TERMS OF SERVICE FOR GPSINTEGRATED.COM APPLICATIONS
1. ATTENTION! THE FOLLOWING TERMS AND CONDITIONS WILL BE LEGALLY BINDING ON CUSTOMER UPON EXECUTION OF THE BIOENABLE STANDARD LICENSE AGREEMENT. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE AGREEMENT.
2.Terms of Service. Customer acknowledges and agrees to the following terms of service. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently purchased by the Customer will be subject to this Agreement
2.1 Customer Must Have Internet Access. In order to use the GPSintegrated, Customer must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based content. Customer must also provide all equipment necessary to make such (and maintain such) connection to the World Wide Web.
2.2 Accuracy of Customer’s Registration Information. Customer agrees to provide accurate, current and complete information (“Registration Data”) about Customer as prompted by the registration form, which Customer will fill out online in order to gain access to the GPSintegrated. Customer further agrees to use commercially reasonable efforts to maintain and promptly update the Registration Data to keep it accurate, current and complete. Customer acknowledges and agrees that if Customer provides information that is intentionally inaccurate, not current or incomplete in a material way, or BioEnable has reasonable grounds to believe that such information is untrue, inaccurate, not current or complete in a material way, BioEnable has the right to suspend Customer’s account.
2.3 Email and Notices. Customer agrees to provide BioEnable with Customer’s e-mail address, to promptly provide BioEnable with any changes to Customer’s e-mail address, and to accept emails (or other electronic communications) from BioEnable at the e-mail address Customer specifies. Except as otherwise provided in this Agreement, Customer further agrees that BioEnable may provide any and all notices, statements, and other communications to Customer through either e-mail or posting on the GPSintegrated.
2.4 Passwords, Access, and Notification. Customer may designate up to the number of users under Customer’s account, which corresponds to the number of Seats purchased by Customer, and Customer may provide and assign unique passwords and user names to each authorized user for each Seat purchased. Customer acknowledges and agrees that Customer is prohibited from sharing passwords and/or user names with unauthorized users. Customer will be responsible for the confidentiality and use of Customer’s (including its employees’) passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the GPSintegrated or under Customer’s account. BioEnable will act as though any Electronic Communications it receives under Customer’s passwords, user name, and/or account number will have been sent by Customer. Customer agrees to immediately notify BioEnable if Customer becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords, user names, and/or account number.
2.5 Customer’s Lawful Conduct. The GPSintegrated allows Customer to send Electronic Communications directly to BioEnable and to third-parties. Customer agrees to comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the GPSintegrated, including without limitation those related to privacy, electronic communications, and anti-spam legislation. Customer will not send any Electronic Communications from the GPSintegrated that is unlawful, harassing, libellous, defamatory, or threatening. Except as permitted by this Agreement, no part of the GPSintegrated may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the GPSintegrated by any means other than through the interfaces that are provided by BioEnable. Customer shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the GPSintegrated available to any third party other than an authorized user, including but not limited to, creating Internet Links to the GPSintegrated which include log-in information, including but not limited to, user names, passwords, secure cookies, and/or “mirroring” or “framing” any part of the GPSintegrated. Customer will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including rights of publicity and privacy) without first obtaining the permission of the owner of such rights. Customer will not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by BioEnable. Neither Customer, nor someone acting on Customer’s behalf, will use the GPSintegrated to target for solicitation any BioEnable customers for purposes of providing any competitive product. Customer will ensure that any use of the GPSintegrated by Customer’s employees (or users) is in accordance with the terms and conditions of this Agreement.
2.6 Third-Party Software. Customer agrees to use software produced by third parties, including, but not limited to, “browser” software that supports a data security protocol compatible with the protocol used by BioEnable. Customer acknowledges that BioEnable is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks not owned or operated by BioEnable or telecommunications facilities, including, but not limited to, the Internet.
2.7 Transmission of Data. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to Customer’s use of the GPSintegrated. Customer expressly consents to BioEnable’s interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by BioEnable. Customer acknowledges and understands that changes to Customer’s Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Customer agrees that BioEnable is not responsible for any Electronic Communications and/or Customer Data which are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by BioEnable.
2.8 Links. The GPSintegrated may provide, or third parties may provide, links to other World Wide Web sites or resources. Because BioEnable has no control over such sites and resources, Customer acknowledges and agrees that BioEnable is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources.
2.9 BioEnable’s Support. BioEnable will make commercially reasonable efforts to promote Customer’s successful utilization of the GPSintegrated, including but not limited to providing Customer with User Guides, Knowledge Base and online help, as well as optional and “for fee” training classes. BioEnable also offers Customer Support and Professional Services consultation. Customer acknowledges that BioEnable has extensive experience helping Customers improve utilization and realization of benefits of the GPSintegrated, and that not following the advice of BioEnable in these areas may substantially undermine Customer’s successful utilization of the GPSintegrated.
2.10 Proprietary Rights. Customer acknowledges and agrees that the Service and any necessary software used in connection with the GPSintegrated contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Customer further acknowledges and agrees that content or information presented to Customer through the GPSintegrated or by advertisers may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
2.11 Trademark Information. BioEnable, GPSintegrated the BioEnable log, and other BioEnable service marks, logos and product and service names are marks of BioEnable (the “BioEnable Marks”). Customer agrees not to display or use the BioEnable Marks in any manner without the owner’s express prior written permission.
2.12 Confidential Information. For purposes of this Agreement, confidential information shall include the terms of this Agreement, Customer Data, and any information that is clearly identified in writing at the time of disclosure as confidential (“Confidential Information”). Each party agrees: (a) to keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations hereunder; and (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). BioEnable will restrict its employees’ access to Customer’s Confidential Information to only those employees necessary to successfully provide the Service. BioEnable may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for BioEnable in connection with the performance of this Agreement. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section 2.12 will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure. With respect to any information received by either party from the other as a result of any other relationship between the parties other than as licensor and licensee under this Agreement (i.e., business development, partnership, alliance, etc.), the parties will abide by the terms and conditions of any Nondisclosure Agreement (or similar agreement) executed between the parties.
2.13 Storage Limits. BioEnable currently limits the amount of database storage to 100MB. Any customers using database storage in excess of this limit will be charged additional fees.
3.1Warranty Of Functionality. BioEnable warrants to Customer during the Term of this Agreement that the GPSintegrated will achieve in all material respects the functionality described in the User Guides and in other related documentation (available at www.BioEnable.com or successor Web site) and that such functionality will be maintained in all material respects in subsequent upgrades to the GPSintegrated. BioEnable does not warrant that the Service will be error-free. Customer’s sole and exclusive remedy for BioEnable’s breach of this warranty shall be that BioEnable shall be required to use commercially reasonable efforts to modify the GPSintegrated to achieve in all material respects the functionality described in the User Guides and other related documentation and if BioEnable is unable to restore such functionality Customer shall be entitled to terminate the Agreement and shall be entitled to receive a pro-rata refund of the license fees paid for under the Agreement for its use of the Service but which use has not yet been furnished by BioEnable as of the date of such termination. BioEnable shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to [email protected]
3.2 Service Level Warranty. BioEnable warrants during the Term of this Agreement that the GPSintegrated will meet the service levels outlined in Exhibit A hereto in any month. In the event that BioEnable fails to meet the service levels outlined in Exhibit A hereto, Customer’s sole and exclusive remedy is that BioEnable will provide Customer with a credit as described in Exhibit A, which is hereby incorporated by reference. Any credit is expressly conditioned upon Customer providing BioEnable written notice of such failure sent to [email protected] by the tenth day of the month following such service level failure.
3.3 Security, Data Maintenance And Backup Warranty. BioEnable warrants during the Term of this Agreement that BioEnable will use commercially reasonable efforts to ensure that Customer’s Data will be safeguarded and maintained accurately. BioEnable also warrants that it will, at a minimum, utilize and maintain security and backup procedures as listed in Exhibit B hereto (and hereby incorporated by reference) to protect Customer Data. In the event of a breach of this provision, BioEnable will use commercially reasonable efforts to correct the Customer’s Data or restore the Customer’s Data within three (3) business days. In the event BioEnable is unable to correct or restore Customer’s Data as provided in this Section 3.3, Customer’s sole and exclusive remedy shall be it may at its option terminate the Agreement and receive a pro-rata refund of the license fees paid for under the Agreement for its use of the Service but which use has not yet been furnished by BioEnable as of the date of such termination.
3.4 Non-Infringement Warranty. BioEnable warrants that it is the sole owner and has full power and authority to grant the license and use of the GPSintegrated and other rights granted by the Agreement to Customer with respect to the GPSintegrated and that neither the performance by Customer in its utilization of the GPSintegrated, nor the license of and authorized use by Customer of the GPSintegrated as described herein will in any way constitute an infringement or other violation of any copyright, trade secret, trademark, patent, invention, proprietary information, non-disclosure, or other rights of any third party.
3.5 Other Warranty. BioEnable warrants that the Service shall be free of viruses, Trojan horses, worms, spyware, or other malicious code or components.
4.Disclaimer Of Warranties. EXCEPT AS STATED IN SECTION 3 ABOVE, BIOENABLE DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE GPSINTEGRATED WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE GPSINTEGRATED WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE GPSINTEGRATED AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY BIOENABLE. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTION 3 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
5.Limitations Of Liability. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH BIOENABLE IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY BIOENABLE OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CUSTOMER DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT. The maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, tort, or otherwise, shall in no case exceed the equivalent of 12 months in license fees applicable at the time of the event. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of consideration levied in connection with the license of the GPSintegrated and that, were BioEnable to assume any further liability other than as set forth herein; such consideration would of necessity be set substantially higher. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 6 BELOW.
6.1 Infringement. BioEnable will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer which arise out of or result from the infringement of any copyright, patent, trademark, or misappropriation of a trade secret relating to the GPSintegrated; provided that Customer (a) promptly gives BioEnable notice of the claim, suit, action, or proceeding; (b) gives BioEnable sole control of the defense and related settlement negotiations; and (c) provides BioEnable with all reasonably available information and assistance necessary to perform BioEnable’s obligations under this paragraph. If the GPSintegrated is held to infringe any intellectual property right, BioEnable may, in its sole discretion and at its own expense, either procure a license that will protect Customer against such claim without cost to Customer or replace the Service with a non-infringing Service. Provided that BioEnable complies with this Section 6.1, Customer shall have no remedy against BioEnable, except it may at its option terminate the Agreement and receive a pro-rata refund of the license fees paid for under the Agreement for its use of the Service but which use has not yet been furnished by BioEnable as of the date of such termination.
6.2 Disclosure Of Customer Data. BioEnable will fully indemnify, defend and hold Customer harmless from and against any Losses arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer which arise out of or result from BioEnable’s gross negligence in preventing unauthorized access to confidential Customer data, or BioEnable’s willful disclosure of such confidential Customer data, as determined by a court of competent jurisdiction in connection with a claim by a third party alleging a breach of confidentiality. In addition, BioEnable will indemnify Customer up to an amount equal to five (5) times the equivalent of 12 months of license fees applicable at the time of the event, from and against any Losses incurred by Customer with respect to any third party claim, suit, action, or proceeding arising out of or relating to BioEnable’s breach of Section 2.12 of this Agreement (which breach that does not rise to the level of gross negligence in preventing unauthorized access to confidential Customer Data or BioEnable’s willful disclosure of such confidential Customer Data as described in Section 6.2). BioEnable’s indemnification obligations under this Section 6.2 are expressly premised upon Customer (a) promptly giving BioEnable notice of any such third party claim, suit, action, or proceeding; (b) giving BioEnable sole control of the defense and related settlement negotiations; and (c) promptly providing BioEnable with all reasonably available information and assistance necessary to perform BioEnable’s obligations under this Section 6.2. Provided that BioEnable complies with this Section 6.2, Customer shall have no remedy against BioEnable, except it may at its option terminate the Agreement and receive a pro-rata refund of the license fees paid for under the Agreement for its use of the GPSintegrated but which use has not yet been furnished by BioEnable as of the date of such termination.
6.3 Customer’s Indemnity. Customer shall defend and hold BioEnable harmless from and against any and all Losses arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against BioEnable which arise out of or result from a claim by a third-party (i) alleging that the Customer Data or any Trademarks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or (ii) arising out of Customer’s breach of Section 2.5 and 2.12 above, provided that BioEnable (a) promptly provides Customer notice of the claim, suit, action, or proceeding; (b) gives Customer sole control of the defense and related settlement negotiations; and (c) provides Customer with all reasonably available information and assistance necessary to perform Customer’s obligations under this paragraph.
6.4 Survival. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for one year.
7.1 Suspension For Delinquent Account. BioEnable reserves the right to suspend Customer’s access and/or use of the GPSintegrated for any accounts for which any payment is due but unpaid but only after BioEnable has provided Customer three (3) email notices over no less than a thirty (30) day period. Customer agrees that BioEnable shall not be liable to Customer nor to any third party for any suspension of the Service resulting from Customer’s non-payment of fees as described in this Section 7.1.
7.2 Suspension For Ongoing Harm. Customer agrees that BioEnable may with reasonably contemporaneous telephonic notice to Customer suspend Customer’s access to the GPSintegrated if BioEnable reasonably concludes that Customer use of the GPSintegrated is causing immediate and ongoing harm to BioEnable or others. In the extraordinary event that BioEnable suspends Customer’s access to the GPSintegrated, BioEnable will use commercially reasonable efforts to resolve the issues causing the suspension of Service. Customer agrees that BioEnable shall not be liable to Customer or to any third party for any suspension of the Service under such circumstances as described in this Section 7.2.
7.3 In The Event of Breach. Either party may terminate this Agreement upon thirty (30) days written notice to the other party in the event of a breach of any provision of this Agreement by the other party, provided that, during the thirty (30) day period, the breaching party fails to cure such breach. Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated as a result of a breach on BioEnable’s part, BioEnable shall refund the pro rata portion of any fee that may have been paid by Customer for the portion of the Service not furnished to Customer.
7.4 Handling Of Customer Data In The Event Of Termination. Customer acknowledges and agrees that following termination of Customer’s account and/or use of the GPSintegrated, BioEnable may immediately deactivate Customer’s account and that following a reasonable period of not less than 90 days shall be able to delete Customer’s account and related Customer Data. However, in the event that Customer’s Service with BioEnable terminates, BioEnable will grant Customer temporary, limited access to the GPSintegrated for the sole purpose of permitting Customer to retrieve lawful Customer Data, provided that Customer has paid in full all good faith undisputed amounts owed to BioEnable. Customer further agrees that BioEnable shall not be liable to Customer or to any third party for any termination of Customer access to the GPSintegrated or deletion of Customer Data, provided that BioEnable is in compliance with the terms of this Section 7.4.
8. Modification To Or Discontinuation Of The Service. BioEnable reserves the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereof). In the event that BioEnable modifies the Service in a manner which removes or disables a feature or functionality on which Customer materially relies, BioEnable, at Customer’s request, shall use commercially reasonable efforts to substantially restore such functionality to Customer. In the event that BioEnable is unable to substantially restore such functionality, Customer shall have the right to terminate the Agreement and receive a pro-rata refund of the license fees paid under the Agreement for use of the GPSintegrated which was aid for by Customer but not yet furnished by BioEnable as of the date of such termination. Customer acknowledges that BioEnable reserves the right to discontinue offering the Service at the conclusion of Customer’s then current Term. Customer agrees that BioEnable shall not be liable to Customer or to any third party for any modification of the Service as described in this Section 8.
9. Modification To The Terms Of Service. BioEnable reserves the right at any time and from time to time to modify these Terms of Service.