Terms of Service
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
2.10
Proprietary
Rights. Customer acknowledges and
agrees that the
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.
Warranties.
3.1
Warranty 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
3.2
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. Indemnification.
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
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. Suspension/Termination.
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
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
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
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.
Exhibit A - SERVICE LEVEL AGREEMENT
BioEnable conducts
maintenance and upgrades during scheduled times. The scheduled time for
maintenance and upgrades is Friday and Saturday nights from
BioEnable reserves the
right on approximately a quarterly basis to issue new releases in which BioEnable
adds functionality to the Service. Customer acknowledges that these periodic
major releases can take several hours to complete.
In the event that BioEnable
in its sole discretion determines that any unscheduled maintenance is
necessary, BioEnable will use commercially reasonable efforts to notify
Customer.
Exhibit B - SECURITY
Security Overview
BioEnable's security
strategy is to protect Customer data at multiple levels, which includes data
security, data integrity, and data privacy. BioEnable currently uses products
by Microsoft.
To ensure the privacy,
security, and availability of Customer data and transactions, BioEnable employs
the following technologies in delivering its service.
·
Secure
·
Encrypted User
Authentication
·
Internet Firewalls
·
Network Translation
and Proxy Services
·
Regularly Scheduled
Backups, Offsite Storage
·
Highly Available
Application
·
Secure Operating
Systems
·
Data Security
Data Center Security
BioEnable's production
systems are located in one of the leading co-location facilities in the
Network Security
BioEnable's network is
protected by redundant firewalls and monitored for unauthorized access.
Firewall logs are constantly monitored, and the logs are reviewed on a regular
basis. Leading-edge firewall equipment has been chosen to protect the network.
The network has been architected to be highly reliable and redundant. If a
router, load balancer, or firewall should fail, there is redundancy built in
that would allow failover to take place, without causing a loss of service to
our customers.
Data Security and Availability
BioEnable's OS and
databases do not share the same passwords. Database users are restricted to a
controlled list; individual activities are restricted, logged and monitored.
Each customer owns
his/her data and can export it from BioEnable, and the administrator user can
export at any time. Customers can export their data from BioEnable by doing a
CSV or IIF export.
System Security
BioEnable uses tightly
controlled passwords on its servers and network equipment. BioEnable limits
access to production systems to authorized personnel only. Passwords are
changed on a regular basis. Security updates to the operating systems are
tracked and updated as necessary.
System Reliability
BioEnable looks at its
application as well as the infrastructure as a tightly integrated system. All
aspects of the system are designed to be reliable to ensure continued
availability in the event that a component fails. All web and application
servers are configured in a redundant manner. BioEnable has spare servers ready
to deploy at a moments notice in the event of an equipment failure. The
networking equipment is also configured in a manner to permit replacement
equipment to be available within a few hours. BioEnable chooses equipment of
the highest quality to power our application.
BioEnable has in place
an expert team to provide services for server and network management,
monitoring, backups, and other necessary maintenance. System administrators
respond to monitoring alerts 24x7 and repair critical failures immediately.
Data and Backups
All customer data is
automatically backed up daily to a tape library system. Tapes are taken offsite
to a secure location that is designed to safeguard tapes under almost any
environmental condition. The offsite facility exceeds industry storage
requirements and is 100 miles away from the data center. Unless Customer
provides written approval, BioEnable shall not update or provide any
maintenance upgrades or updates to the systems during the last week or first
week of any calendar quarter.
Last modified 2007-11-19 15:47