This Master Subscription Agreement (the “Agreement”) by and between CUSTOMER (“CUSTOMER”) and BioData Inc. (“BioData”) with a principal place of business at 625 Massachusetts Avenue, Cambridge, MA 02139, USA (individually a “Party” and collectively the “Parties”) shall be effective upon the receipt of the Initial Order Form as defined under this Agreement (the “Effective Date”).
Recitals:
a. Whereas BioData has developed and licenses to users its software programs marketed under the name Labguru (the "Software").
b. Whereas, CUSTOMER currently desires to obtain licenses, services and deliverables which shall be set forth in the Initial Order Form governed by this Agreement (the “Initial Order Form”) and executed by the parties.
c. Whereas, CUSTOMER may desire to obtain from BioData additional licenses, services and deliverables from time to time under additional Order Forms (“Order Form”) and the parties desire to set forth the terms and conditions on which such license shall be provided and services will be performed
Now, therefore, in consideration of the mutual covenants herein contained the Parties agree as follows:
BioData shall create a Subscription Account (“Subscription Account”) to access Labguru to support CUSTOMER based on its Software and in accordance with the requirements as described in Schedule A-1.
Unless terminated sooner by either Party in accordance with the terms of this Agreement, the term of this Agreement shall commence on the Effective Date and end on the one year anniversary of the Effective Date (the “Initial Term”; and, collectively with all Renewal Terms, the “Term”); provided, that the then-current term shall automatically renew for additional one year periods (each such extension, a “Renewal Term”) unless either party provides written notice of its intent not to renew at least 60 days prior to the end of the then-current term. This is not a perpetual license. Accordingly, additional licenses must be procured to continue utilizing the Software beyond the previously purchased annual period. For each Renewal Term, CUSTOMER shall pay a license fee equal to the then-current list price for the licensed software (the “Renewal Fee”).
3.1 BioData hereby grants to CUSTOMER a one year, non-exclusive, non-transferable license to (i) run, distribute (solely to the extent the distribution occurs in connection with the normal operation of the software by CUSTOMER personnel when accessed through a browser), use, and interact with the computer-executable version of the Software for the number of named CUSTOMER users purchased in applicable Order Forms, and (ii) use the user manual provided to CUSTOMER regarding the Software (the “Documentation”), in each case, solely for its own internal purposes and in compliance with the other terms and conditions of this Agreement.
3.2 The rights granted hereunder shall terminate in the event of any failure to pay any fees or other amounts due hereunder in a timely manner or in the event of the termination or expiration of this Agreement. CUSTOMER will cooperate with BioData and take commercially reasonable steps to prevent the unauthorized use of or access to the Software. The license does not include, and CUSTOMER shall not be entitled to have access to, any source code with respect to the Software or any other deliverable. CUSTOMER shall not have any right, title, or interest in the Software or any other property of BioData except for those rights expressly granted to CUSTOMER hereunder. BioData reserves all rights not expressly granted by it to CUSTOMER under this Agreement.
3.3 Use of the Software by the CUSTOMER is subject to the terms of this Agreement, including the Software Terms of Service attached as Exhibit B and the Privacy Policy attached at Exhibit C (each of which form part of this Agreement).
4.1 CUSTOMER shall not take any actions, or cause any actions to be taken, to bypass (or attempt to bypass) the named user limitations. CUSTOMER shall not modify, disassemble, decompile, license or sublicense the Software (unless permitted by applicable law), or transfer or convey the Software or any right in the Software to anyone else without the prior written consent of BioData. CUSTOMER shall not remove any proprietary rights notices from the Software or Documentation, and all such copies shall be and at all times shall remain the property of BioData and subject to the terms and conditions of this Agreement.
4.2 Notwithstanding anything to the contrary contained herein, CUSTOMER shall not have the right to (a) resell the Software, Documentation or any other property of BioData; (b) grant any license to, or permit any third party the right to use, the Software, Documentation, or other property of BioData; (c) use the Software, Documentation or other property of BioData in any service bureau or time sharing arrangement for the benefit of a third-party; (d) make the Software or Documentation available as an application service provider for a third-party’s use. CUSTOMER shall not sell, transfer, publish, disclose, display, copy, or otherwise make available to any third party, or translate or make derivative works of, the Software or Documentation except as expressly permitted by this Agreement. CUSTOMER shall not take, or permit any person other than BioData to take, any action to cause the Software to interact with any software program or database, or to otherwise make use of any application program interfaces (APIs) within the Software, except to the extent BioData performs the services which permit the interaction or BioData otherwise grants its prior written consent unless Customer has licensed access to the APIs through an Order Form for the Labguru API and makes use of the APIs in accordance with the documentation provided with the product.
5.1 Support Services. Subject to the payment of all amounts due hereunder, CUSTOMER shall be entitled to receive the support and maintenance services set forth on Exhibit A with respect to the Software during the Term in accordance with the applicable terms and conditions.
5.2 Professional Services. Any services other than Support Services (“Professional Services”) shall be provided pursuant to the terms of separate Order Form executed by and between BioData and CUSTOMER and, unless otherwise agreed in writing, shall be provided on a time and materials basis. Fees for such Professional Services will be in addition to the Fee described in Section 8. The following are in addition to any specific conditions that may appear in an Order Form.
(a) Changes to Order Forms. An Order Form may only be modified or amended in an Order Form amendment executed by a duly authorized representative of each of BioData and CUSTOMER, which amendment shall set forth, if applicable, the proposed change, the rationale for the change and the expected effects, if any, the change will have on the project cost, schedule and other matters.
(b) Order of Precedence. If there is any conflict among the Agreement and any Order Form, the conflict will be resolved by giving effect first to the Agreement and second to the Order Form, except the Order Form will control as to the particulars of the work to be performed. An Order Form may modify the terms of the Agreement only with respect to Services under that particular Order Form, and only if the Order Form expressly identifies the Section of the Agreement intended to be modified.
6.1 Authorization. BioData represents and warrants to CUSTOMER that: (a) BioData is a corporation duly organized, validly existing and in good standing under the laws of the State of Massachusetts; (b) it has full power and authority to enter into this Agreement and to consummate the transactions and perform its obligations contemplated hereby; (c) the execution, delivery and performance by BioData of this Agreement have been duly authorized by all requisite corporate action; and (d) this Agreement has been duly executed and delivered by BioData and constitutes a valid and binding agreement of it, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable principles.
6.2 Warranty of Title. BioData hereby represents and warrants to CUSTOMER that BioData is the owner of the Software or otherwise has the right to grant to CUSTOMER the rights set forth in this Agreement. In the event any breach or threatened breach of the foregoing representation and warranty, CUSTOMER 's sole remedy shall be to require BioData to either: (i) promptly procure, at BioData’s expense, the right to use the Software, or (ii) promptly replace the Software or any part thereof that is in breach and replace it with Software of comparable functionality that does not cause any breach. If BioData is unable to undertake the applicable foregoing action within thirty (30) days of CUSTOMER’s election of the same in writing, then, CUSTOMER’s sole remedy shall be to terminate this Agreement and receive a refund of a pro rata portion of the current year’s license fee.
6.3 Warranty of Functionality. While covered by a valid annual license agreement, BioData warrants that the Software shall perform in all material respects according to the functional specifications set forth on Schedule A-1 (the “Specifications”) when used with the appropriate computer equipment as specified in such Specifications or in this Agreement and all attachments hereto. In the event of any breach or alleged breach of this warranty, CUSTOMER shall promptly notify BioData. CUSTOMER’s sole remedy shall be that BioData shall promptly correct the Software so that it operates in compliance with the foregoing warranty. (This warranty shall not apply to the Software to the extent modified by anyone other than BioData or if used on an operating environment not approved by BioData or specified in the Specifications or this Agreement and its attachments.) If BioData is unable to make such correction within thirty (30) days of CUSTOMER’s written notice of the need for correction, then, CUSTOMER’s sole remedy shall be to terminate this Agreement and receive a refund of a pro rata portion of the current year’s license fee.
6.4 Compliance with Laws. BioData represents and warrants to CUSTOMER that the Software does not violate any applicable laws. BioData further represents and warrants to CUSTOMER that in performing any services hereunder, BioData shall perform such services in such a manner so as to not violate any applicable laws.
6.5 Services. BioData represents and warrants that all services shall be performed in accordance with current, sound and generally accepted industry practices by personnel who are experienced in the appropriate fields.
6.6 No Challenges. BioData represents and warrants to CUSTOMER that there is no proceeding pending or, to the knowledge of BioData, threatened which challenges its ownership of or right to use the Software in the manner contemplated hereby or to perform the services hereunder.
6.7 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT, BIODATA MAKES, AND CUSTOMER RECEIVES FROM BIODATA, NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO ANY SOFTWARE, DOCUMENTATION, THIRD PARTY SOFTWARE OR SERVICES. BIODATA SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
7.1 General. CUSTOMER represents and warrants to BioData that: (a) CUSTOMER is a corporation duly organized, validly existing and in good standing under the laws pursuant to which it is incorporated; (b) it has full power and authority to enter into this Agreement and to consummate the transactions and perform its obligations contemplated hereby; (c) the execution, delivery and performance by CUSTOMER of this Agreement have been duly authorized by all requisite corporate action; and (d) this Agreement has been duly executed and delivered by CUSTOMER and constitutes a valid and binding agreement of it, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable principles.
7.2 Data Protection and Privacy Policy. CUSTOMER represents and warrants that it: (a) shall comply with any and all applicable data privacy and data protection laws; and (b) shall not, directly or indirectly, use the Software in any manner that violates such Legislation. If CUSTOMER uses or intends to use the Software to collect, create, transmit, store or process any information subject to protection under applicable foreign and domestic data privacy laws, rules and regulations (collectively, “Sensitive Information”), then CUSTOMER shall enter into any additional agreements with BioData as may be required to protect the confidentiality and security of the Sensitive Information. The CUSTOMER’S breach of any obligation, representation or warranty set forth in this Section 7 shall be considered a material breach of the Agreement and BioData shall have the right to immediately terminate this Agreement. In addition, BioData and the Customer shall comply at all times with the Privacy Policy at Exhibit C.
As compensation for licenses, services and deliverables provided under the applicable Order Form, CUSTOMER shall pay BioData the fee set forth in each Order Form (“Fee”). Any amounts not received on or before the due date therefor shall bear interest at a rate equal to the lesser of (a) 1.5% per month, and (b) the maximum amount permitted under applicable law. All Fees and payments shall be in U.S. currency, unless otherwise expressly agreed by the parties in writing. CUSTOMER shall promptly reimburse BioData for any costs of collection (including attorneys fees and court costs) incurred by BioData in seeking any amounts due hereunder. CUSTOMER shall pay any sales taxes, use taxes, goods and services taxes or other similar sales taxes or customs/import fees which are applicable on the licenses and services provided to CUSTOMER. To the extent collected by BioData, BioData agrees to timely remit any such taxes to the proper authorities. Each party shall be responsible for its own taxes that are based upon its net or gross income or capital.
All payments shall be made according to the Payment Terms established in the applicable Order Form.
10.1 Definition of Confidential Information. All nonpublic data and information (including trade secrets, functional and technical specifications, source code, designs, drawings, translations, analysis, research, processes, computer programs and routines, beta versions, algorithms, methods, ideas, “know how,” and other technical information, sales and marketing research, materials, plans, projects, and other business information, accounting and financial information, personnel records, other information concerning the products, services and business of the parties, and information concerning third-party suppliers or customers of the parties) of a party hereto that is disclosed or made available (in writing, orally, visually, electronically or otherwise) to the other party hereto pursuant to this Agreement and that (a) due to its character or nature, reasonable people in a like position and under like circumstances would consider to be confidential; or (b) has been reduced to tangible or written form and marked as confidential or proprietary or, if disclosed orally or visually, was identified as confidential by the disclosing party at the time of such disclosure; provided, however, that Confidential Information does not include any data or information which (1) is already known to the receiving party at the time of first disclosure, as evidenced by written records existing at the time of first disclosure, without restriction as to use or disclosure, (2) has become generally known to the public through no wrongful act of the receiving party; (3) has been rightfully received by the receiving party from a third party without restriction as to use or disclosure and without a breach of an obligation of confidentiality running directly or indirectly to the other party hereto; or (4) is independently developed by the receiving party without use, directly or indirectly, of the Confidential Information received from the other party hereto. The terms and conditions of this Agreement shall be deemed Confidential Information of BioData.
10.2 Confidentiality Obligations. Any party receiving Confidential Information from the other (a “Receiving Party”) shall use the Confidential Information of the party disclosing the same (a “Disclosing Party”) solely to fulfill its obligations and exercise its rights under this Agreement and, without the prior written consent of the Disclosing Party (or as otherwise permitted hereunder), shall not disclose any of the Disclosing Party’s Confidential Information to any third party. Except as otherwise provided in the Agreement, all Confidential Information of the Disclosing Party shall remain at all times the sole and exclusive property of the Disclosing Party. The Receiving Party shall use the same measures used to protect the Disclosing Party’s Confidential Information as it uses to protect its own Confidential Information, but in no event less than commercially reasonable measures. The Receiving Party shall give the Disclosing Party notice immediately upon learning of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information.
10.3 Return of Confidential Information. The Receiving Party (including without limitation any consultant, outsourcing vendor, representative or agent of such Receiving Party), promptly upon the request of the Disclosing Party, shall destroy or return to the Disclosing Party all of the Disclosing Party Confidential Information, if any, in its possession or control; provided, that CUSTOMER need only return or irretrievably delete the Software and Documentation, and any copies thereof, at such time as this Agreement is terminated or expires. At the request of the Disclosing Party, the Receiving Party shall certify to the Disclosing Party its compliance with the foregoing in writing.
10.4 Permitted Disclosures. If the Receiving party (including its respective directors, officers, employees, representatives, consultants, outsourcing vendors, contractors or agents) is requested or required by a valid discovery request, subpoena, court order or governmental action to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall unless legally prohibited, provide the Disclosing Party with prompt written notice of such request or requirement so that the Disclosing Party may seek an appropriate protective order or other remedy. If such protective order or other remedy is not obtained, the Receiving Party shall be permitted to disclose only the minimum amount of Confidential Information that is legally required to be disclosed to comply with the legal obligation as determined by such party’s legal counsel and such disclosure shall not be deemed a breach of this Agreement.
This Agreement shall not be construed to prevent BioData from performing similar services for other customers, including without limitation the development of Laboratory Management Systems or from CUSTOMER using laboratory management software or related products of a third party.
12.2 Notice, Defense, and Settlement. In the event of a third party Claim against an Indemnitee for which the Indemnitees are entitled to indemnification from BioData hereunder, (a) CUSTOMER shall give BioData reasonably prompt written notice of any such third-party Claim stating the nature and basis of such Claim and the amount thereof, in reasonable detail, to the extent then known by the Indemnitee; provided, that any failure or delay by CUSTOMER in providing such notice will not relieve BioData of its obligations hereunder except to the extent that such delay or failure adversely affects Biodata’s ability to defend against, minimize or eliminate losses arising out of such Claim; (b) BioData shall have the right to control the defense and settlement of such Claim; and (c) the Indemnitees shall reasonably cooperate with BioData in the defense or settlement of any such Claim at BioData’s expense. Notwithstanding the foregoing, BioData shall not consent to the entry of any judgment, or enter into any settlement, with respect to any Claim, without the prior written consent of the Indemnitee, not to be unreasonably withheld, conditioned or delayed; provided, that no consent shall be necessary to the extent the entry of judgment or settlement (w) includes an unconditional release of the Indemnitee with respect to such Claim; (x) does not acknowledge or lay blame or fault on the Indemnitee; (y) does not impose any monetary obligations other than those to be paid by BioData and (z) does not prevent CUSTOMER from continuing to use the Software on the terms and conditions set forth herein or otherwise impose any non-monetary restrictions or prohibitions on CUSTOMER. The foregoing shall not prohibit CUSTOMER from participating in the defense or settlement of any such Claim at its own expense and with its own choice of counsel but subject to, at all times, control of the defense and settlement remaining with BioData.
12.3 Additional Obligations for Infringement Claims. Should the Software become, or in BioData’s reasonable opinion be likely to become, the subject of an Infringement Claim, BioData shall have the right, at its own expense, to: (a) obtain for CUSTOMER the right to continue using the Software at issue, pursuant to the terms and conditions of this Agreement, or (b) replace or modify the Software at issue so that it becomes non-infringing but substantially equivalent in function and performance. If BioData is unable to or does not perform under (a) or (b) within a reasonable time after CUSTOMER has provided notice of the same to BioData and the same is not the result of an Infringement Exception, CUSTOMER may terminate this Agreement. In the event that BioData determines it is not commercially reasonable to perform under (a) or (b), then BioData may terminate this Agreement. In the event of any such termination (whether initiated by CUSTOMER or BioData), BioData shall refund to CUSTOMER a pro rata portion of the current year’s license fee. For the avoidance of doubt, the foregoing obligations of BioData shall not apply with respect to Infringement Exceptions.
12.4 Infringement Exceptions. Notwithstanding anything herein to the contrary, BioData shall have no obligation, and shall not be responsible for, any Claim (a) to the extent that such claim (1) is based upon any CUSTOMER or Indemnitee equipment, software, or intellectual property contributing to the actual or alleged infringement; (2) is based on a patent (unless BioData had actual knowledge of such patent as of the Effective Date); or (3) results from compliance with any method or process required to meet requirements or specifications requested by CUSTOMER, (b) if CUSTOMER has modified, or has had any third-party modify, the Software or Documentation, (c) is based upon a use of the Software or Documentation that is in any way other than as intended and permitted by this Agreement; (d) to the extent that such Claim or any damages related thereto arise from CUSTOMER’s or an Affiliate’s failure to use a work-around or substitute for the Software or Documentation at issue, which substitute or work-around is reasonable in light of the circumstances and was provided by BioData to CUSTOMER, or (e) to the extent that such Claim or any damages related thereto would not have arisen had CUSTOMER been using the most currently available version or release of the Software (each of the foregoing being an “Infringement Exception”). CUSTOMER hereby agrees to indemnify, defend and hold BioData and its Affiliates and their respective officers, directors, employees and agents (the “BioData Indemnitees”) harmless from and against any Claims arising from (i) an Infringement Exception; (ii) any materials, content, hyperlinks or other information provided by CUSTOMER to BioData for use in connection with the performance of its services hereunder; (iii) any grossly negligent act or omission or any willful misconduct of CUSTOMER, or (iv) the products, services or sale or offering for sale of any products or services by CUSTOMER. In the case where CUSTOMER becomes the indemnifying party, the provisions of Section 12.2 shall apply mutatis mutandis.
12.5 Allocation of Risk. The Parties agree and acknowledge that the foregoing provisions of this Section 12 reflect the allocation of risk between the parties and sets forth CUSTOMER’s sole and exclusive rights and remedies, and BioData’s sole and exclusive obligations and liability, under this Agreement with respect to any infringement, misappropriation, dilution or other violation of the intellectual property rights of any third party. Pricing under this Agreement was determined based upon the provisions of this Section 12. The obligations contained in this Section 12 shall terminate on the third anniversary of the expiration or termination of this Agreement.
13.1 AGGREGATE LIABILITY. SUBJECT ONLY TO SECTION 13.3, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BIODATA ARISING FROM OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY BIODATA FROM CUSTOMER HEREUNDER DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD. SUBJECT TO SECTION 13.3 AND EXCEPT FOR CUSTOMER‘S OBLIGATIONS TO PAY FEES DUE HEREUNDER AND ANY COST OF COLLECTION ASSOCIATED THEREWITH, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CUSTOMER ARISING FROM OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY BIODATA FROM CUSTOMER HEREUNDER DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD.
13.2 CONSEQUENTIAL DAMAGES. SUBJECT TO SECTION 13.3, IN NO EVENT SHALL BIODATA BE LIABLE TO CUSTOMER, OR CUSTOMER BE LIABLE TO BIODATA, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE LOSSES OR DAMAGES (INCLUDING LOSSES OR DAMAGES FOR ANY LOST REVENUES, PROFITS, OR DATA), EVEN IF SUCH PARTY HAS BEEN ADVISED OR MADE AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES AND REGARDLESS OF WHETHER THE CLAIM IS BASED ON PERFORMANCE OR NON-PERFORMANCE OF THE SOFTWARE PRODUCT OR ANY OTHER DELIVERABLE, BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY, OR OTHER THEORY OF LIABILITY.
13.3 EXCEPTIONS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE LIMITS OF LIABILITY SET FORTH IN THIS SECTION 13 AND OTHERWISE IN THIS AGREEMENT SHALL NOT APPLY TO (I) CUSTOMER‘S OR BIODATA’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 12; (II) A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, (III) ANY PERSONAL INJURY, DEATH OR PROPERTY DAMAGE CAUSED BY A PARTY, (IV) CUSTOMER‘S BREACH OF THE LICENSE GRANTED BY BIODATA HEREUNDER, OR (V) ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY A PARTY.
4.1 Termination for Cause. This Agreement may be terminated by BioData immediately upon written notice if CUSTOMER materially breaches this Agreement and CUSTOMER fails to cure such breach within thirty (30) days (or, in the case of non-payment, five (5) days) from receipt by CUSTOMER of a first written notice that sets forth the material breach. This Agreement may be terminated by CUSTOMER immediately upon written notice if BioData materially breaches this Agreement and BioData fails to cure such breach within thirty (30) days from receipt of a first written notice that sets forth the material breach.
14.2 Consequences of Termination or Expiration. Upon termination or expiration of this Agreement, CUSTOMER agrees to (i) immediately cease all use of the Software and Documentation, (ii) deliver promptly to BioData all copies of the Software and Documentation and other materials, information, equipment, technical configurations and specifications supplied by BioData in connection with this Agreement or irretrievably deletes all of the same, and (iii) certify to BioData in writing that it has complied with each of items (i) and (ii).
14.3 Survival. Termination or expiration of this Agreement shall not affect any right or remedy under this Agreement to the extent the same had accrued prior to the termination date. Sections 3.2, 4, 5, 6.6, 8, 10, 11, 12, 13, 14 and 15 (as well as such other provisions as are necessary to interpret the foregoing) shall survive any expiration or termination of this Agreement.
5.1 Entire Agreement; Amendments; Waivers. This Agreement (including and along with the Exhibits attached hereto) constitutes the entire agreement between BioData and CUSTOMER with respect to the subject matter hereof and supersedes any and all prior agreements, statements, purchase orders, covenants, understandings, representations, warranties, and undertakings, whether written or oral, between them regarding such matters. This Agreement may not be amended, in whole or in part, except by an instrument in writing signed by both BioData and CUSTOMER. Failure of either party to insist upon strict compliance with any part of this Agreement shall not be considered a waiver of such compliance and shall not prevent either party from subsequently insisting upon strict compliance or from exercising its, his or her rights hereunder with respect to any past, present or future instances of non-compliance. Any waiver must be in writing to be effective.
15.2 Assignment. Neither Party may assign any rights or delegate any duties under the Agreement without the other Party’s prior written approval. Notwithstanding the foregoing, without the consent of the other Party, a Party may assign this Agreement (i) to an entity which controls or is under common control with such Party, or (ii) to a third party that purchases all or substantially all of the assets of such Party; provided, that, in either case, the assignee is not a competitor of the other Party. The assigning Party shall provide notice of any such assignment at least ten (10) days prior to such assignment becoming effective. No assignment shall serve as a novation or expand the rights of the licensee hereunder (including, without limitation, the number of concurrent users). Assignments in violation of the foregoing shall be void ab initio.
15.3 Notices. Any reports, notices, payments or other communication required by this Agreement shall be sent to the addresses established or amended by the applicable Order Form or to such other address as such other Party shall designate by written notice. All notices will be deemed given or delivered (a) in the case of hand delivery, when actually received, (b) in the case of facsimile, on the first Business Day after the date on which successful confirmation of the transmission of the facsimile occurs, (c) in the case of overnight courier, on the next Business Day following delivery to such courier; and (d) in the case of any other form of deliver, upon receipt.
15.6 Export Control Laws; Government Users.
(a) CUSTOMER shall not use or otherwise export or re-export any of the Software or other deliverables except as authorized by United States law and, if CUSTOMER obtained the such products outside of the United States, the laws of the jurisdiction in which CUSTOMER acquired such products. Such products may not be exported or re-exported (i) into any United States embargoed countries or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Department of Commerce Denied Person’s List or Entity List. By execution of this Agreement, CUSTOMER represents and warrants to BioData that CUSTOMER is not located in any such country or identified on any such list. CUSTOMER shall be responsible for and shall pay (or reimburse BioData for) all United States and foreign export and import duties, fees, and other governmental charges, however designated, which are imposed on CUSTOMER‘s implementation, license, or use of the Software or Documentation outside the United States.
(b) The products licensed under this Agreement or resulting from services purchased or performed under this Agreement and any related documentation are “commercial items,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire such products with only those rights expressly set forth in this Agreement.
15.7 Publicity. CUSTOMER hereby grants permission to BioData to issue a Press Release about the successful Labguru installation on a date mutually agreed upon in writing upon the completion of this Project. In addition, CUSTOMER hereby grants BioData the rights to name CUSTOMER as a customer of BioData on its website and to identify CUSTOMER by its trademark.
15.8 Force Majeure. Except in the case of non-payment, neither party shall be liable to the other for any failure or delay in the performance under this Agreement caused by events beyond the control and without the fault or negligence of the party affected or its employees, representatives, agents or contractors and which said party is unable to prevent or provide against by the exercise of reasonable diligence including: acts of God, war, civil disturbances, riots, floods, fires, explosions or other catastrophes.
15.9 Remedies. Except as otherwise provided herein, all remedies available to either party for one or more breaches by the other party are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies. The failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches, unless such waiver shall be in writing and signed by the party against whom enforcement is sought.
15.10 Modification and Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be deemed modified to the extent necessary to make it enforceable under applicable law. If any such provision is not enforceable as set forth in the preceding sentence, the unenforceability of such provision shall not affect the other provisions of this Agreement, but this Agreement shall be construed as if such unenforceable provision had never been contained herein. In such instance, the parties shall replace such unenforceable provision with a provision as close as possible to the original meaning and intent of such unenforceable provision while still being enforceable.
15.11 Construction. The Section headings in this Agreement are for convenience of reference only, will not be deemed to be a part of this Agreement, and will not be referred to in connection with the construction or interpretation of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party will not be used in the construction or interpretation of this Agreement. As used in this Agreement, the words “include” and “including” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” Unless expressly stated otherwise, whenever a Party’s approval or consent is required under this Agreement, such Party may grant or withhold its consent or approval in its discretion, and references in this Agreement to a Party’s “discretion” mean such Party’s sole and absolute discretion. Except as expressly stated otherwise, all references in this Agreement to “Sections” are intended to refer to Sections of this Agreement. The English language version of this Agreement will be used in construing and interpreting this Agreement if this Agreement is ever translated into any other language.
15.12 Counterparts; Facsimile Signature Pages. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but which collectively will constitute one and the same instrument. A signature sent by telecopy or facsimile transmission shall be as valid and binding upon the Party as an original signature of such Party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.
Ariel Yarnitsky, CEO Name:
Title: CEO Title:
Date_____________________ Date_____________________
Exhibit A: Support & Maintenance Services
This Exhibit A establishes the terms and conditions under which BioData agrees to provide Support Services for the Software during the Term.
Support Hours are as follows: 9:00 a.m. – 5:00 p.m. Central European Time (Monday - Friday except legal holidays); except that, solely with respect to Critical Errors, support is provided 24 hours a day, 7 days a week.
(a) Critical – CUSTOMER experiences a complete loss of use of the Software, or a critical functionality of the Software is unavailable or is severely restricted. Work cannot reasonably continue, the operation is mission critical to the business and the situation is an emergency.
(b) Serious – CUSTOMER experiences a loss of non-critical, but major, functionality of the Software. The impact is an inconvenience, which may require a workaround to restore functionality.
(c) Request – CUSTOMER experiences non-critical, minor errors in functionality of the Software as well as all other issues that cannot be properly classified as Critical Errors or Serious Errors. The result does not impede the operation of a system
Response Time Commitments:
|
Severity |
Response Time |
Support Mode |
Resolution Target Time |
|
Critical |
4 hours |
Continuous until restored. Thereafter, BioData will work during standard operating hours until resolved. |
As quickly as possible, with updates every 4 hours. |
|
Serious |
Next business day |
Non-continuous until resolved. |
As quickly as possible, with daily updates. |
|
Request |
One week |
Non-continuous. |
If an Error, corrected in an Update or New Release. Otherwise, as BioData deems reasonably appropriate. |
(a) Continuous – BioData support staff works on the Issue on a 24x7 basis.
(b) Non-continuous – BioData support staff works on the Error during normal hours of operation.
Resolution Status:
(b) Resolved – The Software is operating in substantial conformance with the Documentation in all material respects.
BioData will escalate Critical Errors that are unresolved after the designated period of time as follows:
|
Escalation Guidelines for Critical Support Services Requests |
|
|
Elapsed Time |
Escalation Contact |
|
> 8 hours |
Project Sponsor |
|
> 24 hours |
Project Manager |
|
> 48 hours |
CEO |
BioData shall, on their own schedule, provide to CUSTOMER any Updates and New Releases (including any new Documentation) that BioData may develop for the Software to the extent such Updates and New Releases are generally released for production use at no additional charge to BioData’s other Software licensees during the Term. These Updates are provided to CUSTOMER at no additional charge contemporaneously with the relevant Update being made available to BioData’s other customers. BioData shall promptly notify CUSTOMER from time to time as Updates and New Releases become available. All Updates and New Releases will be subject to the applicable provisions in the Agreement. As BioData issues Updates and New Releases, BioData will install the Update. BioData may elect to make available training or technical assistance in connection with any Update or New Release, which will be available at an additional cost to CUSTOMER unless BioData determines otherwise.
Notwithstanding anything herein to the contrary, BioData’s obligation to provide Support Services for the Software is subject to the following conditions:
CUSTOMER shall be in compliance with all of the terms of the Agreement including the timely payment of all fees and the Software being used by CUSTOMER in accordance with the terms and conditions of this Agreement.
BioData shall store and archive (a) the data, information and other content input by customer into the software (“data”), and (b) customer’s results from use of the software in connection with the data (“results”, and collectively with the data, “customer data and results”) twenty-four (24) hours per day, seven (7) days per week, excluding downtime for scheduled and unscheduled maintenance not to exceed eight (8) hours per calendar month. BioData may use a third party hosting provider to provide the hosting services provided that BioData remains responsible at all times for such third party hosting provider’s compliance with this Agreement.
In addition to the capitalized terms otherwise defined in this Agreement, the capitalized terms listed below mean the following throughout this Agreement:
Error: Any failure of the Software, or a defect in the Software, that (i) (a) renders the Software Product inoperable or materially impairs its functionality or performance or (b) that causes it not to conform to applicable Specifications in a material way, and (ii) is reproducible by BioData on its master version of the Software.
[End of Exhibit A]
These Software Terms of Service apply to the Customer’s use of the Software. In the event of a conflict between the main body of the Master Subscription Agreement and these Software Terms of Service, the former shall prevail.
For the purpose of these Software Terms of Service:
"you/your" means the Customer; and
"we/our/us/BioData" means BioData Inc.
Account: an account registered under your Plan (as defined below) for the Service (as defined below).
Content: any content appearing on the Service posted by BioData or on its behalf.
Data: all electronic data or information submitted by you (or a User) to the Service.
Malicious Code: means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs of a destructive nature.
Plan: the pricing and usage plan set out on the Order Form(s).
Service: the Software and any other services described in the Order Form(s).
User: an individual authorised by you to use the Service under your Plan.
2.1 You may not access the Service through automated methods. Use of robots or other computer code which calls the Service, except where explicitly allowed, is absolutely forbidden.
2.2 Each User must provide his/her legal full name, a valid email address, and any other information requested in order to complete the signup process and create a login.
2.3 Each login may only be used by one User. A single login shared by multiple Users is not permitted. You may create separate logins for as many Users as your Plan allows.
2.4 You are responsible for maintaining the security of each User's Account and password and you shall ensure that each User complies with these Terms. We cannot and will not be liable for any loss or damage from your (or your Users') failure to comply with these Terms.
2.5 You are responsible for all Data posted and all activity that occurs under your Users’ Accounts.
3.1 Your Plan shall commence once we have confirmed your subscription or we have provided access for you to use or browse through the Service (whichever is earlier) and remains in effect unless terminated as set forth in this section.
3.2 Either party may terminate an Account at any time, subject to these Software Terms of Service. You may do so by clicking on the Account link (your Account name) in the global navigation bar at the top of the screen, and then by clicking Settings. You are solely responsible for properly cancelling your Account. An email or phone request to cancel your Account is not considered cancellation and may result in a delay in the cancellation process. Where you terminate an Account, we shall have no obligation to refund any advance payment that you have made.
3.3 Upon request by you made within 30 days after cancelling an Account, we will make available to you for download a file of Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, we shall have no obligation to maintain or provide any Data and shall thereafter, unless legally prohibited, be entitled to delete all Data in our systems or otherwise in our possession or under our control or retain such data in our sole discretion subject to the provisions of any applicable law.
We reserve the right at any time and from time to time to temporarily suspend the Service (or any part thereof) for the purposes of planned or emergency maintenance or upgrades. We perform scheduled maintenance during the hours of 06:00 – 16:00 GMT on Sundays, and outside of these hours shall endeavour to give you reasonable advance notice of any such suspension wherever practicable.
5.1 Data uploaded or otherwise submitted to the Service by you or Users is determined entirely by you and you are solely responsible for such Data. We make no representation regarding Data, including its accuracy, copyright compliance, legality or decency. BioData explicitly disclaims any responsibility for Data. You warrant that you (and your Users) have all necessary rights and permissions to upload any Data in accordance with these Terms.
5.2 You will retain all ownership rights in any of Data that you transmit to us or post to the Service (each a "Submission" or collectively "Submissions"), and BioData will not use, reproduce, publish, distribute or display your Submissions owned by you and stored on our Service for BioData's commercial, marketing or any similar purpose without your consent.
5.3 All information, content and/or material posted on the Service by BioData or its authorized partners ("Materials") are the property of BioData, its third party providers and/or any other user that posts information on the Service on its behalf, which retains all rights, title and interests in and to such Materials and all intellectual property rights relating thereto, including without limitations all copyright, patent, trademarks, logos, design rights and any other proprietary rights.
Your use of the Service as well as certain other information about you is subject to the terms and conditions of our Privacy Policy as set out at Exhibit C below.
7.1 Without limiting any of the other provisions of this Agreement, BioData’s name, logos, product and Service names and any other trademarks, and/or domain names and/or trade names included in the Service are trademarks, trade names or service marks of BioData (collectively, "Trademarks ") or any of its affiliates. You agree not to display or use, in any manner, any of the Trademarks without BioData’s prior written consent. All other third party trademarks, service marks, logos and trade names appearing on any services which are part of the Service are the property of their respective owners. No transfer or grant of any rights under any Trademarks is made or is to be implied by any provision of this Agreement or by any other provision contained in the Service, and all rights in such Trademarks is reserved by BioData or respective holders.
You expressly agree not to use the Service in a manner that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation. You acknowledge that prohibited conduct includes, but is not limited to, use of the Service to invade the privacy of third parties, transmitting or uploading abusive, profane, libellous, slanderous, threatening or otherwise harassing material via the Service, transmitting or uploading any Malicious Code or other similar materials onto the Service, or reproducing, sending or distributing to or through the Service any Unsolicited Commercial Email (UCE) or SPAM or material protected by copyright, privacy or other proprietary right without first obtaining the written permission of the owner thereof. You expressly agree not to damage, alter or modify the Service or any content thereof. You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, BioData, or any other BioData service. You agree not to take any action that might compromise the security of the Service, render the Service inaccessible to others or otherwise cause damage to the Service or its Materials. You are prohibited from engaging in any activities designed to harass, or that will cause a denial-of-service (e.g., synchronized number sequence attacks) to any other user whether on Service network or on another provider’s network.
Your Users may order or use services or merchandise through the Websites from third parties not affiliated with BioData (''Third Party Vendors''). All matters concerning such services and merchandise desired from Third Party Vendors, including but not limited to purchase terms, payment terms, warranties, guarantees, license terms, maintenance and delivery, are solely between the Third Party Vendors and the User and should be directed to such particular Third Party Vendor. BioData makes no warranties or representations whatsoever with regard to any such services or merchandise provided by Third Party Vendors. Your Users will not consider BioData, nor will BioData be construed, as a party to, or a third party beneficiary of, such transactions, whether or not BioData may have received revenue or other remuneration in connection with the transaction. BioData will not be liable to you or your Users for any costs or damages incurred by you or your Users or any other person with respect to or arising out of such transactions with Third Party Vendors.
BioData is not responsible for the content on the Internet or World Wide Web pages that are contained outside the Websites. As a convenience to our customers, BioData provides links to many resources. BioData makes no representations as to the quality, suitability, functionality or legality of any websites to which BioData may provide links, and you hereby waive any claim you or your Users may have against BioData with respect to any such websites.
In this Privacy Policy “BioData”, “we” and “us” mean BioData Ltd. and/or BioData Inc. and any of their affiliated companies. BioData respects the privacy of its users. The terms set forth below will set forth and explain the principles of the privacy policy practiced by BioData in relation to the website owned, operated, licensed, and/or controlled by BioData, located at www.labguru.com (the “Website(s)”) and any of the services provided by and/or via any of these Website applications available via any of these Websites (“Services”). Amongst other things, the terms hereunder will provide details as to the manner in which BioData shall use any information provided by any user within the framework of such user’s visits and use of the Website and/or Services, or the information collected by BioData during your visiting and use of the Website and/or Services.
For the avoidance of doubt, in any instance in which any of the terms “User”, “You”, “Your” are used in this privacy policy, the meaning is to any person using, or who has used, the Website and/or any of the Services provided by and/or via this website, regardless whether such term is used in singular or plural.
BioData may collect various types of information as defined below (individually and collectively the “Information”):
BioData may use the Information for internal purposes, such as for website administration, data analytics, billing, identification, authentication, contact, and compliance purposes. We may also use such Information to evaluate the quality of our products and services and to improve the content of our Website pages and the quality of our Service or under the following circumstances, as defined in the section below.
BioData shall store all the aforesaid Information in its databases, however the use of such information shall only be in accordance with the terms of this privacy policy and in accordance with the provisions of any law, for any one or more of the following purposes, and by using the Website and/or Services, you are expressly agreeing to use of the information for the following purposes:
The Service uses Google Analytics, a web analytics service provided by Google, Inc. (“Google”). Google Analytics uses “cookies”, which are text files placed on your computer, to help the website analyze how users use the site. The information generated by the cookie about your use of the website (including your IP address) will be transmitted to and stored by Google on servers in the United States. In case of activation of the IP anonymization, Google will truncate/anonymize the last octet of the IP address for Member States of the European Union as well as for other parties to the Agreement on the European Economic Area. Only in exceptional cases, the full IP address is sent to and shortened by Google servers in the USA. On behalf of the website provider Google will use this information for the purpose of evaluating your use of the website, compiling reports on website activity for website operators and providing other services relating to website activity and internet usage to the website provider. Google will not associate your IP address with any other data held by Google. You may refuse the use of cookies by selecting the appropriate settings on your browser. However, please note that if you do this, you may not be able to use the full functionality of this website. Furthermore you can prevent Google’s collection and use of data (cookies and IP address) by downloading and installing the browser plug-in available under https://tools.google.com/dlpage/gaoptout?hl=en.
You can refuse the use of Google Analytics by clicking on the following link. An opt-out cookie will be set on the computer, which prevents the future collection of your data when visiting this website:
<a href=“javascript:gaOptout()“>Disable Google Analytics</a>
Further information concerning the terms and conditions of use and data privacy can be found at http://www.google.com/analytics/terms/us.html or at https://www.google.com/policies/.
We do not sell or otherwise disclose to any third party Information about our website visitors, except as described herein. We may share the Information you provide with companies in our group and our joint marketing partners. We may also share the information with service providers we have retained to perform services on our behalf. These service providers are not authorized by us to use or disclose the information except as necessary to perform services on our behalf or to comply with legal requirements.
BioData shall not disclose to any third parties your personal information and/or information collected in connection with your use of the Website and/or Services insofar as such information identifies you personally, except in any of the following occurrences:
We maintain administrative, technical and physical safeguards to protect against loss, misuse or unauthorized access, disclosure, alteration or destruction of the information you provide on our websites.
Data Storage
BioData uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Services. BioData owns the code, databases, and all rights to the Services, and you retain all rights to your data.
BioData implements on the Website and/or Services certain procedures and systems for maintaining the security of information.
It is important to remember that despite the fact that such procedures and systems greatly diminish the risk of any unauthorized pervasions to the system’s computers, they do not provide absolute security. Accordingly, BioData is unable to warrant or undertake that the Website and/or Services will be fully protected against any unauthorized pervasions.
Any person is entitled to access and view, either by themselves, via any representative empowered to do so in writing or via a guardian, information about themselves stored upon the database of BioData. Additionally, such person may be entitled, under applicable laws, to approach BioData and request that the information be corrected or erased and BioData shall act in such circumstances in the manner prescribed under any applicable law.
Additionally, if the information stored in the database of BioData is used by it for the purpose of direct marketing of commercial offers you shall be entitled, subject to the provisions of any applicable law, to notify BioData at the following address support@biodata.com and to demand that BioData delete the foregoing information from its databases. It is clarified that, pursuant to any such notification, BioData shall only delete such information that is required in order to send you such foregoing commercial proposals.
In such case, please note that the information required by BioData for the purpose of managing the Website and/or Services and its business including, without limitation, documentation of commercial and other transactions that you have performed on the Website and/or Services or via the Website and/or Services, shall continue to be stored in the databases as required under any applicable law, but shall not be used for the purpose of approaching you.
[End of Exhibit C]