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Extranet Access Agreement
This Agreement provides for Corning Incorporated ("Corning") to grant access to you to the Corning Incorporated: Life Sciences Extranet web site (including computer programs and content as determined in Corning’s sole discretion – such as programs which provide order detail and shipping data), on a "password-restricted" basis. BY CHECKING THE "I HAVE READ AND ACCEPT" BOX IT IS AGREED THAT YOU ACCEPT THIS AGREEMENT AND THE ASSOCIATED TERMS AND CONDITIONS OF USE OF THE EXTRANET, AND THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF. FURTHER YOU EXPRESSLY REPRESENT TO CORNING THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT. NOTHING CONTAINED IN THIS AGREEMENT SHALL OPERATE TO AMEND OR OTHERWISE CHANGE THE TERMS OF ANY EXISTING AGREEMENT BETWEEN YOUR EMPLOYER AND CORNING.THIS AGREEMENT SHALL BECOME EFFECTIVE WHEN YOU CHECK THE "I HAVE READ AND ACCEPT" BOX.
- Definitions. "Extranet" means the limited access internet web site presently found at www.corning.com/lifesciences maintained and operated by Corning Incorporated which provides a variety of computer programs and information with respect to the products your employer has ordered from Corning’s Life Sciences operations.
- License. Corning hereby grants you, subject to the terms and conditions of this Agreement, a nonexclusive, nontransferable right and license to access the Extranet. In connection with the foregoing, to create on-line or off-line printouts of information retrieved from the computer programs contained on the Extranet, and reproduce, reformat, analyze, print and display such printouts for your internal commercial purposes, including presentation to your co-workers. Except as expressly authorized in this Agreement, you agree not to rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify, store, or time-share the access to the Extranet. Further, you agree to take all reasonable steps to protect the Extranet from unauthorized access, copying, or use. Corning reserves all rights not expressly granted to you. The presentation of Extranet site materials to a third party is expressly prohibited.
- Username/Password. You agree to assume sole responsibility for the security of the usernames and passwords issued to you by Corning. Unless expressly approved in writing by Corning in advance, a password is valid for use only by you and no other person(s). Passwords and usernames are subject to cancellation or suspension by Corning at any time, including upon nonuse for such period as Corning may determine, and reissuance or reactivation of such passwords are subject to Corning's sole discretion. If you believe that any password is being used by someone other than yourself, you must notify Corning immediately. If such use was not due to your acts or omissions or, fault or negligence, or if you have previously notified Corning to cancel the applicable password, Corning shall promptly take the appropriate action to restore, replace or delete your password.
- Your Responsibilities. You are responsible for determining whether the Extranet and associated computer programs will achieve the results you desire; procuring, installing, and operating the required minimum specified hardware/software in combination with computer programs and access devices (if any) supplied by Corning; providing a proper environment and proper utilities for the systems. You are responsible for adopting reasonable measures to limit your exposure with respect to potential losses and damages arising from use, nonuse, interruption, delay, errors, or omissions of or in the Extranet or the associated computer programs, or the results thereof, including (without limitation) examination and confirmation of data prior to use thereof, provision for identification and correction of errors and omissions, preparation and storage of backup data, replacement of lost or damaged data or media, and reconstruction of data. You are also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any data. Corning is not responsible for obsolescence of the computer programs that may result from changes in your requirements. You on behalf of your employer represent that your employer and you agree to indemnify and hold Corning, its officers, employees, and agents harmless from and against any loss, claims, demands, expenses (including court costs and attorney fees), or liability of whatever nature or kind (including, without limitation, negligence), of your or any third parties arising out of your use or nonuse of the Extranet.
- No Fees. Corning will provide your access to the Extranet free of charge.
- Proprietary Protection. Corning and/or its third-party suppliers shall be the sole owner(s) of the content of the Extranet and the associated computer programs, including any adaptations or copies thereof, and including associated intellectual property rights. Copies are provided and may be made only to allow you to exercise your rights under this Agreement. Corning and/or its third-party supplier claim U.S. and foreign copyright ownership with respect to the Extranet and the associated computer programs as compilations and expressions of distinctive and creative formats, as well as claiming that portions of the Extranet contain trade secret information of Corning, including the structure and right of access to the Extranet. It is Corning's practice to place copyright notices and/or other proprietary legends in report forms. You shall provide for the reproduction of such notices and legends in the form and manner in which they appear. (For example: Copyright Corning Incorporated © 2015. All Rights Reserved.)
- Indemnification. If a third party claims that your use of the Extranet or any associated computer program, as provided to you hereunder, or your authorized use of such computer program pursuant to this Agreement infringes any U.S. patent, copyright, or trade secret, Corning will defend you and your employer against such claim at Corning's expense and pay all damages that a court finally awards, provided that you promptly notify Corning in writing of the claim, and allow Corning to control, and cooperate with Corning in, the defense or any related settlement negotiations. If such a claim is made or appears possible, Corning may, at its option, secure for you the right to continue to use the Extranet or computer programs, modify or replace the Extranet or computer programs with equivalent information so they are noninfringing, or, if neither of the foregoing options is available in Corning's judgment, terminate this Agreement. THIS PARAGRAPH STATES CORNING’S ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
- Limitations. Corning and/or its third-party suppliers shall employ due care and attention in obtaining and maintaining the Extranet and associated computer programs. However, you acknowledge that any collection and compilation of data entails the likelihood of some human and machine errors, omissions, delays, interruptions, and losses, including inadvertent loss of data or damage to media, which may give rise to loss or damage. Accordingly, you agree THAT THE EXTRANET AND ASSOCIATED COMPUTER PROGRAMS ARE PROVIDED "AS IS"; CORNING MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THEIR ACCURACY, COMPLETENESS, CORRECTNESS, CURRENTNESS, OR RELIABILITY; NOR DOES CORNING MAKE ANY REPRESENTATION OR WARRANTY THAT THE EXTRANET AND ANY ASSOCIATED COMPUTER PROGRAMS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT EXTRANET SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; ANDTO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW CORNING SPECIFICALLY DISCLAIMS ANY WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CORNING SHALL NOT BE LIABLE ON ACCOUNT OF ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL CORNING BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL, THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE EXTRANET OR THE ASSOCIATED COMPUTER PROGRAMS, EVEN IF CORNING OR A CORNING AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU FURTHER AGREE THAT IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF CORNING FOR ANY CLAIMS, LOSSES, OR DAMAGES ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO CORNING FOR ACCESS TO THE EXTRANET DURING THE PRECEDING TWELVE-MONTH (12) PERIOD, EVEN IF CORNING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIM, LOSS, OR DAMAGE. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
- Default. Should you fail to carry out any other obligation under this Agreement or any other agreement with Corning, Corning may, at its option, in addition to other available remedies (such as the removal of your Username and Password) may immediately terminate this Agreement. Corning reserves the right, with or without notice, to suspend access to or use of the Extranet or any associated computer program.
- Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York as it applies to a contract made and performed in such state.
- Modifications and Waivers. This Agreement may not be modified except by a writing signed by authorized representatives of both parties. A waiver by either party of its rights hereunder shall not be binding unless contained in a writing signed by an authorized representative of the party waiving its rights. The nonenforcement or waiver of any provision on one (1) occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing. It is agreed that no use of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.
Terms and Conditions of Sale
The terms and conditions of sale contained herein shall apply to all quotations and offers to sell and purchase orders accepted by Corning Incorporated’s Life Sciences Division (“CLS”). CLS’s acceptance of any proposal to purchase or purchase order issued by the buyer identified on the order acknowledgement or quotation to which these terms relate (hereinafter, such buyer is referred to as “you”) is expressly made conditional on the terms and conditions of sale as set forth herein, irrespective of whether you accept them in writing, by implication or by acceptance of and payment for the goods sold hereunder. These terms and conditions of sale shall govern the contractual arrangement entered into between CLS and you with respect to the goods sold to the exclusion of any terms or conditions of purchase proposed by you.
- Prices. Unless otherwise stated in writing by CLS, all prices quoted shall be exclusive of transportation, insurance, taxes, customs fees, duties, and other charges related thereto, and you shall report and pay any and all such charges and hold CLS harmless therefrom. Prices quoted relate only to the goods referenced herein and do not include intellectual property, industrial property, or patent rights of any kind. CLS reserves the right to increase prices with thirty (30) days advance notice; provided that you will have the right to cancel, without liability, the affected portion of any purchase order by providing written notice prior to the effective date of such price increase.
- Shipment and Title. If the goods referenced in this Agreement are to be shipped within the continental U.S. from a point of origin in the U.S., the applicable delivery term for the goods is F.O.B. (CLS’s facility) (Incoterms 2010 version), unless otherwise stated on the order acknowledgement or quotation to which these terms relate. If the goods referenced in this Agreement are being shipped outside the continental U.S., the applicable delivery term for the goods is DAF (Port of Entry identified on the face of the order acknowledgement or quotation accompanying these terms and conditions) (Incoterms 2010 version). Freight and associated duties incurred by CLS in shipping the goods are your responsibility and shall be invoiced to you.
- Security Agreement. This Agreement shall be considered a security agreement by which you grant to CLS a security interest in the goods sold pending payment in full. You hereby grant to CLS a limited power of attorney solely for the purpose of executing a financing statement or other certificate or instrument and filing the same with the appropriate official to perfect CLS’s security interest. You hereby grant to CLS a purchase money security interest in the goods delivered to secure the purchase price until CLS is paid in full.
- Termination or Change. You may not terminate, suspend performance, reschedule or cancel delivery or issue a “hold” order under this Agreement in whole or in part, without CLS’s prior written consent and upon terms that will compensate CLS for any loss or damage resulting from such action. Your liability shall include, but not be limited to, the price of product delivered or held for disposition, the price of services already performed, and for work in process, incurred costs and a reasonable allocation of general and administrative expenses, plus CLS’s loss of profits. If delivery of the goods referenced is delayed by you, CLS may invoice you for the goods when CLS is prepared to ship and you will reimburse CLS for any storage costs incurred.
- Payment Terms. Unless otherwise indicated on the face of this order acknowledgement, you shall pay the invoiced amount within thirty (30) days from the date of CLS’s invoice. CLS may exercise an option to assess an interest charge of up to 2.5% p.a. above the current prime rate quoted by Citibank, N.A. in New York City, New York (but not to exceed the maximum lawful rate). Unless otherwise agreed, prices shall be quoted and invoices shall be paid in US currency.
- Taxes. Any tax or related charge that CLS shall be required to pay to or collect for any government in connection with this Agreement, including, without limitation VAT, sales tax or use tax (though excluding tax incurred based on the net income of CLS) will be billed to you and paid by you.
- Product Warranty. CLS warrants to you only that the goods referenced herein are free of defects in material and when delivered to you will conform to specifications published by CLS. The foregoing warranty is valid for a period of 12 months from the date of shipment, or such shorter time as may be specified in the specifications published by CLS. In the event that CLS ships any goods that fail to conform to the foregoing warranty, CLS will, at its option, repair the nonconforming goods, provide a free replacement, or grant you an appropriate credit. Either of these alternatives shall be your sole and exclusive remedy in the event of delivery of non-conforming goods and CLS shall not be liable to you or any other party for any other damages, whether directly or indirectly incurred. The warranty and remedies provided in this paragraph shall apply to the exclusion of any other warranties (express or implied, including the warranties of merchantability and fitness for a particular purpose) or remedies that might otherwise be available under applicable law. No warranty or representation or guaranty is made by CLS as a result of the delivery of any sample, prototype, product information sheet, sale or marketing material, custom, trade practice, or statement by a representative of CLS.
- Limitation of Liability. In no event will CLS be liable to you or any other party, under any circumstances, for any special, consequential, indirect or punitive damages such as loss of capital, loss of use, substitute performance, loss of production, loss of profits, loss of business opportunity, or any other claims for damages, even if such losses or damages are reasonably foreseeable. CLS’s total liability hereunder shall be limited to its out-of-pocket costs up to, but not exceeding, the amount paid by you as the purchase price for the goods sold hereunder.
- Intellectual Property. With respect to intellectual property and industrial property matters, CLS’s sole and exclusive liability is to indemnify you only against valid claims based upon infringement of validly issued U.S. patents and then only with respect to goods comprising CLS’s regularly established line of products and only in the form in which sold by CLS. CLS’s sole obligation under this indemnification shall be the assumption of the defense of any such suit brought against you. CLS shall be given exclusive control of the defense of such claim, including settlement.
- Export Control. You acknowledge that the goods sold by CLS are subject to export control laws and regulations of the United States of America. CLS will have no obligation to sell or deliver goods until you have obtained all required export authorizations, if required. You agree that you will not use, distribute, transfer, or transmit the goods except in compliance with United States laws and regulations and the laws and regulations of any other jurisdiction.
- Government Subcontract. If this contract is a subcontract under a United States government prime contract, CLS accepts only those terms and conditions that are required to be included in subcontracts entered into by you with respect to such United States government prime contract and no others. CLS accepts no terms or conditions with respect to adjustment of price, patent warranty or licenses, warranty, limitation of your liability, or special tooling except as appear herein or where the subject of a separate letter agreement that has been duly executed by an authorized officer of CLS.
- Choice of Law. These terms and transactions contemplated hereunder shall be governed by the laws of the State of New York, without regard to its conflicts of laws principles.