptly notify Isotopes of any unauthorized access to the Services arising from a compromise or misuse of Customer’s or its User’s access credentials, (ii) use the Services only in accordance with the Documentation, Isotopes written instructions, applicable laws, and government regulations, (iii) comply with terms of service of any Connected Applications Customer uses in conjunction with the Services, and (iv) remain responsible for any action or omission in violation of the Agreement by Customer’s Affiliates or Users.
- DATA RESPONSIBILITIES
5.1 Compliance With Applicable Laws.
Customer is exclusively responsible for: (i) determining what data Customer submits to the Services, (ii) obtaining all necessary consent and permissions for submission of Customer Data and related data processing instructions to Isotopes, (iii) the accuracy, quality and legality of Customer Data, and (iv) Customer’s compliance with applicable data privacy and protection regulations. Customer shall ensure that it is entitled to transfer the relevant Customer Data to Isotopes so that Isotopes and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf. No rights to the Customer Data are granted to Isotopes hereunder other than as expressly set forth in this Agreement.
5.2 Excluded Data.
Customer shall not provide Isotopes with any Customer Data that is subject to heightened security requirements by law, regulation or contract (examples include but are not limited to the Gramm–Leach–Bliley Act (GLBA), Health Insurance and Portability and Accountability Act (HIPAA), Family Educational Rights and Privacy Act (FERPA), the Child’s Online Privacy Protection Act (COPPA), the standards promulgated by the PCI Security Standards Council (PCI-DSS), and their international equivalents (such Customer Data collectively, “Excluded Data”). Isotopes shall have no responsibility or liability for Excluded Data.
- INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
6.1 Reservations of Rights.
Access to the Services is sold on a subscription basis. Except for the limited rights expressly granted to Customer hereunder, Isotopes reserves all rights, title, and interest in and to the Services, the underlying software, the Isotopes Materials and any and all improvements (including any arising from Customer’s feedback), modifications and updates thereto, including without limitation all related intellectual property rights inherent therein. Where Customer purchases Professional Services hereunder, Isotopes grants to Customer a non-sublicensable, non-exclusive license to use any materials provided by Isotopes as a result of the Professional Services (the “Isotopes Materials”) solely in conjunction with Customer’s authorized use of the Services and in accordance with this Agreement. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement. Except for any obligations with respect to the Confidentiality of Customer Information in Section 8, nothing in this Agreement will impair Isotopes’ right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any products, software or technologies that Customer may develop, produce, market, or distribute.
6.2 Ownership and Processing of Customer Data.
Customer and its licensors shall retain all right, title, and interest in and to all Customer Data stored or processed in connection with the Services, including any modifications, updates, or derivative works thereof. Subject to the terms of this Agreement, Customer grants Isotopes a nonexclusive, worldwide, royalty-free, limited license to host, use, reproduce, display, perform, adapt, modify, transmit, and distribute Customer Data solely as necessary to: (i) provide the Services and any Professional Services under this Agreement; (ii) maintain, support, and improve the Services (including resolving technical issues or support requests); (iii) facilitate integrations or instructions expressly initiated by Customer, including with Customer’s Connected Applications; and (iv) comply with applicable law or lawful governmental requests.
6.3 Use of Aggregate Information.
Isotopes may collect, generate, and use data derived from Customer’s use of the Services that has been anonymized and aggregated so that it does not identify Customer or any Authorized User (“Aggregated Data”). Aggregated Data may be used by Isotopes for its legitimate business purposes such as operating, analyzing, and improving the Services, developing new products or services, and benchmarking. Isotopes shall ensure that Aggregated Data: (i) does not contain Customer Data or Customer Confidential Information in any identifiable form, and (ii) cannot reasonably be used to re-identify any individual or Customer. Aggregated Data is the property of Isotopes.
6.4 Ownership of Deliverables.
Isotopes owns all rights, title, and interest in and to the intellectual property rights of deliverables or work product resulting from any of the Professional Services (“Deliverables”), and grants to Customer a non-exclusive, worldwide right and license to use such Deliverables in connection with Customer’s permitted use of the Service.
6.5 Feedback.
Customer grants Isotopes a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, and fully paid-up license to use, copy, modify, and incorporate into the Services or Professional Services any suggestions, feedback, enhancement requests, or other information provided by Customer or its Users relating to the features, functionality, or performance of the Services (“Feedback”). Feedback excludes Customer Data. Isotopes shall have no obligation to treat Feedback as confidential or to compensate Customer or its Users for its use.
- PAYMENT; TAXES
7.1 Fees/Payment.
Customer shall pay all fees specified in each Service Order in the currency indicated therein, regardless of actual usage. All fees are non-cancelable and non-refundable, except as expressly provided in this Agreement. Unless otherwise stated in the Service Order, fees are due in full, in advance, within thirty (30) days of the invoice date. Isotopes may, but is not obligated to, allow Customer to pay by credit card in monthly installments. If Isotopes allows Customer to pay Fees by credit card, Customer authorizes Isotopes (or its third-party payment processor) to charge the credit card provided by Customer for all Fees when due under this applicable Service Order and the Agreement. Customer agrees to keep valid, up-to-date credit card information on file with Isotopes at all times during the Subscription Term. Any disputed charges must be reported in writing within fifteen (15) days of the charge date. Customer may not reduce the quantity of Subscriptions or entitlements during the applicable Subscription Term. If any undisputed amount remains unpaid more than ten (10) days after the due date, Isotopes may, upon at least five (5) days’ prior written notice, suspend the Services until the overdue amount is paid in full. Late payments may accrue interest at a rate of 1.5% per month (or the maximum rate permitted by law, if lower) on the outstanding balance.
7.2 Taxes.
All fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including sales, use, value-added, excise, or withholding taxes (collectively, “Taxes”). Customer is responsible for all Taxes associated with its purchases under this Agreement, excluding any taxes based solely on Isotopes’ net income. Isotopes may determine and invoice applicable Taxes based on Customer’s billing address, shipping address, or other relevant location information, and may include such Taxes on the same invoice as the associated fees or on a separate invoice, in accordance with applicable law. If Customer is exempt from any Taxes, it must provide Isotopes with a valid tax exemption certificate or other legally sufficient proof of exemption. Customer will be liable for any Taxes, penalties, or interest arising from inaccurate or incomplete information provided by Customer. If any Taxes are required to be withheld from amounts payable to Isotopes, Customer shall increase the payment such that Isotopes receives the full amount it would have received had no withholding been required.
- CONFIDENTIAL INFORMATION
8.1 Confidentiality.
“Confidential Information” means any non-public information and materials disclosed by one party (“Discloser”) to the other party (“Recipient”) that are (i) marked as confidential at the time of disclosure, or (ii) disclosed in circumstances where a reasonable person would understand the information to be confidential. Confidential Information includes, without limitation, the terms of this Agreement, a party’s pricing, product roadmaps and development plans, strategic marketing plans, algorithms, business strategies, customer and prospect lists, design documentation, drawings, engineering information, financial data, forecasts, formulas, hardware configurations, know-how, inventions, market data, processes, products, research, specifications, software (including source code), trade secrets, and any other proprietary or sensitive information relating to the Services, including the Documentation, whether or not marked as confidential. Recipient may disclose Confidential Information only to its Affiliates, employees, officers, directors, advisors, and contractors (collectively, “Representatives”) who have a legitimate need to know such information and who are bound by confidentiality obligations at least as protective as those set forth herein. Recipient shall remain responsible for any breach of this Agreement by its Representatives.
8.2 Exclusions.
“Confidential Information” does not include information that: (i) was known to the Recipient without restriction prior to disclosure by the Discloser; (ii) is or becomes publicly available through no breach of this Agreement by the Recipient or its Representatives; (iii) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information; (iv) is lawfully received by the Recipient from a third party without restriction and without breach of any obligation of confidentiality; (v) is approved for release by the Discloser in writing; or (vi) is generally made available by the Discloser to third parties without a duty of confidentiality. The Recipient shall have the burden of proving that any of the foregoing exceptions apply.
8.3 Duties Regarding Confidential Information.
At all times during and after the term of this Agreement, the Recipient shall (i) protect the Discloser’s Confidential Information using the same degree of care it uses to protect its own confidential information of like kind, but in no event less than reasonable care; (ii) not disclose the Discloser’s Confidential Information to any third party except as expressly permitted under this Agreement or with the Discloser’s prior written consent; and (iii) use the Confidential Information solely as necessary to perform its obligations or exercise its rights under this Agreement. If the Recipient is required by law, regulation, or court order to disclose any of the Discloser’s Confidential Information, such disclosure will not constitute a breach of this Agreement, provided that (iv) the Recipient gives the Discloser prompt written notice (to the extent legally permitted) so the Discloser may seek a protective order or other appropriate remedy, and (v) the Recipient discloses only the portion of Confidential Information that it is legally required to disclose. This confidentiality terms found in the Agreement supersede any prior nondisclosure or confidentiality agreement between the parties with respect to the subject matter hereof, and such agreement shall have no further force or effect.
8.4 Unauthorized Disclosures.
The parties agree that any actual or threatened unauthorized use or disclosure of Confidential Information by the Recipient may cause irreparable harm to the Discloser for which monetary damages would be an inadequate remedy. Accordingly, the Discloser shall be entitled to seek immediate injunctive relief, without the requirement to post bond or other security, to prevent or restrain any such actual or threatened breach. Such injunctive relief shall be in addition to, and not in lieu of, any other remedies available to the Discloser at law or in equity.
- WARRANTIES AND DISCLAIMER
9.1 General Representations and Warranties.
Each party represents and warrants that it has the power and authority to enter into this Agreement and the performance by such party of its obligations and duties hereunder will not violate any agreement to which such party is bound.
9.2 Isotopes Warranties.
Isotopes represents and warrants that: (i) if it provides Professional Services, it will use reasonable skill and care consistent with industry standards; (ii) the Services are designed to perform materially in accordance with the Documentation under normal use and circumstances; and (iii) it has implemented commercially reasonable safeguards intended to detect and reduce the risk that the Services contain or transmit malicious code intended to damage or corrupt Customer’s Data or systems.
9.3 Customer Warranties.
Customer represents and warrants that: (i) it has the full power, authority, and legal right to enter into and perform its obligations under this Agreement; (ii) its use of the Services, including the submission and use of Customer Data, will comply with all applicable laws and regulations, including those relating to data privacy, intellectual property, and export control; (iii) it has obtained and will maintain all necessary rights, licenses, and consents to provide Customer Data to Isotopes for use as contemplated in this Agreement; (iv) it will not upload, transmit, or otherwise provide any content or data that is unlawful, infringing, or contains any viruses, malicious code, or other harmful components; and (v) it will ensure that only its authorized personnel access and use the Services and that all such use will be in accordance with this Agreement.
9.4 Warranty Claims.
Except for the Customer’s right to terminate in accordance with Section 12.3, Isotopes’ sole responsibility and Customer’s exclusive remedy in the event of any material failure of the warranties expressly stated in Section 9, shall be that Isotopes shall make commercially reasonable efforts to remedy any resulting deficiencies.
9.5 Disclaimer of Warranty.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES, PROFESSIONAL SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT OTHER WARRANTY OF ANY KIND, AND ISOTOPES MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES AND PROFESSIONAL SERVICES. ISOTOPES SPECIFICALLY AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHER, ISOTOPES DOES NOT WARRANT THE SERVICES WILL BE ERROR-FREE OR THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED. THE SERVICES AND MATERIALS ARE NOT DESIGNED, INTENDED OR WARRANTED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS.
- INDEMNIFICATION
10.1 Indemnification by Isotopes.
If a third party asserts or threatens a claim that Customer’s use of the Services directly infringes the third party’s patent, copyright, or trademark (a “Claim”), Isotopes will, at its expense: (a) assume the defense of the Claim, and (b) pay any damages, costs, and reasonable attorneys’ fees awarded in a final, non-appealable judgment or agreed to in a settlement approved by Isotopes, to the extent attributable to Customer’s use of the Services. Isotopes’ obligations are subject to Customer: (i) being current on all applicable fees (or becoming current prior to requesting indemnification); (ii) providing written notice of the Claim to Isotopes promptly, and in any event within fifteen (15) days of becoming aware of it; (iii) granting Isotopes sole control of the defense and settlement of the Claim, provided that Customer may approve any settlement that imposes a payment obligation or admission of liability on Customer; and (iv) providing reasonable cooperation in the defense.
10.2 Other Resolution.
If the Services becomes the subject of any actual or anticipated third party infringement claim, Isotopes may, at its sole option and expense, either: (i) procure for Customer the right to continue using the affected Services consistent with this Agreement, (ii) replace or modify the affected Services with a functionally equivalent service that does not infringe, or, (iii) if neither (i) nor (ii) is available on a commercially-feasible basis, terminate the Agreement and applicable Service Order and refund the pro rata amount of any prepaid fees for all unused portions of the then-current Subscription Term calculated as of the date of termination.
10.3 Exclusions.
Isotopes will have no obligation or liability under this Agreement for any Claim to the extent it arises from: (i) Customer’s use of the Services in combination with any third-party products, services, hardware, data, or software (including Connected Applications) not provided by Isotopes; (ii) use of the Services in a manner not authorized by this Agreement or the applicable Service Order; (iii) compliance by Isotopes with Customer’s specifications, designs, or instructions where the alleged infringement would not have occurred but for such compliance; or (iv) continued use of the Services after Isotopes has notified Customer to cease such use in order to avoid further infringement. This Section states Isotopes’ sole and exclusive liability, and Customer’s sole and exclusive remedy, with respect to any claims of intellectual property infringement or misappropriation arising from use of the Services.
10.4 Indemnification By Customer.
If a third party asserts or threatens a claim against Isotopes arising solely from Isotopes’ processing of Customer Data uploaded to the Services by Customer or its Users, or from Customer’s or a User’s breach of Sections 4, 5, or 9 of this Agreement, then Customer will: (i) assume the defense of the claim at its own expense, and (ii) indemnify and hold harmless Isotopes from and against any damages, costs, and reasonable attorneys’ fees, to the extent attributable to Isotopes’ operation of the Services in accordance with this Agreement. Isotopes’ right to indemnification is conditioned on: (iii) Isotopes providing prompt written notice of the claim to Customer (and in any event within a reasonable period after becoming aware of it); (iv) Isotopes granting Customer sole control over the defense and settlement of the claim, provided that Isotopes may approve any settlement that requires payment by Isotopes or includes an admission of liability; and (v) Isotopes providing reasonable cooperation in the defense at Customer’s expense.
- LIMITATION OF LIABILITY AND DISCLAIMER OF DAMAGES.
11.1 DISCLAIMER OF INDIRECT DAMAGES.
IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR THEIR LICENSORS BE LIABLE UNDER ANY LEGAL THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF REVENUE, GOODWILL, PRODUCTION, OR ANTICIPATED SAVINGS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT (INCLUDING ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE SOLUTION), WHETHER ALLEGED AS A BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 LIMITATION OF LIABILITY.
EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY’S (OR ITS AFFILIATES’) AGGREGATE AND CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE WILL EXCEED THE AMOUNTS PAID OR OWED TO ISOTOPES BY CUSTOMER IN THE AGGREGATE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE CAUSED BY NEGLIGENCE OR FOR FRAUD, OR THAT CANNOT BE LIMITED AS A MATTER OF LAW. NOTHING IN THIS SECTION WILL LIMIT THE FEES OWED BY CUSTOMER UNDER THIS AGREEMENT FOR THE SERVICES OR PROFESSIONAL SERVICES. THE PARTIES ACKNOWLEDGE THAT THE FEES PAID PURSUANT TO THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT, AND THAT ISOTOPES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
- TERM AND TERMINATION
12.1 Subscription Term.
The Subscription Term begins on the Subscription Start Date and remains in effect for the Subscription Term as specified on the applicable Service Order. At the end of the Subscription Term, the Subscription will automatically renew for additional Subscription Terms equal to the expiring Subscription Term, unless either party notifies the other of its intent not to renew such Subscription at least sixty (60) days before the expiration of the then-current Subscription Term. Non-renewal notice must be provided by email to support@isotopes.ai or to the notice address specified in Section 14.
12.2 Effective Date and Term.
This Agreement commences on the Effective Date and shall remain in effect until terminated by either Party in accordance with the terms of the Agreement (the “Term”).
12.3 Termination.
If either party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach, the non-breaching party may terminate this Agreement and/or any affected Service Order(s) upon written notice to the breaching party. Either party may also terminate this Agreement immediately upon written notice if the other party: (i) ceases to do business in the ordinary course, (ii) becomes the subject of a voluntary or involuntary bankruptcy or other insolvency proceeding and such proceeding is not dismissed within sixty (60) days, (iii) is placed under the control of a receiver, trustee, or similar authority, or (iv) is liquidated or dissolved. In addition, either party may terminate this Agreement upon ten (10) days’ prior written notice if there are no active Service Orders in effect.
12.4 Effect of Termination.
If Customer terminates this Agreement due to Isotopes’ uncured material breach in accordance with Section 12.3 (Termination), Isotopes will refund the pro rata amount of any prepaid, unused fees covering the remainder of the term of any terminated Service Orders as of the effective date of termination. If Isotopes terminates this Agreement due to Customer’s uncured material breach in accordance with Section 12.3, Customer will remain liable for, and shall pay within thirty (30) days, all fees accrued or payable through the effective date of termination. Upon termination of this Agreement: (i) Isotopes’ obligation to provide the Services will cease; (ii) all rights of Customer, its Affiliates, and Users to access or use the Services will immediately terminate; and (ii) within thirty (30) days of termination each party will return or destroy the other party’s Confidential Information and, upon request, certify such destruction in writing.
12.5 Suspension In Lieu of Termination.
If any amount owing by Customer is thirty (30) or more days overdue, Isotopes may, without limiting its other rights and remedies, and after providing Customer at least 10 days’ prior notice by email, accelerate Customer’s unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Isotopes’ services to Customer until such amounts are paid in full.
- SURVIVAL. The provisions of Sections: 8 (“Confidential Information”),10 (“Indemnification”),11(“Limitation of Liability and Disclaimer of Damages”), and 14 (“Miscellaneous”), and any other terms and conditions of this Agreement which by their nature reasonably should survive the termination or other expiration of this Agreement shall survive any expiration or termination of this Agreement.
- MISCELLANEOUS
14.1 Assignment.
Either party may assign this Agreement without the consent of the other party to an Affiliate, or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets (a “Sale”). Assignment will not relieve the assigning party of its obligations under the assigned Agreement and such assignment will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. If Customer enters into a Sale with a direct competitor of Isotopes or assigns the Agreement to a direct competitor of Isotopes, Isotopes may, in its sole discretion terminate the Agreement.
14.2 Compliance with Applicable Laws.
Each party will comply with all applicable laws, including without limitation, applicable export-control restrictions, data privacy laws, and anti-corruption laws.
14.3 Future Features and Functions.
Customer agrees that Isotopes may, from time to time, at its sole discretion, modify and update the Service. Customer understands and agrees that any features or functions related to Isotopes products referenced on any Isotopes website, or in any presentations, verbal or electronic communications, press releases or public statements, which are not currently available as a “Generally Available” release, may not be delivered on time or at all. The development, release, and timing of any features or functionality described for our products and services remains at Isotopes’ sole discretion. Accordingly, Customer agrees that it is purchasing products and services based solely upon features and functions that are currently available as of the time a Service Order is executed, and not in expectation of any future feature or function. Furthermore, Customer agrees Isotopes may release functionality or features in the future not to be made available to the Isotopes customer base generally, and that access to such new features may, in Isotopes’ sole discretion, require payment of additional Fees.
14.4 Notices.
All notices under this Agreement must be in writing and may be delivered by: (i) U.S. first-class mail, registered or certified (return receipt requested); (ii) a nationally recognized overnight courier service; or (iii) email (with confirmation of receipt). Notices must be sent to the address of the receiving party specified on the first page of this Agreement, or to such other address as a party may designate by written notice in accordance with this Section. Notices will be deemed given: (i) five (5) business days after deposit in the U.S. mail, (ii) one (1) business day after delivery by overnight courier, or (iii) when confirmed as received if sent by email. Notices to Isotopes must be addressed to its Legal Department, with an email copy to legal@isotopes.ai.
14.5 Non-waiver.
The failure of either party to enforce any provision of this Agreement or to exercise any right or remedy will not constitute a waiver of such provision, right, or remedy, and will not limit that party’s ability to enforce such provision, right, or remedy at a later time or in any other instance. Nothing in this Agreement shall be construed to waive or limit either party’s rights or remedies with respect to acts or omissions occurring outside the scope of this Agreement.
14.6 Dispute Resolution.
This Agreement will be governed by the laws of the State of California, U.S.A., without giving effect to any conflicts of laws provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. Any claim, suit, action or proceeding arising out of or relating to this Agreement or its subject matter will be brought exclusively in the state or federal courts of Santa Clara County, California, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts. No claim or action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the earlier of the following: a) the expiration or termination of all Subscriptions, b) the termination of this Agreement, or c) the time a party first became aware, or reasonably should have been aware, of the basis for the claim. To the fullest extent permitted, each party waives the right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
14.7 Severability.
If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
14.8 Relationship of the Parties;
No Third Party Beneficiaries. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect. Each party may identify the other as a customer or supplier, as applicable. This Agreement is intended for the sole benefit of the parties and their respective successors and permitted assigns. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies on any person or entity other than the parties to this Agreement.
14.9 Force Majeure.
Force Majeure Events shall excuse the affected party (the "Non-Performing Party") from its obligations under this Agreement so long as the event and its effects continue. Force majeure events include acts which are beyond the reasonable control of a party, including without limitation, Acts of God, natural disasters, pandemic, epidemic, war, riot, network attacks, acts of terrorism, fire, explosion, accident, sabotage, strikes, inability to obtain power, fuel, material or labor, or acts of any government (each, a “Force Majeure Event”). As soon as feasible, the Non-Performing Party shall notify the other party of: (a) its best reasonable assessment of the nature and duration of the Force Majeure Event, and (b) the steps it is taking to mitigate its effects. If the Force Majeure Event prevents performance for more than sixty (60) days, and the parties have not agreed upon a revised basis for performance, then either party may immediately terminate the Agreement upon written notice. Isotopes’ suspension of the Services in order to comply with laws is a Force Majeure Event. A Force Majeure Event suffered by Customer will not suspend Customer’s requirement to pay Fees.
14.10 U.S. Government Restricted Rights.
If the Services is used by the U.S. Government, parties agree the Services is “commercial computer software” and “commercial computer documentation” developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject solely to the terms of this Agreement as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
14.11 Publicity.
During the term of this Agreement, Customer agrees to support Isotopes’ marketing efforts in the following areas: (i) Customer’s name and logo may be used on Isotopes’ website and in Isotopes’ marketing materials (subject to Isotopes’ compliance with any written trademark use guidelines provided by Customer to Isotopes in advance), (ii) press release announcing Customer’s selection of Isotopes and/or the Services, and (iii) announcement of Customer’s use of Isotopes (in a method of Customer’s choosing; blog, press release, email, other channels). If Customer plans to submit or publish any research relative to Customer’s outcome of using Isotopes Products and/or Services, Customer agrees to inform Isotopes prior to such submission or publication.
14.12 Entire Agreement; Execution.
This Agreement, together with the Appendices and applicable Service Order(s) constitute the entire agreement between parties, and supersedes all prior or contemporaneous proposals, quotes, negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter. Revisions to this Agreement must be made by a separate amendment, signed by each party, and must be expressly drafted for that purpose and identify the specific sections that are being revised. However, if Customer agreed to these terms by reference in another binding instrument (e.g., on a Service Order which refers to these terms by URL), Isotopes may change these terms by posting an updated version at the applicable URL and notifying Customer of the change. By continuing to access or use the Services after such notice Customer agrees to be bound by the updated terms. Customer click-through terms, preprinted terms in Customer purchase orders or other customer-generated ordering documents, or terms referenced or linked within them, will have no effect on this Agreement and are hereby rejected, regardless of whether they are signed by Isotopes and/or purport to take precedence over this Agreement. The order of precedence among all documents executed among the parties shall be: (1) the applicable Service Order, (2) this Agreement, (3) fully executed SOWs, (4) the Documentation. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The parties may use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures shall be legally binding with the same effect as manual signatures.
Appendix 1
(Definitions)
“Affiliate” means, with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party through the possession of more than fifty percent (50%) of the voting stock of the controlled entity.
“Authorized User” or “User” means: (a) in the case of an individual accepting this Agreement on such individual’s own behalf, such individual; or (b) an employee or authorized third-party of Customer, who has been authorized by Customer to use the Services in accordance with the terms and conditions of this Agreement and has been allocated user credentials.
“Business Day” means 7:00 a.m. – 6:00 p.m. Pacific Time, U.S.A. during a day which is not a federally recognized holiday. A “Business Hour” occurs during a Business Day.
“Connected Application” means Customer’s or a third party’s web-based or other software application interoperates with the Services.
“Customer Data” means any electronic data or materials provided or submitted by or for Customer to or through the Services.
“Documentation” means Isotopes’ published user manual that describes the functionality of the Services, as updated by Isotopes from time to time.
“Error” means a material deviation from the intended behavior of the Services as described in the Documentation.
“Service Order” means the purchasing document (however so named), signed by a duly authorized representative of each party, that details the Subscription, pricing, payment terms, applicable licensing metrics, other applicable commercial terms and condition, and includes its attachments, schedules, exhibits, addenda, and any terms and conditions and other products and services purchased by Customer from Isotopes pursuant to this Agreement.
“Party” means either Customer or Isotopes and together the “Parties”.
“Professional Services” means services performed by Customer’s personnel or subcontractors that Customer agrees to purchase as described in a Service Order or fully executed statement of work.
“Service” means Isotopes software-as-service platform located at https://www.isotopes.ai including any applicable subdomains.
"Subscription" means access to the Services during the Subscription Term. Each Subscription is specific to a unique Authorized User and under no circumstance may an Authorized User Subscription be transferred to, shared among or used by different Authorized Users.
“Subscription Term(s)” means the subscription period(s) during which Customer is authorized to use the Services, as specified in an applicable Service Order.
