The Nextmol License Terms (“Terms”) set out the license terms and terms of use of the Nextmol SaaS Platform and applies to all relations between Bytelab Solutions S.L., Calle Mallorca 1, 08014 Barcelona, Spain (“Nextmol”) and you (“Customer” or “Licensee”) related to the Nextmol SaaS Platform. The use of the Nextmol SaaS Platform by the Customer shall be deemed acceptance of these Terms, which will be binding upon Customer. The terms form an integral part of the service agreement agreed between Nextmol and the Customer, setting out the terms under which Nextmol provides the services to Customer, including without limitation, the price and duration, amongst other matters (“Service Agreement”). In case of termination or suspension of the Service Agreement, the Terms shall terminate simultaneously and the license shall no longer be effective. In case of conflict, the license terms set out herein shall prevail.
“Nextmol SaaS Platform”: computational chemistry software product owned by Nextmol offered as software-as-a-service and accessible exclusively online, including any related websites, spaces, services, and applications, as designated in the Service Agreement.
1. License to Nextmol SaaS Platform & Ownership of the Nextmol SaaS Platform
1.1. License. Nextmol grants to Customer, during the subscription term agreed in the Service Agreement, a limited, revocable, non-exclusive, non-transferable, non-sublicensable, world-wide right and license to use the “Nextmol SaaS Platform” (“License”), subject to the subscription plan agreed between Customer and Nextmol in the Service Agreement. The License is offered as set out in the Service Agreement and Nextmol documentation accessible via Nextmol’s website.
1.2. Ownership of the Nextmol SaaS Platform. Nextmol own and shall retain all proprietary rights, including all copyright, database rights, source code, algorithms, computational processes, patents, trade secrets, trademarks and all other intellectual and industrial property rights, in and to the Nextmol SaaS Platform, Documentation and any update or modification to the Nextmol SaaS Platform. Nothing in these Terms shall be construed to transfer any ownership on the Nextmol SaaS Platform to Customer.
1.3. Updates. Nextmol may implement new versions and upgrades of the Nextmol SaaS Platform including, but not limited to, changes that effect modifications to the design, fixes, patches, operational method, technical specifications, systems, enhanced or new algorithms, workflows, capacity, and other functions, etc. of the Services, at any time without prior notice. Nextmol reserves the right to charge additional fees for use of any such upgrades or new versions.
2. Rights granted to Customer under the License.
2.1. This License entitle the Customer to access and use the Nextmol SaaS Platform in the terms and conditions set out in these Terms. The Nextmol SaaS Platform is only accessible online through the web link that Nextmol makes available to Customer and the License does not grant any right to Customer to download the software or access its source code.
2.2. The Customer may only permit its employees to use the Nextmol SaaS Platform (“Authorised Users”) provided that: (a) Customer has obtained a License for each Authorised User; (b) Customer procures that all Authorised Users abide to the Terms; (c) the use of the Nextmol SaaS Platform is only for the benefit of the Customer; (d) Customer remains responsible and liable towards Nextmol for all acts and omissions of such Permitted Users.
3. Customer Content.
3.1. Ownership of and responsibility for all molecules, experiments, projects, jobs, analyses, estimations, data and other results uploaded by Customer and/or Authorised Users to the Nextmol SaaS Platform or generated by Customer and/or Authorised Users through use of the Nextmol SaaS Platform (collectively, the “Customer Content”) shall fully remain with Customer and/or Authorised Users or its respective owner.
3.2. Customer acknowledges that the Customer Content uploaded or generated by Customer or Authorised Users shall not be accessible by third-party users of the Nextmol SaaS Platform.
3.3. Customer represents and warrants that (a) Customer and Authorised Users have sufficient rights to upload and generate any Content; (b) there are no third-party rights, including privacy rights and intellectual or industrial property rights which restrict the uploading or generation of any Customer Content by Customer and/or by Authorised Users; (c) the Content does not contain any viruses, worms, Trojan horses, malicious code or other harmful or destructive content; and (d) the Content does not contain any infringing, libelous, or otherwise unlawful or tortious content.
3.4. Customer grants (and shall procure that Authorised Users grant) to Nextmol the non-exclusive, unlimited (in terms of time and territory), sublicensable, transferable, royalty-free and irrevocable right to use the Customer Content for the purpose of performing Nextmol’s obligations under the Service Agreement and the Terms and of improving and optimizing the Nextmol SaaS Platform and specific functionalities thereof, including for bug fixing, testing and rectifying defects, building new computational workflows and processes as well as for statistical analyses.
3.5. Customer is advised to make regular data backups of the Customer Content. Nextmol shall not be liable for any loss of Customer Content.
3.6. Customer may from time to time provide Nextmol with suggestions for new features or functionalities of and with feedback regarding the Nextmol SaaS Platform. Nextmol shall be free to take such suggestions or feedback into consideration. Customer grants to Nextmol, without charge, the fully paid-up, perpetual, sublicensable right to exploit such feedback for any purpose.
3.7. Customer agrees that Nextmol may refer to Customer by its trade names and logos, and may briefly describe Customer’s business, in Nextmol’s marketing materials and Nextmol’s website.
4. Customer responsibilities
4.1. Customer may only use and may procure Authorised Users only use the Nextmol SaaS Platform as prescribed in the Service Agreement, Terms, Documentation and in full compliance with all applicable laws and regulations.
4.2. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Nextmol SaaS Platform at its own cost, including, without limitation, modems, hardware, servers, software, operating systems, internet and networks (collectively, “Equipment”). Nextmol’s current Equipment requirements (as amended from time to time) may be accessed on Nextmol’s website.
4.3. Customer shall keep the information in its account of the Nextmol SaaS Platform (“Customer Account”) up to date and correct and shall ensure that Authorised Users identities, passwords and similar access credentials used for accessing the Nextmol SaaS Platform are stored in a secure manner and cannot be accessed by third parties and are immediately changed in the event of unauthorized disclosure.
4.4. Customer shall be responsible for maintaining the security of the Equipment and the Customer Account. Customer shall be responsible for all uses of the Nextmol SaaS Platform under the Customer Account with or without Customer’s knowledge. Customer shall notify Nextmol promptly of any unauthorized use or disclosure of any account, user identities, passwords or similar access credentials or any other known or suspected breach of security or misuse of the Nextmol SaaS Platform. Without prejudice to any other remedies available to Nextmol, Customer shall be liable for any losses or damage incurred by Nextmol, where Customer fails to notify Nextmol accordingly or delays such notification. Nextmol shall not be liable for any loss suffered by the Customer for any unauthorised access to Customer Account or Customer Content.
5. License restrictions
5.1. Except as otherwise expressly set out in the Terms or permitted by mandatory law, Customer shall not and shall not permit any Authorised Users or third party to directly or indirectly:
a. use the Nextmol SaaS Platform outside of the scope of rights as set forth in the Terms;
b. sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, outsource, use on a timeshare or service bureau basis, or use in an application service provider or managed service provider environment, or otherwise generate income from the direct use of the Nextmol SaaS Platform;
c. download or copy the entire or any part of the Nextmol SaaS Platform onto its internal systems nor any private, public or distributed network;
d. modify, adapt, translate or create derivative works based on all or any part of the Nextmol SaaS Platform;
e. modify any proprietary rights notices that appear in the Nextmol SaaS Platform or components thereof or any other rights of any third party;
f. upload any information containing any personal data, unless it has been previously authorised by Nextmol and parties have entered into a data processing agreement;
g. decompile, reverse engineer or disassemble any portion of the Nextmol SaaS Platform, or otherwise attempt to discover any source code, object code or underlying structure, algorithms, computational processes, know-how or other operational mechanisms of the Nextmol SaaS Platform;
h. use the Nextmol SaaS Platform for unlawful or unauthorised activities, in particular but not limited to (i) store, download or transmit infringing, libelous, or otherwise unlawful or tortious material, or malicious code or malware; (ii) engage in phishing, spamming or other fraudulent or criminal activity; (iii) interfere with or disrupt the integrity or performance of third-party systems, or the services or data contained therein; (iv) attempt to gain unauthorized access to the Nextmol SaaS Platform or Nextmol’s systems or networks; (v) perform, or engage any third party to perform, authenticated or unauthenticated penetration testing, vulnerability assessments or other security assessments on the Nextmol SaaS Platform; (vi) scrape, build databases or otherwise create permanent copies of the content of any portion of the Nextmol SaaS Platform;
i. use the Nextmol SaaS Platform, Documentation nor any technical data or any copy, portions or direct product thereof in breach of any applicable laws and regulations, including sanction restrictions and technology and export control laws of the European Union and the United States. Customer represents and warrants that Customer is neither a denied party specified in any such laws and regulations nor listed on any official list of prohibited or restricted parties.
5.2. Although Nextmol has no obligation to monitor Customer’s and Authorised Users’ use of the Nextmol SaaS Platform, Nextmol may without notice or liability, investigate any complaints or suspected violations of these Terms or any applicable law or regulation. Nextmol may take any legal action and/or technical measures that it considers appropriate, including, but not limited to, removing any Content or other data, or restricting, suspending, or terminating Customer’s and/or any Authorised Users access to the Nextmol SaaS Platform.
6. Availability of the Platform
6.1. Nextmol has no influence on and is not responsible for Customer’s or Authorised User’s internet access or internet connection including its availability, bandwidth or any costs and expenses of Customer associated therewith.
6.2. Nextmol endeavours to offer constant availability to the Nextmol SaaS Platform, but cannot warrant uninterrupted availability thereof. Nextmol will do reasonable endeavours to correct any interruption or fix any bug within a reasonable time.
6.3. From time to time, access to the Nextmol SaaS Platform may be suspended, limited or interrupted to allow for the deployment of modifications to the design, fixes, patches, operational method, technical specifications, systems or other functions and/or the upgrade or update of the Nextmol SaaS Platform that Nextmol, at its sole discretion, may deem necessary or convenient. When possible, Nextmol will inform Customer in advance of the changes that will be implemented and any interruption of the access to the Nextmol SaaS Platform. Customer agrees and acknowledges that Nextmol shall not be responsible for any suspension, or limitation of interruption of the Nextmol SaaS Platform.
6.4. Nextmol shall provide Customer with support for the Nextmol SaaS Platform in the terms agreed in the Service Agreement or, failing that, a reasonable level of support with response time of one week. “Support” shall mean Nextmol’s obligation to respond to Customer’s reasonable support requests by troubleshooting issues and providing assistance. “Response time” refer to the time in which Nextmol needs to respond to Customer, but it does not mean that any error solution or bug fixes shall be solved by that time.
Customer shall report any errors exclusively via the email support system offered by Nextmol, or the support option within the Nextmol SaaS Platform, if available.
Nextmol shall keep Customer informed at reasonable intervals and to a reasonable extent on the status of the rectification of an error. Nextmol makes no assurances regarding the period of time in which an error may be fixed or removed.
7. Warranty and Limitation of liability
7.1. Customer is aware of the essential functionalities and features of the Nextmol SaaS Platform. Customer has verified that the specification of the Nextmol SaaS Platform as described in the Documentation meets Customer’s needs and wishes. The extent, nature and quality of the Nextmol SaaS Platform are determined by these Terms, the Service Agreement and the Documentation. Any other information or requirements shall only be binding if and to the extent that Nextmol and Customer so agree in writing or if Nextmol so confirms in writing. Product descriptions, illustrations, test programs, etc. represent mere service descriptions but do not constitute guarantees or agreements on certain specifications.
7.2. To the maximum extent permitted by applicable mandatory law, Nextmol warrants that (a) the Nextmol SaaS Platform will, in all material respects, conform to the functionality described in the then-current Documentation of the Nextmol SaaS Platform, excluding expressly any warranty that the Nextmol SaaS Platform will be adequate or fit for purpose; and that (b) the Nextmol SaaS Platform does not infringe any third party rights. Nextmol disclaims all other expressed, implied or statutory warranties, including but not limited to the implied warranties or merchantability and fitness for a particular purpose. In case of a breach of this warranty, Nextmol shall be required to use commercially reasonable efforts to modify the respective Services to conform in all material respects to the Documentation, and if Nextmol is unable to materially restore such functionality within thirty (30) days from the date of written notice of said breach, Customer may terminate the Service Agreement upon written notice and, where relevant, receive a pro-rata refund of the unused fees which have been paid in advance (if any) for unused access to the Nextmol SaaS Platform, which shall be the Customer’s sole and exclusive remedy. In order to be eligible for the foregoing remedy, Customer shall notify Nextmol in writing of any warranty breaches and Customer must have used the Services in accordance with the Documentation. Customer’s claims for damages for a breach of this warranty are subject to the limitations set forth in Clause 7.4.
7.3. Customer agrees and acknowledges that the Nextmol SaaS Platform analyzes data uploaded by Customer and provides computational capabilities relating to, for example, molecular modeling and machine learning, as the case may be. As a consequence, Nextmol is not responsible for (a) the correctness, completeness, integrity and accuracy of any data transmitted to Nextmol or uploaded into the Nextmol SaaS Platform by Customer; (b) any Customer Content; (c) any conclusions drawn by Customer or any third party from any simulation, calculation, modeling or other process or operation executed by the Nextmol SaaS Platform or by Customer using the Nextmol SaaS Platform (“Conclusions”); (d) the technical, scientific, legal and commercial feasibility of any project, product and undertaking of Customer or any third party; and (e) the economic and financial viability of any project, product and undertaking of Customer or any third party.
7.4. Except in case of gross negligence, or intentionally wrongful conduct and to the extent permitted by applicable law, Nextmol shall not be liable for any indirect, special, consequential or incidental damages arising from the use of the Nextmol SaaS Platform; nor for the damages caused by the incorrect or unlawful use of the Nextmol SaaS Platform by Customer, Authorised User or any third party; nor from the Conclusions drawn by the Customer using the Nextmol SaaS Platform or any use of such Conclusions by Customer or any third parties.
To the extent allowed by law, Nextmol’s total liability arising out of or in connection with these Terms and the Agreement, whether in contract or tort or otherwise shall in no circumstances exceed a sum equal to one hundred and fifty percent (150%) of the total License Fees paid or payable by Customer under the terms of the Service Agreement.
7.5. Nextmol agrees to defend at its expense Customer against (or, at Nextmol’s option, settle) any third-party claim to the extent such claim alleges that the Nextmol SaaS Platform infringes or misappropriate any third party intellectual or industrial property rights, and Nextmol shall pay all reasonable costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such claim. In the event that the use of the Nextmol SaaS Platform is, or in Nextmol’s sole opinion is likely to become, subject to such a claim, Nextmol, at its option and expense, may (a) replace the contested function of the Nextmol SaaS Platform with functionally equivalent non-infringing technology; (b) obtain a license for Customer’s continued use of the contested function of the Nextmol SaaS Platform; or (c) where relevant, immediately terminate the Service Agreement and the Terms in whole or in part and provide a pro-rata refund of the License Fees that have been paid in advance for the License (beginning on the date of termination). Nextmol’s foregoing indemnity obligation shall not apply: (i) if the contested function of the Nextmol SaaS Platform has been modified by Customer or by any third party for which Customer is responsible; (ii) if the contested function of the Nextmol SaaS Platform is combined with other non-Nextmol products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; or (iii) to any unauthorized use of the Nextmol SaaS Platform. Customer’s rights under this clause shall be Customer’s sole remedy with respect to any claim of infringement of third-party intellectual property rights and trade secrets.
7.6. Without prejudice to any other liability of Customer under the Terms, the Service Agreement or statutory law, Customer shall defend, indemnify and hold harmless, at its expense, Nextmol and its Affiliates, its employees, subcontractors, suppliers and resellers against any third party claim to the extent such claim arises from or is made in connection with a breach of Clause 3, 4 or 5 or otherwise from Customer’s or Authorised Users use of the Services, and Customer shall pay all costs and damages finally awarded against Nextmol by a court of competent jurisdiction as a result of any such claim.
8. Term and Termination
8.1. The License and the Terms are effective from acceptance or from the first access to the Nextmol SaaS platform until termination.
8.2. The License and the Terms will terminate in the following scenarios:
a. Simultaneously to the termination of the Service Agreement for any reason whatsoever; or,
b. In the event that Customer or any Authorised User commit a breach of the Terms, the Terms shall immediately terminate if, after written notice to Customer (simple email shall be sufficient), the Customer fails to remedy such breach within fifteen (15) calendar days after such notice; or,
c. In the event that Customer fails to pay the License Fee within the payment term, the Terms shall immediately terminate if, after written notice to Customer (simple email shall be sufficient), the payment is not received within fifteen (15) calendar days after such notice; or,
d. Immediately on written notice to Customer (accepting notice via e-mail) in the event that the commercialisation of the Nextmol SaaS Platform is discontinued.
In the situations set out in section 8.2.b and 8.2.c., Nextmol may immediately suspend Customer’s access to the Services following notice in writing (simple email shall be sufficient).
8.3. When Customer has access to the SaaS Platform for trial use, Nextmol may downgrade, limit, terminate or otherwise modify the Services provided for Trial Use at any time without notice.
8.4. In the event that the License and the Terms are terminated for any reason:
a. All rights granted to Customer and Authorised Users under the Terms shall discontinue;
b. Customer and Authorised users shall discontinue the use of the Nextmol SaaS Platform;
c. For a period of thirty (30) days following the end of the License, Customer shall be entitled to create backup copies of its Customer Content. Upon expiry of such period, Nextmol may (i) choose, at its sole discretion, to delete the Customer Content or to retain it; (ii) restrict Customer and Authorised Users access to Customer Account and to Customer Content.
8.5. Termination of the License and Terms shall not entitle the Customer to any compensation, unless otherwise set out in the Service Agreement.
9. Amendments to the Terms
9.1. Nextmol may amend and/or update these Terms from time to time and as necessary for technical, economic or legal reasons. Any amendment of these Terms shall be announced to Customer in text form (simple email shall be sufficient) no later than thirty (30) natural days before their proposed effective date. Customer may either approve or object to the revision before their proposed effective date. The revision shall be deemed approved by Customer, unless Customer objects to the revision before their proposed effective date.
10. Privacy and Data Protection
10.1. Customer and Nextmol shall at all times comply with the requirements of any applicable data privacy and data protection legislation including but not limited to the EU General Data Protection Regulation (“GDPR”).
10.2. In the event that the Services include the processing of personal data relating to Customer, Nextmol processes such data solely as a ‘processor’ on behalf of Customer who acts as a ‘controller’, each as defined in any applicable privacy and data protection legislation including but not limited to the GDPR. Where required by such legislation, Nextmol shall enter into a written data processing agreement with Customer.
11. Confidentiality
11.1. If Nextmol or Customer receive Confidential Information (as defined below), they may only use such Confidential Information to exercise their rights and fulfil their obligations under the Terms and shall take reasonable measures to avoid unauthorized disclosure or misuse of Confidential Information. They shall not disclose Confidential Information, except to their employees, subcontractors, or professional advisers who have a legitimate need to know the Confidential Information and are legally bound to keep such Confidential Information confidential; and as required to be disclosed by applicable law, or judicial or other governmental or regulatory order.
11.2. “Confidential Information” means any information that is directly or indirectly disclosed or made accessible in connection with the Terms and Nextmol SaaS Platform (a) to Nextmol by or on behalf of Customer, or (b) to Customer by or on behalf of Nextmol; and which is identified as ‘confidential’ or ‘proprietary’ or which, given the nature of the information or circumstances surrounding the disclosure, should reasonably be understood by the recipient to be confidential or proprietary, but does not include information that the recipient can demonstrate it already rightfully knew or possessed, becomes public through no fault of the recipient, is received by the recipient from a third party with the legal right to disclose it, or can be shown to have been independently developed by the recipient without reference to the discloser’s Confidential Information.
12. Miscellanea
12.1. The person signing or otherwise accepting the Terms represents that they are duly authorized by all necessary and appropriate corporate action to enter into the Terms on behalf of Customer.
12.2. These Terms shall not create any agency, employment, joint venture, partnership, or any company of any other kind between Nextmol and Customer.
12.3. Customer’s Affiliates and their staff (including their employees and freelancers) must not benefit from the License, consequently they shall not use the Nextmol SaaS Platform without Nextmol’s prior written consent. Upon granting of such consent, Customer’s Affiliates and their staff shall be deemed Permitted Users hereunder. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under direct or indirect common control with Nextmol or Customer respectively, or which is a wholly owned subsidiary of Nextmol or Customer respectively, whereby ‘control’ means owning, directly or indirectly, at least fifty-one percent (51%) of the equity securities or equity interests of an entity.
12.4. Nextmol may retain subcontractors, including third-party software suppliers, for the performance of any of its obligations under these Terms.
12.5. Subject to applicable law, Customer shall not assign any of its rights or obligations under these Terms without Nextmol’s prior written consent and any purported assignment in breach of this Clause shall be void. Nextmol may at its discretion assign, or transfer to third parties the Terms and/or any associated rights in whole or in part.
12.6. Should any provision of these Terms be or become ineffective or invalid in whole or in part, the effectiveness and validity of the other provisions shall not be affected. Such ineffective or invalid provision shall be replaced by a provision which comes as close as legally possible to what the parties would have agreed, pursuant to the meaning and purpose of the original provision and of the Terms if they had recognized the ineffectiveness or invalidity of the original provision. If the ineffectiveness or invalidity of a provision is based on the determination of a certain level of performance or a certain time (deadline or fixed date), such ineffective or invalid level or time shall be replaced by the level or time which comes as close as legally possible to the original level or time. The foregoing shall also apply to any possible omission in the Terms that was not intended by the parties.
12.7. No failure or delay by either party in exercising any of its rights under the Terms shall be deemed to be a waiver of that right, and no waiver by either party to these Terms of a breach of any provision of these Terms shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
13. Applicable law and Jurisdiction
13.1. These Terms as well as any issues, disputes or claims arising out of or in connection therewith shall exclusively be governed by the laws of Spain. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
13.2. The venue of jurisdiction for all disputes arising out of or in connection with these Terms shall be Barcelona, Spain.
Last update: October 2023