Terms of Use

1. Scope

1.1 These terms of use ("Terms of Use") for the online service Graphotate provided via the website www.graphotate.com (“Graphotate”, “the Service(s)”) operated by Merck KGaA, Frankfurter Straße 250, 64293 Darmstadt, Germany, tel.: +49 6151 72-0, fax: +49 6151 72-2000, email address: service@merckgroup.com (“Merck“; “we“; “us“; “our“) apply to the use of Graphotate between Merck and the User (“User”).

1.2 Relevant are the Terms of Use applicable at the time the agreement on the use of Graphotate is concluded.

1.3 Graphotate is an expandable platform for the creation and colaborative management of machine learning image datasets targeting multiple fields of science. It includes features such as customizable and AI-enabled annotation tools, allowing more ways for labelling data, and supports the visualization and management of large image datasets with medical-sized images (up to 30,000 by 30,000 pixels).

2. Use of Graphotate

2.1 In order to use Graphotate the User must register on the Graphotate website www.graphotate.com. For information regarding the related data collected and the processing thereof please refer to our Data Privacy Declaration here. The actual registration and thus conclusion of the agreement on the use of Graphotate between the User is triggered by clicking on the "Sign Up" button after entering the required information. Thereupon the respective User receives an e-mail with a link which must be clicked to confirm the registration and to conclude the usage agreement.

2.2 Merck reserves the right to reject the registration of a User if there is reason to assume that he/she will not act in accordance with the agreement.

2.3 Graphotate is available for use in English language.

2.4 All agreements between Merck and the User are concluded in English language. After the conclusion of the respective agreement the text of the agreement will be provided to the User and is then stored by us but will no longer be accessible to the User.

3. User Obligations

3.1 The User is obligated to provide truthful information when registering for Graphotate to become an User and to notify us without undue delay about all changes to the information requested in the course of the registration. Login data (including passwords) must be protected by the User against disclosure to third parties and must in such an event be replaced with other login data (in particular safe passwords) without undue delay.

3.2 In case untruthful information are provided in the course of the registration or where the User fails to notify changes, the User can be excluded from Graphotate with immediate effect upon reasonable notice in accordance with 8.4 of these Terms of Use. The User’s right to use Graphotate ceases with the exclusion.

3.3 Apart from that, Users are obligated to comply with applicable law and rights of third parties when using Graphotate and Contents of Graphotate. In particular, Users may not:

a) use offensive or defamatory Content, irrespective of whether such Content refers to other Users, our employees or any other persons;

b) use pornographic, violating, abusive or immoral Content or Content that violates youth protection laws or promote, offer and/or distribute pornographic, violating, abusive or immoral products or services or products or services that violate youth protection laws;

c) unreasonably harass other Users;

d) use Content that is protected by law (e.g. copyright law, trademark law, patent law or design law) without being permitted to do so, or promote, offer and/or distribute products or services that are protected by law without being permitted to do so;

e) conduct or encourage actions that violate competition laws;

f) publish or distribute any kind of malware, including viruses and spyware or any other form of program code.

3.4 Users shall take adequate measures to avert and reduce damages. In particular, Users, must regularly create backup copies of data processed over Graphotate. Non-compliance with these obligations is deemed as contributory responsibility.

4. User Content

4.1 Graphotate Users may submit Content to Merck, including, without limitation, videos and pictures (collectivly refered to as „Content“).

4.2 The User shall be solely responsible for any uploaded Content by the User and the consequences of submitting the Content to Graphotate. The User affirms, represents, and warrants that the User owns or has the necessary licenses, rights, consents, and permissions to submit the Content in accordance with these Terms of Use; and the User licenses to Merck all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for usage on Graphotate pursuant to these Terms of Use.

4.3 The User retains all of the ownership rights in User‘s Content. However, by submitting Content to Graphotate, the User hereby grants Merck a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the services of Merck (and its successors' and affiliates') or all of the services (and derivative works thereof) in any media and data formats. The User also hereby grants each User, to whom he grants access to the Content in his account, a non-exclusive license to access his Content through the service of Graphotate, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the service and under these Terms of Use. The above licenses granted by the User in the Content he submits to Graphotate terminates within a commercially reasonable time after he removes or deletes his Content or account from Graphotate. The User understands and agrees, however, that Merck may retain, but not display, distribute, or perform, server copies of his Content that have been removed or deleted.

4.4 The User further agrees that he will not submit to Graphotate any Content or other material that is contrary to the obligations under 3.3 of these Terms of Use, or contrary to applicable local, national, and international laws and regulations.

4.5 Merck does not endorse any Content submitted to Graphotate by any User or other licensor, or any opinion, recommendation, or advice expressed therein, and Merck expressly disclaims any and all liability in connection with Content. Merck does not permit copyright infringing activities and infringement of intellectual property rights on Graphotate, and Merck will remove all Content if properly notified that such Content infringes on another's intellectual property rights. Merck reserves the right to remove Content without prior notice.

5. Beta Phase

5.1 In the closed Beta Phase, only Users who request access via the Graphotate Homepage can be granted access to the service provided by Merck. The User acknowledges that in the Beta Phase Graphotate is not a live system and therefore there may be any bugs, errors, malfunctions in the service.

5.2 For the Beta Phase no payments have to be made and no costs are incurred for the User.

6.Liability

6.1 Merck’s contractual and statutory liability for damages caused by slight negligence shall, irrespective of its legal ground, be limited as follows:

a) Merck shall be liable up to the amount of the foreseeable damages typical for this type of contract due to a breach of material contractual obligations;

b) Merck shall not be liable for the slightly negligent breach of any other applicable duty of care.

6.2 The aforesaid limitations of liability shall not apply to any mandatory statutory liability, in particular to liability for the willful misconduct, liability under the German Product Liability Act (Produkthaftungsgesetz), and liability for culpably caused personal injuries. In addition, such limitations of liability shall not apply if and to the extent Merck has assumed a specific guarantee.

6.3 The User is obliged to take reasonable efforts for the prevention and minimization of damages.

7. Data Protection

We abide by our Data Privacy Declaration here.

8. Term, Termination

8.1 Either party’s right for termination for good cause remains unaffected.

8.2 If an User asks for deletion of his/her account or his/her profile this will be deemed a termination declaration with regard to all Content. In case of a termination of the account the registration including the profile of the User will be extinguished within 30 days and the User loses the right to access Graphotate. The User data stored within Graphotate in connection with an User account will be stored for 30 days after termination so that it can be retrieved by the User. Thereafter, the data will be deleted.

8.3 We reserve the right to temporarily or permanently block and/or revoke the User’s access in case of violations of these Terms of Use without providing reasons and to terminate the agreement of use for cause. The latter applies in particular if the User

a) provides wrong details at registration, and/or

b) discloses access data, in particular the password, without being authorized to do so.

9. Changes to the Terms of Use

9.1 Merck expressively reserves the right to make reasonable changes to the Terms of Use. Any registered User will be notified by us about any changes to these Terms of Use by email message. If the User does not reject to those changes in text form (e.g. email, fax) within four weeks after receipt of the notification, the changes are deemed to be agreed. We will expressly notify the User about the right to reject and the consequences of being silent. Relevant for the timeliness of the objection is the date on which it is received by Merck.

9.2 If the User rejects, we reserve the right to terminate any account. In such case the User must immediately stop using Graphotate.

10. Miscellaneous

10.1 The agreement of use, including these Terms of Use, is the entire agreement of the parties with respect to the subject matter of the agreement of use and supersedes all prior agreements, written or oral, between the parties with respect to the subject matter of this agreement of use.

10.2 Deviating, conflicting or supplementing terms and conditions of the User shall only become part of the agreement if explicitly accepted by us in writing. Our mere knowledge of the User’s terms and conditions does not make them part of the agreement

10.3 Any amendments and additions to the agreement of use as well as notifications necessary for its execution require text form to be effective. The text form requirement can only be overruled in text form.

11. Applicable Law and Jurisdiction

11.1 German law shall apply under the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

11.2 Provided the User is a merchant, a legal person under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with this agreement shall be Darmstadt. The same applies if the place of general jurisdiction of the User is not in Germany or the User’s residence or habitual domicile is moved abroad after the agreement is concluded or his residence or habitual domicile is unknown when proceedings are instituted. Arbitration proceedings are excluded.

11.3 If one of the provisions of these Terms of Use or any provision in other agreements should be or become invalid, this shall not affect the validity of all other provisions or agreements.

12. Customer Service / Complaints

12.1 Users may use the contact details set out in Section 1.1 above in case of questions or complaints.

12.2 Beyond that, Merck does not and is not obligated to participate in alternative dispute resolution procedures before an alternative dispute resolution entity for consumers.

13. No right of withdrawal

The User does not have a right of withdrawal. This applies even in case the User is a consumer, because the User has in the course of the subscription process (i) expressly consented to the beginning of the performance before the end of the withdrawal period and (ii) acknowledged that he/she loses his/her right of withdrawal when giving his/her consent to the beginning of the performance.