Terms of use
Terms of Service BioStrand Retrieve and Relate App
BIOSTRAND BV is a company incorporated under Belgian Law, having its registered offices in Belgium, 3930 Hamont-Achel, Fabrieksstraat 7, and with enterprise number 0719.913.907, hereinafter “BIOSTRAND” or the “Provider”.
Within the BIOSTRAND group a technology has been developed that relates to the identification of characteristic biological sequences in proteins, RNA and DNA, and their different information layers (hereafter HYFTSTM), which sequences and information layers are contained in a proprietary knowledge database. This knowledge database of HYFTSTM and HYFTTM patterns and all related IP are licensed to BIOSTRAND, allowing BIOSTRAND to commercialize a related software service, i.e. the Retrieve and Relate application as a SAAS.
In the Retrieve and Relate application, HYFTSTM are identified in a set of input sequence data of the Customer, which typically are strings of DNA, RNA or proteins. The input data are indexed, i.e. organized and centered around the HYFTSTM. Then these input data, which are now organized and indexed, can be compared with selected Third Party Databases which BIOSTRAND equally processed and indexed according to the same HYFTTM principles in its Reference Database. This turns sequence alignment and assembly into a simple, fast and improved operation. Alternatively, the Customer can enter a text query and receive sequences related to its query from the Reference Database.
The Customer wants to use this service and therefore agrees to be bound by the Terms of Service laid down in this document.
Every contractual relationship between BIOSTRAND and the Customer, hereinafter both referred to as a “Party”, together as the “Parties”, shall be governed by the Terms of Service. By entering into an agreement with BIOSTRAND, the Customer acknowledges to have read and accepted these Terms of Service. The Terms of Service always take precedence over the terms and conditions of the Customer, even if they stipulate that they are the only valid conditions. BIOSTRAND and the Customer thus agree as follows:
OVERVIEW
I. INTRODUCTORY PROVISIONS
1. Definitions
2. Scope of the Agreement
3. Relationship between Parties
II. ACCESS TO AND USE OF TOOL AND SERVICES
4. Delivery and Acceptance
5. Access Rights and Limitations
6. Permitted use of Results and Restrictions on Use
III. INTELLECTUAL PROPERTY RIGHTS
7. Intellectual Property Rights
IV. THIRD PARTY MATERIALS
8. Third Party Materials
V. WARRANTIES
9. Warranties
10. IP Claims
VI. FINANCIAL OBLIGATIONS
11. Price and Payment
VII. TERM AND TERMINATION
12. Term and Termination
13. Effects of Termination
VIII. LIABILITY
14. Limitation of Liability – General
15. Limitation of Liability – Tool and Services
IX. COMPLIANCE
16. Privacy Policy and Consent with Use of Data
17. Confidential Information
18. Export and Legal Compliance
19. Portfolio
X. GENERAL PROVISIONS
20. Entire Agreement
21. Waivers
22. Void or Unenforceable Provisions
23. Force Majeure
24. Notices
25. Governing Law and Jurisdiction
I. INTRODUCTORY PROVISIONS
1. Definitions
1.1. “Access Rights” mean all contractual rights to access the Tool and receive and use the Services supplied by the Provider as well as the licenses defined in Article 5.1. In order to exercise its Access Rights, the Customer receives codes allowing the Customer to open User Accounts. Such codes are referred to as “Access Keys”.
1.2. “Administrator” means the User appointed by a legal entity Customer who is responsible for the Administrator Account;
1.3. “Administrator Account” means the primary user account of the Customer, through which the Customer may (i) create additional accounts for Users by purchasing additional Access Keys, (ii) consult the Terms of Service agreed to, and/or the current Subscription Formula or (iii) set up teams of Customer Users and the case being external users to collaborate and share Results in the Tool;
1.4. “Agreement” means the agreement between the Parties as defined by these Terms of Service. The Agreement can be entered into in the English language;
1.5 “Confidential Information” means any information and data of a confidential nature, disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”), whether in written, oral or any other form, including but not limited to business plans, ideas, proposals, ways of working, specifications, prices, and customers’ and suppliers’ details in connection with this Agreement, the Tool and/or the Services. “Customer Confidential Information” includes the queries entered into the Tool by the Customer and other Customer Data.
The Results are generated by automatic means in the Tool. The Tool can generate similar or same Results upon similar or same queries of other customers. Results are therefore not considered Confidential Information;
1.6. “Customer” means (i) either a natural person in his/her professional capacity entering into this Agreement on its own behalf in order to subscribe to the Services for and allow use of the Tool by him or herself, (ii) either a legal entity entering into this Agreement on its own behalf and in order to subscribe to the Services for and allow use of the Tool by several appointed internal users for which the legal entity assumes full responsibility;
1.7. “Customer Data” means any and all content, information and data – including Personal Data – uploaded to or stored on the Tool by the Customer when using the Services. Customer Data do not include data generated by the Tool as a result of the use of the Tool by the Customer;
1.8. “Customer Personal Data” means any Personal Data uploaded to or stored on the Tool by the Customer that is processed by the Provider on behalf of the Customer in relation to this Agreement including the Results linked to the Customer’s queries if containing Personal Data, but excluding data processed by the Provider for its own purposes as a data controller;
1.9. “Data Protection Laws” mean all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679, hereafter “GDPR”);
1.10. “Documentation” means the technical and functional information provided by the Provider in relation to the Tool and/or Services which can be found [Here];
1.11. “Effective Date” means the date of entering into the Agreement by electronic means. The Agreement is entered into when the Customer has agreed to the Terms of Service by clicking the “I agree” button, has indicated a Subscription Formula and number of Users, confirmed its purchase with a click and paid the corresponding Price via our trusted payment partner. For the free and limited demonstration subscription, no Price has to be paid. The Customer will then receive a confirmation e-mail with the Terms of Service agreed to attached, and with a summary of the chosen Subscription Formula, number of Users and corresponding Price paid. The Terms of Service agreed to, the chosen Subscription Formula and number of Users can at all times be consulted via the Administrator Account.
1.12. “Force Majeure” means all circumstances that at the Effective Date were reasonably unforeseeable and unavoidable, and which prevent a Party from performing the Agreement, or which would make the performance of the Agreement more difficult, financially or otherwise, than would normally be the case (including but not limited to war, pandemics, natural disasters, fire, seizure, delays with or bankruptcy of third parties engaged by the Party, shortage of staff, strikes, organizational circumstances and threat or acts of terrorism).
1.13. “Intellectual Property (IP) Rights” mean all intellectual, industrial and other property rights (irrespective of whether these are registrable/registered or not), including but not limited to copyrights and related rights, trade names, marks, logos, drawings, models, or applications for registration as a drawing or model, rights in inventions, patents, patent applications, domain names, know-how, trade-secrets, as well as rights to databases, computer programs and semi-conductors;
1.14. “IP Claim” means any claim or action brought against the Customer alleging infringement by the Tool and/or Services of any Third Party IP;
1.15. “Performance Data” means technical and related data collected through the use by the Customer of the Tool and used by the Provider to improve the usability of the Tool and/or Services;
1.16. “Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, in accordance with article 4 of the GDPR;
1.17. “Price” means the applicable fees and services pricing defined in Article 11.
1.18 “Provider” means BIOSTRAND BV, a company incorporated under Belgium Law, having its registered offices in Belgium, 3930 Hamont-Achel, Fabrieksstraat 7, and enterprise number 0719.913.907;
1.19. “Reference Database” means a database produced by Provider on the basis of selected Third Party Databases which have been structured and indexed through use of the proprietary HYFTTM knowledge database;
1.20. “Results” mean a data file related to a query containing either sequences similar to a query sequence, either sequences related to a text query such as a term or identifier (e.g. gene name, function, gene ontology, structure). Results may also include a graphic representation of sequences;
1.21. “Services” means all services supplied by the Provider via the Tool;
1.22. “Subscription Formula” means either one of the possible subscriptions explained [Here]. Such subscription can either be a free and limited demonstration subscription, either a paid subscription as described.
1.23. “Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
1.24. “Team Member” means member of a team organized by Customer on the Tool as described in Article 6.1, second paragraph;
1.25. “Term” means the term of this Agreement, commencing and ending in accordance with Article 12;
1.26. “Third Party Databases” mean the list of publicly available databases to be found [Here], the case being as amended from time to time at the Provider’s discretion. In addition and with the Provider’s consent, proprietary databases of Customer or Customer’s suppliers may be introduced by the Customer as Third Party Databases, provided that the Customer takes full responsibility for these databases in accordance with Article 8 and warrants that such proprietary databases (i) are GDPR compliant, (ii) have obtained free informed consent of data subjects where required, and (iii) only work with adequately pseudonymized data;
1.27. “Third Party Materials” mean data, metadata and information contained in Third Party Databases;
1.28. “Third Party IP” means Intellectual Property Rights vested with a person, company or organization that is not a Party to this Agreement;
1.29. “Tool” means the Retrieve and Relate application developed by the Provider that allows with improved accuracy and speed to find Results which become available to Customer under the form of a service to which the Customer subscribes and as described in Documentation;
1.30. “Usage Credit” means the number of days a Customer is allowed to enter into the Tool under the free and limited demonstration subscription referred to in Article 1.23. When the Customer has run out of Usage Credits, the Customer will no longer be able to enter queries into the Tool, until the Customer has entered into a paying Subscription Formula;
1.31. “User” means a person of the Customer, and for a natural person Customer, the Customer itself, that has a User Account;
1.32. “User Account” means the user account opened by an individual user with an Access Key and after acceptance of the BIOSTRAND Privacy Policy and the Use Restrictions. Once opened, the user account can be accessed through his or her personal login and password in order to make use of the Tool and Services.
2. Scope of the Agreement
2.1. The Agreement defines the contractual relationship between the Parties in relation to the Tool, the Customer’s Access Rights and the Services.
By accessing and using the Tool and/or the Services, the Customer acknowledges to have read The Terms of Service and to have agreed to these terms. The Terms of Service always take precedence over the terms and conditions of the Customer, even if they stipulate that they are the only valid conditions.
3. Relationship between Parties
3.1. In the performance of this Agreement the Parties hereto shall be deemed to be independent contract parties, and the employees of one shall not be deemed to be employees of the other. Nothing in this Agreement shall be construed to make either Party an agent, employee, joint venturer, partner or legal representative of the other Party. Each Party shall not have, or represent itself to have, any authority to bind or commit the other Party to any oral or written contract, understanding or obligation.
3.2. The relationship between the Provider and the Customer is a relationship between two professional undertakings. The Agreement cannot be entered into by a consumer. Hence the Customer represents to be either a professional user of the Services, either a legal entity using the Services for professional purposes.
II. ACCESS TO AND USE OF TOOL AND SERVICES
4. Delivery and Acceptance
4.1. Access Rights are considered delivered as of the moment that the Provider provides a number of Access Keys corresponding to the number of Users for which the Customer entered into the Agreement. Upon delivery, the Customer is obliged to carry out a verification on the number of Access Keys. The Customer is obliged to notify the Provider within 48 hours following delivery of any non-conformity. If no complaints are made within such timeframe, the Customer is deemed to have approved and accepted the delivery.
5. Access Rights and Limitations
5.1. As of the Effective Date the Customer shall be granted access to the Tool and Services, which is provided as ‘Software as a Service (SaaS)’. The Supported Web Browsers are to be found in the Documentation.
The Access Rights are granted for the duration of the Agreement, the case being limited to the extent of the free Usage Credits, and solely for the permitted use cases defined in Article 6.1. The Access Rights include a non-exclusive and non-transferable right to use the Tool and receive the Services, as well as a non-exclusive and limited license to use the Reference Database during the Term.
If the Results contain sequences or any information related thereto in a graphic representation, this graphic representation is a copyright work. The Customer receives a non-exclusive license for the duration of copyright protection to reproduce this Result and to communicate it to the public provided that the reproduction and/or communication to the public is accompanied by a correct attribution as follows:
Sequence graphic representation by [BIOSTRAND R&R app], copyright of BIOSTRAND BV, licensed under [Terms of Service].
The Access Rights and licenses of this Article 5.1 are conditional upon the Customer’s strict compliance with Article 6.
5.2. The Customer shall be solely responsible for every use and activity of the Administrator Account and the User Accounts as well as for their protection, confidentiality and security.
Each User Account (including the Administrator Account) belongs to one person only and may therefore not be shared with other persons. The Administrator as well as every User must create a unique password and change it frequently.
6. Permitted use of Results and Restrictions on Use
6.1. The Results must be used solely for the Customer’s own research purposes and not for any other purpose such as but not limited to (i) diagnostic or treatment purposes in relation to patients and/or (ii) to gain or aim to gain information about particular individuals and/or to take decisions involving them. Moreover, the Results must not (iii) be included as regulatory data in regulatory files.
The Customer may however decide to share Results in the Tool with a team organized by the Customer, including both (i) Customer’s Users and the case being (ii) external users engaged by the Customer in the context of a consortium or research collaboration and invited by the Customer to contribute (both referred to as “Team Members”), provided that:
- Such external users have their own User Account with the Tool on their own behalf or on behalf of another legal entity, and
- The Customer takes full responsibility and remains at all times liable under this Agreement, for the actions of the Team Members, whether these are Customer’s Users or invited, external users.
6.2 Unless such restriction is prohibited by applicable law, the Customer shall not:
- obtain, access, use or copy or try to or allow others to obtain, access, use or copy the source code of the Tool;
- reverse engineer, decompile, disassemble, translate or change the Tool, create derivative works based on the Tool or try to discover the trade secrets behind the Tool;
- market, sell, license or otherwise deliver the Tool to any third party or allow the Tool to be used by any third party;
- use the Tool and/or Services for any other purpose than its own research purposes of the Customer;
- use the Tool and Services in a fraudulent manner (such as by making double use of one account by multiple Users, making a false account, using the Tool more than justified on the basis of Usage Credits received, or organizing a denial-of-service attack);
If a court of competent jurisdiction determines that relevant laws in force may imply that certain of the restrictions specified in this Article 6.2 cannot be accepted or can only partly be accepted, then the restrictions will apply to the fullest extent permitted by law.
6.3 The Provider shall have the right but not the obligation, to perform (or have performed by a qualified Third Party), no more than two times during the Agreement, an audit at Customer’s premises or via remote means, to verify Customer’s compliance with its obligations and restrictions under this Agreement. Notice of such audit shall be given upon at least ten (10) business days. Such audit shall be performed during normal business hours and with minimum disruption to Customer’s business. The cost and expenses of the audit shall be borne by the Provider, unless in the event of manifest breach of the Restrictions on Use.
III. INTELLECTUAL PROPERTY RIGHTS
7. Intellectual Property Rights
7.1. The Customer recognizes that all Intellectual Property Rights in the Tool and Services are vested with the Provider or third parties whom the Provider has entered into an agreement with.
7.2. Nothing in this Agreement operates as an assignment, a license or a non-assert of any Intellectual Property Rights from the Provider to the Customer other than the Access Rights and licenses explicitly granted to it in Article 5.1.
7.3. If the Customer provides any suggestions, information or User data to help the Provider improve or modify the Tool and/or the Services (“Feedback”), the Customer agrees to assign to the Provider without any additional consideration the entire worldwide right, title and interest in and to the Feedback provided. All Intellectual Property Rights in improvements and modifications shall belong to the Provider.
IV. THIRD PARTY MATERIALS
8. Third Party Materials
8.1. The Results contain, are at least partially based on or derived from Third Party Materials. The Customer is responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, legality, decency, quality and/or any other aspect of such Third Party Materials amongst which compliance with:
- any rights of third parties including Intellectual Property Rights, personal data protection rights or other rights related to data;
- or any other rights that may be exerted under any applicable legal instrument, national or regional law or regulation, including but not limited to rights on Third Party Materials or parts thereof under the Convention on Biological Diversity or Nagoya Protocol.
Moreover, the Customer must out of its own initiative evaluate, accept and comply with the license terms applicable on the Third Party Databases that the Customer selects.
8.2. The Customer acknowledges and agrees that the Provider does not bear any responsibility related to the Third Party Materials as set out in Article 8.1.
8.3. To the extent the Customer is holding or using in its research activities Results which contain, are at least partially based on or derived from such Third Party Materials, it is done at Customer’s own initiative and risk. The Customer is also responsible for compliance with any applicable laws and rights as set out in Article 8.1 when holding or using the Results. The Customer acknowledges and agrees that the Provider is not responsible for such use or holding of Results by the Customer. The Customer will apply all necessary diligence that can be expected from a professional user when using or holding the Results and/or the Third Party Materials or parts thereof.
8.4 The Customer will defend, indemnify and hold BIOSTRAND harmless against all claims of third parties caused by the Customer’s non-compliance with Article 8 and/or Article 1.26.
8.5. The Provider reserves the right to change, suspend, remove, limit or disable use of any Third Party Materials, at any time, without notice. In no event will the Provider be liable for the removal of any such Third Party Materials from its Reference Database. The Provider may continue to add or remove Third Party Materials, as deemed necessary in its discretion for continuing to generate value with the Tool.
V. WARRANTIES
9. Warranties
9.1. The Provider warrants to the Customer that until the suspension, expiration or termination of this Agreement, the Tool will substantially perform in accordance with the specifications included in the Documentation.
This warranty does not apply in the event of (i) defects caused by improper use by the Customer, (ii) a breach of the Agreement by the Customer or (iii) improper functioning of the internet, cloud computing services contracted by the Provider or of selected Third Party Databases.
In the event of a breach of warranty, the Customer’s sole remedy is, at Provider’s discretion either a new attempt to deliver the Service, and/or free Usage Credits either termination of the Customer’s Access Rights and refund of the Price in proportion to the duration of frustrated use.
9.2. The Customer represents and warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
The Customer also warrants that it will only use the Tool for its own research purposes and not for any other purpose such as (i) diagnostic or treatment purposes in relation to patients, and/or (ii) to gain (or aim to gain) information about particular individuals and/or make decisions involving them. Moreover, the Customer warrants that the Results will not (iii) be included as regulatory data in regulatory files.
9.3. Apart from the limited warranty provided in Article 9.1 and Article 10, the Tool, Services and Results are to the maximum extent permitted by applicable law, provided “as is” and “as available”, “with all faults” and without warranty of any kind, whether express, implied, statutory or otherwise, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose or use, satisfactory quality, accuracy, quiet enjoyment and non-infringement of Third Party Intellectual Property.
10. IP Claims
10.1. To the best of the Provider’s knowledge at the Effective Date, the Tool and the Services do not infringe any Third Party IP.
10.2. If notified promptly of an IP Claim raised against the Customer, the Provider will defend or cause to be defended such action at its expense and will pay:
- any damages directly linked to the infringement and awarded in a final judgment against the Customer in such action, with the exclusion of any punitive damages, as well as;
- the Customer’s reasonable attorney costs,
provided that the Provider shall have sole control of the defense and all settlement negotiations. The Customer will however provide the Provider with all relevant information and assistance at no cost to help the Provider defending or settling the claim.
10.3. In the event that pursuant to an IP Claim a final injunction shall be obtained against the Customer's use of the Tool and the Services, the Provider will at its own option and at its own expense, either:
- procure for the Customer the right to continue using the Tool and the Services; or
- replace or modify the Tool or Services or any part thereof for it to become non-infringing; or
- terminate the Customer’s Access Rights and refund the Price in proportion to the duration of the frustrated use.
10.4. The remedies in articles 10.2 and 10.3 are the entire remedy of the Customer in the event of an IP Claim.
10.5. The Provider shall have no liability under this Article 10, for:
(a) any infringement arising from the modification of the Tool or the Services by the Customer or the User or upon the Customer’s request, or the combination of the Tool or the Services by the Customer or User or upon the Customer’s request, with any other software product or Customer or Third Party Database, where no infringement would have occurred without such modification or combination;
(b) any use of the Tool or Services in a manner non-compliant with the Agreement or after the Term;
(c) any costs or expenses incurred by the Customer without the Provider’s written authorization.
VI. FINANCIAL OBLIGATIONS
11. Price and Payment
11.1. Applicable fees and services pricing (“Price”) are specified under the heading Subscription Formula as set out during the online order process. Unless prior termination of the Agreement, and without prejudice to Provider’s right to terminate Access Rights in accordance with Article 9.1 third paragraph or Article 10.3, Access Rights are granted for one year. A free and limited demonstration subscription is moreover limited to a specific number of free Usage Credits.
11.2. All invoices are payable upfront during the order process. All Prices are in EUR and are exclusive of VAT (Value Added Tax) and all other taxes and duties, with the exception of the Provider’s corporate taxes. All such taxes and duties, which the Provider shall have to pay or collect in connection with this Agreement, shall be paid by the Customer in addition to the Prices to which they relate.
VII. TERM AND TERMINATION
12. Term and Termination
12.1. This Agreement will enter into force on the Effective Date and will remain in effect for the Term or until its termination in accordance with the Agreement. The Term is one year. After one year the Access Keys are no longer valid. The Customer can however renew its subscription online prior to the date of Termination and subject to the then applicable terms of service, in which case a new agreement will replace the Agreement without interruption of service.
12.2. Either Party may terminate this Agreement immediately by written notice upon the occurrence of a “Serious Default”. Each of the following occurrences will constitute a Serious Default under this Agreement:
(a) The Customer, User or Team Member infringes the Intellectual Property Rights of the Provider in the Tool or Services;
(b) Either Party fails to observe any material obligation under this Agreement, and such failure, when capable of being remedied, is not remedied within 30 (thirty) days of receipt of a default notice sent to the Party in breach, by the other Party.
12.3. If the Provider terminates the Access Rights in accordance with Article 9.1, third paragraph or Article 10.3, and is unable to restore Access Rights within 30 (thirty) days, the Agreement will be considered terminated in common agreement and if not already done so, the Price will be refunded by Provider in proportion to the duration of the Customer’s frustrated use.
13. Effects of Termination
13.1. Upon expiration or termination of this Agreement in accordance with Article 12.1 or 12.2, the Access Keys are no longer valid and the Customer and its Users will no longer have Access Rights to the Tool. They cannot enter any new queries any more. The case being, unused free Usage Credits are lost. One month after termination all Access Rights are withdrawn.
13.2. Upon termination in accordance with Article 12.3, Parties will collaborate in order to minimize negative impact on the Customer’s operations. Therefore, if possible Provider will allow Customer to copy Results to its own systems prior to terminating the Customer’s Access Rights.
13.3. The following sections of the Agreement shall survive the termination of the Agreement: the articles on Definitions (1), Intellectual Property Rights (7), Third Party Materials (8), IP Claims (10), Effects of termination (13), Liability (14-15), Confidential Information (17), Governing law and jurisdiction (25).
VIII. LIABILITY
14. Limitation of Liability – General
14.1. All obligations of the Provider under this Agreement are obligations of means. The Provider cannot be held liable for any fault on the part of the Provider or an employee or appointee, except in cases of fraud or gross negligence.
14.2. Except in cases of willful misconduct, the Provider is not liable for consequential damages such as loss of expected profit, reduced sales, increased operating expenses, loss of clientele, damage to reputation or equipment or loss of data that the Customer, the User or third parties might suffer (i) due to any error or negligence on the part of the Provider or (ii) arising out of or related to the use or inability to use the Tool or Services, and this, even if the Provider has been advised of the possibility of such damages.
14.3. The liability of the Provider shall be limited in accordance with Article 9.1., 9.3. and Article 10. Moreover, in any event, the Provider’s entire liability under this Agreement, whether in contract or in tort, shall not exceed:
- the total Price effectively paid for the Services by the Customer under the Agreement, or
- 10.000 EUR,
whichever is the lesser amount.
14.4. The provisions in this Agreement on liability and the limitation or exclusion thereof will apply and remain enforceable except to the extent that any mandatory law or regulation, if applicable, provides otherwise. If a court of competent jurisdiction determines that relevant laws in force may imply warranties and liabilities which cannot be excluded or limited or which can only partly be excluded or limited, then the limit on the Provider’s liability set forth in this Agreement will apply to the fullest extent permitted by law.
14.5. In no event shall Provider have any liability for damages caused by the use of the Results by Customer. The entire liability and risk as to the use of the Results in its business is on the Customer.
15. Limitation of Liability – Tool and Services
15.1. The Provider will make reasonable efforts in order to prevent that the Tool would contain faults, bugs, computer viruses and/or malware. The Provider cannot be held liable for faults, bugs, computer viruses and/or malware, which the Tool would contain despite its efforts.
15.2. Except if and to the extent that this is explicitly provided otherwise in Article 9, the Provider can in no way be held liable for malfunctioning or temporary or permanent unavailability of the Tool and/or the Services or for any damages resulting thereof. The Customer is familiar with and accepts the inherent vulnerability of the Tool as a software product and an Internet based application.
15.3. The Provider is not liable for defects in the Services attributable to inadequate or incorrect input from the Customer, the Users or from third parties.
IX. COMPLIANCE
16. Privacy Policy and Consent with Use of Data
16.1. The Provider in its capacity of controller for the processing of Personal Data, will process Personal Data on the Customer, the Users and Team Members for the purposes of providing the Services and optimizing its services. The Customer will make sure not to provide any Personal Data on itself or its Users or Team Members to the Provider unless the Customer has duly informed said individuals on the processing of their Personal Data in accordance with the BIOSTRAND Privacy Policy Part I. Users will be asked to accept this Privacy Policy when opening their User Account.
Moreover, The BIOSTRAND Privacy Policy Part I also explains the processing operations taking place in the back end of the Tool in order to provide the Services. Apart from the processing that the Provider performs as processor for the Customer (cfr. Article 16.3), information may be processed for the Provider’s own purpose of scientific research for making the Tool’s algorithms smarter and more performing. This information may contain personal data if the processing relates to publicly available Third Party Databases containing human genetic information. The Provider will take appropriate safeguards (such as only work with data that are pseudonymized). If the Third Party Database selected is a proprietary Database of the Customer or a Customer’s supplier that may contain human genetic information, data are anonymized or pseudonymized before being processed for this purpose. Input queries are not processed for this purpose.
The Customer agrees that the Provider may also collect and use Performance Data, such as any User behavior on the Tool and the corresponding response time of the Tool, in order to make any potential adjustments to improve the usability of the Tool. The Provider will aggregate such data to try and make sure that this information does not identify any persons, such as the Customer or User. In case any person would still be identified or identifiable, the above Privacy Policy will apply.
16.2 The Personal Data will not be communicated to third parties, unless to processors of the Provider for the purposes identified above.
16.3. When providing the Services under this Agreement, the Provider may also process Personal Data on behalf of the Customer. In that case, the Provider acts as processor on behalf of the Customer and shall solely act under the Customer’s instruction in relation to the Customer Personal Data. The BIOSTRAND Privacy Policy Part II will apply. The Customer, acting as controller for the processing of the Personal Data, will fully comply with applicable data protection legislation.
In particular, where the Customer includes any human genetic data in a query, the Customer represents that it will have obtained free consent of the individual data subject with such processing. The Customer must also observe the data protection rights of data subjects of whom Personal Data are included in the Results gathered via the Tool and the selected Third Party Databases. The Customer will defend and indemnify Provider and hold Provider harmless in the event of claims against Provider on the basis of non-compliance with data protection legislation caused by the Customer not observing its obligations under Article 16.3.
17. Confidential Information
17.1 Confidential Information as defined in Article 1 does not include any information which
(a) is in the public domain at the time of disclosure.
(b) becomes part of the public domain after disclosure otherwise than through an act or omission of, or breach of this Agreement by the Recipient;
(c) was in the possession of the Recipient in written or other documentary form already at the time of disclosure without any restriction on disclosure and was not acquired directly or indirectly from the Discloser;
(d) is disclosed to the Recipient from a third party who has the right to make such disclosure; or
(e) is independently developed by Recipient without any use of information provided by the Discloser;
17.2. Information shall not be deemed to be in the public domain or in the Recipient's possession merely because it may be embraced in a more general disclosure, or be derived from non-evident combinations of disclosures generally available to the public or in the Recipient's possession.
17.3. All Confidential Information disclosed pursuant to this Agreement
(a) shall be kept strictly confidential by the Recipient;
(b) shall not be published or disclosed to any third party or used by the Recipient without the express prior written consent of the Discloser for any purposes other than:
- the performance of this Agreement; or
- the improvement of usability of the Tool and/or the Services;
(c) shall be held by the Recipient with no lesser degree of care to avoid disclosure to any third party as is used with respect to the Recipient’s own Confidential Information and at least with reasonable care and shall protect all Confidential Information of the Discloser against unauthorized access.
(d) shall be made available by the Recipient only to those of its employees or appointees who strictly need to know the Confidential Information for the performance of the Agreement or the improvement of usability of the Tool and/or the Services. The Recipient shall inform any such employees or appointees of the terms and conditions of this Agreement and shall ensure that such employees or appointees are bound by confidentiality and non-use obligations no less stringent than those included herein;
(e) shall remain the property of the Discloser (along with all copies thereof).
17.4. The Recipient shall have the burden of proof as to any claimed exception to the obligations of confidentiality and non-use provided herein.
17.5. The Confidential Information shall be returned to the Disclosing party (along with all copies thereof) within ninety (90) days of receipt by the Recipient of a written request from the Disclosing Party setting forth the Confidential Information to be returned.
17.6. Upon termination of the Agreement, the Receiving Party shall stop making use of the Confidential Information.
17.7. In the event that any Party is required to disclose Confidential Information of the other Party pursuant to a court order or order of another competent authority, that Party will notify the other of the required disclosure with sufficient time for the latter Party to seek relief, will cooperate in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure.
18. Export and Legal Compliance
18.1. The Customer represents that:
- it is not located in a country that is subject to an EU embargo, or that has been designated by the EU as a “terrorist supporting” country, and
- the Customer or any of its employees, agents, officers or subcontractors are not listed on any EU list of prohibited or restricted parties.
- it will only use the Tool for civil end-uses and it will not use the Tool for any purposes prohibited by applicable law, nor in particular for any purpose connected with chemical or biological or nuclear weapons, or missiles or UAVs capable of delivering such weapons.
18.2. Each Party shall, at its sole cost and expense, obtain and maintain in effect all permits, licenses and other consents necessary to conduct its respective activities hereunder. In particular, the Customer warrants that it shall obtain all export permits and consents required in relation to the transfer to or input in the Tool of genetic or other data that do not fall within the public domain and/or do not stem from public databases.
18.3 The Customer will defend and indemnify the Provider, and will hold the Provider harmless against all claims of third parties caused by the Customer’s non-compliance with Article 18.
19. Portfolio
19.1. The Provider may publicly refer to the identity of the Customer as being a customer of the Provider for the Tool, without however using any logo of the Customer without the latter’s prior and written consent. The Customer will however not unreasonably withhold his/her consent.
X. GENERAL PROVISIONS
20. Entire Agreement
20.1. This Agreement together with the BIOSTRAND Privacy Policy and including the Subscription Formula agreed to, form the entire Agreement between the Parties concerning the scope defined in Article 2. This Agreement replaces and annuls any prior written or oral understanding, agreement, offer, correspondence or proposal regarding the scope of the Agreement. Any adjustment or amendment of this Agreement will only be binding upon Parties if agreed upon in writing and duly signed by both Parties.
21. Waivers
21.1. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of either Party, unless such waiver is done in writing and signed by an officer of the waiving party. No waiver of any provision of this Agreement on one occasion shall constitute a waiver of any other provision or of the same provision on another occasion.
22. Void or Unenforceable Provisions
22.1. Should any provision of this Agreement be void or unenforceable, the other provisions will not be affected by this and remain in full force and effect. In this case Parties, within the limits of the applicable law, will draft a new provision that meets the objectives intended by the void or unenforceable provision, and include this as an appendix to this Agreement.
23. Force Majeure
23.1. Neither Party shall be liable for non-performance or delay in performance of any obligation under this Agreement if such non-performance or delay is caused by an event of Force Majeure. On the occurrence of an event of Force Majeure, the affected Party shall immediately inform the other Party of the event, and the reasons why it is not able to perform any or all of its obligations under the Agreement. If within a period of forty five (45) days, the event continues and the Parties are unable to identify a workable alternative, either Party may terminate this Agreement.
24. Notices
24.1. Any notice given under this contract by either Party may be done via electronic means. The Customer may be contacted via electronic means via the Administrator Account. The Provider may be contacted via e-mail to info [at] biostrand.be.
25. Governing Law and Jurisdiction
25.1. The validity, interpretation, performance and termination of this Agreement shall be governed by Belgian law. No effect shall be given to any choice-of-law or conflict-of-laws rules or provisions, that would cause the laws of any other jurisdiction to be applicable.
25.2. With respect to any dispute arising out of, under, or in connection with this Agreement or the transactions contemplated hereby, the parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction and venue (and waive any claim of forum non conveniens) of the Business Court Antwerp, Belgium. Before instituting proceedings before the Court, Parties will, however, attempt to negotiate in good faith in order to reach an out-of-court settlement.