TERMS AND CONDITIONS
These Terms of Service (the “Terms”) describe your rights and responsibilities when using the BreachRx software as a service platform (the “Services”). Please read them carefully. BreachRx (“Company”) agrees to provide you (“Customer”) with access to use the Services and Customer agrees to use Services pursuant to these Terms and any “Agreement” agreed to and signed in writing by both Company and Customer. If any Customer-specific terms apply to Customer, those terms are also incorporated herein by reference.
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will provide Customer the Services. Company hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right and license to access the Services specified in the Services Agreement or in Customer’s account during the Subscription Period. Should the Subscription Period end, or should Customer decline to renew their Services Agreement, then Customer’s license to the Services specified in the Services Agreement will be revoked.
1.2 The period of access to the Services will be specified in the applicable Order Form (“Order Form”) and if no Order Form is executed, or no period is specified, the Service Term (“Service Term”) will be twelve (12) months. At the end of the Initial Service Term, the Service Term will automatically renew for successive twelve (12) month terms, unless Customer notifies Company in writing ninety (90) days prior to the termination of the current Service Term, or as otherwise specified in an Order Form. Any renewals will be at Company’s then-current rates.
1.3 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice.
1.4 Subject to the terms of this Agreement, Company will provide Customer a limited license to access Company Services application programming interfaces (“APIs”) and documentation only as necessary to develop, test and support integrations of your applications with Services.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know- how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2.2 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.3 Customer shall not provide sell, rent, lease, sublicense, loan, redistribute, syndicate, or delegate access to APIs beyond Customer users without the Company’s prior written consent. Customer agrees they will not: (a) access APIs or documentation in violation of any law or regulation; (b) access APIs in any manner that (i) compromises, breaks or circumvents any of Company technical processes or security measures associated with the Services, (ii) poses a security vulnerability to customers or users of the Services, or (iii) tests the vulnerability of our systems or networks; (c) access APIs or documentation in order to replicate or compete with the Services; (d) attempt to reverse engineer or otherwise derive source code, trade secrets, or know-how of APIs or Services; or (e) attempt to use APIs in a manner that exceeds rate limits, or constitutes excessive or abusive usage.
2.4 Company shall use commercially reasonable technical and organizational measures, including disaster recovery and business continuity procedures, designed to: (a) ensure the security and integrity of all forms of data or communication made available to Company by the Customer or individuals authorized by Customer to use the Services or who have been supplied passwords by Customer (“Customer Data”) , and (b) protect against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data. Notice of any actual or reasonably suspected access to Customer Data within Company’s care, custody, or control will be provided within forty-eight (48) hours of discovery. In relation to any “Personal Information” as defined in applicable data protection laws, processed in connection with the performance of this Agreement, Company will only process the Personal Information: (i) to the extent, and in such manner, as is necessary in order to comply with obligations under this Agreement; (ii) in accordance with Customer’s instructions (unless otherwise required in compliance with applicable laws); (iii) for the duration of the term of the Agreement, unless otherwise instructed by Customer. Company shall ensure that access to Personal Information is limited to those personnel or subcontractors who (i) need to access the Personal Information to meet its obligations under the Agreement, and (ii) are bound by terms as restrictive as those set out under this Agreement. Company will be liable for any violation of applicable laws by its personnel or subcontractors.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes Customer Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public other than as a result of breach of this Agreement, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law, provided that, to the extent legally permissible, the Receiving Party provides the Disclosing Party with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist the Disclosing Party in obtaining (at the Disclosing Party’s expense), a protective order preventing or limiting the disclosure of Proprietary Information. In any event, the Receiving Party shall make such disclosure only to the extent required and shall use reasonable efforts to ensure that confidential treatment is afforded to any Proprietary Information so disclosed.
3.2 Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or Software, and (c) all intellectual property rights related to any of the foregoing. In the event Customer provides Company with feedback and reports about any errors, problems, or defects in, or suggestions for changes and improvement to the Services (“Feedback”), Customer hereby grants to Company an irrevocable, fully-paid up, non-exclusive, royalty-free, perpetual and worldwide license to use, reproduce, distribute, create derivative works of, publicly perform, and publicly display such Feedback in any medium or format, whether now known or later developed.
3.3 Notwithstanding anything to the contrary, Company shall have the right to collect aggregated and anonymous data and learnings regarding Customer’s use of the Service. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 Full payment for undisputed invoices issued in any given month must be received by Company thirty (30) days after Customer’s receipt of such invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than taxes based on Company’s net income.
5. TERM AND TERMINATION
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be renewed, for additional periods of the same duration as the Initial Service Term, or as otherwise specified in an Order Form, at Company’s then current rates. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Following delivery of such notice, Company shall have thirty (30) days to cure the issues provided in such notice. Except where this Agreement is terminated for Company’s breach, Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall (i) provide the Services in conformance with any documentation supplied or made available to Customer by Company and in accordance with all applicable laws, (ii) use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services, and (iii) perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
7.1 Each party shall indemnify, defend and hold harmless the other, and its shareholders, members, board of directors, board of managers, officers, employees, agents and representatives (each, an “Indemnified Party”) at all times from and after the Effective Date against any liability, loss, damages (including punitive damages), claim, settlement payment, cost and expense, interest, award, judgment, diminution in value, fine, fee, and penalty, or other charge, including reasonable legal expenses, arising out of or relating to any claim by an unaffiliated third party (i) alleging that the use in accordance with this Agreement of the Software infringes or misappropriates any copyright, patent, trademark, trade secret, right of privacy of an unaffiliated third party, or violate or contradict any law or any order of a court or administrative tribunal of such unaffiliated third party, or (ii) that arises or is alleged to have arisen out of the gross negligence or intentional misconduct of the indemnifying party (each a “Third Party Claim”). Notwithstanding the foregoing, if the Software becomes the subject of such a claim of infringement then Company may, at its option: (a) procure for Customer the right to use the Software free of any liability for infringement; (b) replace or modify the Software to make it non-infringing but with reasonably comparable functionality; or (c) if Company determines that the previous two options are not available on a commercially reasonable basis, grant to Customer a credit for the unused portion of any prepaid access rights fees and refund any deposits paid by Customer for the affected Software. Furthermore, Company has no liability for, and no obligation to indemnify Customer against, any Third Party Claim arising or alleging based in whole or in part on use of the Software other than as specified in this Agreement, or its Documentation, including use with third party hardware and software products not specifically authorized by Company.
7.2 The Indemnified Party shall promptly notify the indemnifying party in writing of any Third Party Claim, stating the nature and basis of the Third Party Claim, to the extent known. The indemnifying party shall have sole control over the defense and settlement of any Third Party Claim, provided that, within 15 days after receipt of the above-described notice, the indemnifying party notifies the Indemnified Party of its election to so assume full control. The foregoing notwithstanding, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel at its own expense to assist in the handling of such claim, except that the Indemnified Party’s legal expenses in exercising this right shall be deemed legal expenses subject to indemnification hereunder to the extent that (a) the indemnifying party fails or refuses to assume control over the defense of the Third Party Claim within the time period set forth above; (b) the Indemnified Party deems it reasonably necessary to file an answer or take similar action to prevent the entry of a default judgment, temporary restraining order, or preliminary injunction against it; or (c) representation of both parties by the same counsel would, in the opinion of that counsel, constitute a conflict of interest. The Indemnifying Party shall not settle any such Third Party Claim without the written consent of the Indemnified Party, except for a complete settlement requiring only the payment of money damages to be paid by the Indemnifying Party.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF ITS OBLIGATIONS UNDER SECTION 2, 3, OR 6 OF THIS AGREEMENT, BODILY INJURY OF A PERSON, EACH PARTY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either party without the other party’s prior written consent; provided that either Party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets without such consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws the State of Delaware without regard to its conflict of laws provisions.
Last Updated: November 3, 2023