1.1. “Authorized Users” means a person using or interacting with any part of the BioT Technology, who is permitted by the Customer to do so, and who is either a member of the workforce of the Customer or of Customer’s organizational customer, or is an end-user such as a consumer, provided, however, that if the particulars of the evaluation presented to the Customer during registration on the BioT™ website indicate “Internal R&D use only”, then Authorized Users are only Customer’s internal workforce.
1.2. “BioT Technology” means the BioT™ cloud-based platform, including backend development framework, microservices and core libraries, BioT console generator and back-office Manufacturer and Organization portals (“SaaS”); BioT™ Development tools (SDKs and APIs) and BioT™ Sample Software and Code (“Software”), including any changes, updates and improvements to those components issued or made available by BioT Healthcare.
1.3. “Customer” means the person that has formally registered for the trial/evaluation edition of the BioT Technology on BioT™ website.
1.4. “Customer Data” means any and all electronic data and information of the Customer, its Authorized Users, and any other device-user or consumer, which is stored or handled by the BioT Technology.
1.5. “Customer Product” means the overall technology developed or licensed by Customer which interoperates or uses the BioT Technology.
1.6. “Device” means any Customer’s IoT device utilizing the BioT Technology in any manner.
1.7. “Intellectual Property” means (i) inventions, all patents and patent applications; (ii) trademarks, whether registered or not; (iii) work of authorship and all copyrightable works; (iv) trade secrets; (v) all other proprietary rights and any other similar rights, in whatever form or medium.
1.8. “Term” means the period evaluation period presented to the Customer during registration on the BioT™ website, including extensions thereto agreed to with BioT Healthcare (if any).
2.1. SaaS. Subject to these terms and conditions (the “Terms”) and subject to the scope, metrics and parameters of use presented to the Customer during registration on the BioT™ website, during the Term, Customer and its Authorized Users may access and use those components of the BioT Technology flagged as “SaaS” in the definition of BioT Technology, at no charge and in accordance with the objective and purpose of such components, on a worldwide, non-exclusive and non-transferrable basis.
2.2. Software. Subject to the terms and conditions contained in these Terms, for those components of the BioT Technology flagged as “Software” in the definition of BioT Technology, and subject to the scope, metrics and parameters of use presented to the Customer during registration on the BioT™ website, BioT Healthcare grants the Customer, at no charge, during the Term, a worldwide, non-exclusive and non-transferrable license to: (a) use, reproduce and integrate or interconnect such components with the Customer Product; (b) modify and create derivative works of such components, and reproduce and integrate or interconnect the result with the Customer Product, in each case only if the component is provided by BioT Healthcare in source code form; (c) distribute the components and the work-product resulting from (a) and (b) above, to Authorized Users, in binary form only, strictly for Authorized Users’ usability of the BioT Technology.
2.3. Support. Subject to the terms and conditions contained in these Terms, during the Term, BioT Healthcare will endeavor to provide Customer with timely technical support to resolve technical issues, bugs and malfunctions in the BioT Technology that the Customer reports or inquires. However, BioT Healthcare does not commit to particular response times or resolution times for such issues.
2.4. Updates. During the Terms, BioT Healthcare may, but is not obligated to, make available to Customer those changes, releases, upgrades, or updates to the BioT Technology (collectively, “Updates”) which BioT Healthcare makes generally available to BioT Healthcare’s other customers at no additional cost. For clarity, BioT Healthcare may offer the Customer from time-to-time new features which are subject to additional Fees.
2.5. Restrictions. Customer will not and will not attempt to (a) make available the BioT Technology to anyone other than Authorized Users, (b) other than as permitted with Authorized Users pursuant to Sections 2.1 and 2.2, sell, resell, license, sublicense, distribute, make available, rent or lease the BioT Technology, whether in whole or in part, or include the BioT Technology in a service bureau or outsourcing offering, (c) use the BioT Technology to process, store or transmit content that infringes or violates the rights of third parties, (d) knowingly interfere with or disrupt the integrity or performance of the BioT Technology, (e) gain unauthorized access to the BioT Technology, any of BioT Healthcare’s systems or networks, or any features thereof that are undocumented, blocked or inaccessible in the ordinary course, (f) access to or use of the BioT Technology in a way that circumvents a contractual usage limit, or use any of BioT Healthcare’s Intellectual Property rights except as permitted under these Terms, or (g) disassemble, reverse engineer or decompile the BioT Technology, unless such activities are non-waivable rights guaranteed to Customer under applicable law, in which case Customer must first inform BioT Healthcare in writing and in detail of its intent to perform these activities.
2.6. Fair Use. The licensed under Section 2.1 and 2.2 are provided to you at no charge, but you may only use the BioT Technology in a fair, reasonable and proportionate scope and may not exploit the free-of-charge license you’ve been granted for excessive volumes of storage, transmission or computation.
3.1. Confidentiality. The parties shall adhere to the NDA attached as Annex A to these Terms.
3.2. BioT Healthcare Ownership. As between the parties, all rights, title and interests, including all Intellectual Property rights, in and to the BioT Technology, and all parts thereof (including Further Developments as defined below, and anything developed by BioT Healthcare as a result of Feedback (as defined below), are owned by or licensed to, BioT Healthcare. The Customer acknowledges and agrees that except for the limited license and use rights expressly and specifically granted to the Customer under these Terms, the Customer acquires no other right, title, interest or ownership in and to the Intellectual Property rights associated with the BioT Technology.
3.3. Feedback. Customer may, at its option, provide suggestions, ideas, enhancement requests, recommendations or feedback regarding the Software or support services (“Feedback”). BioT may use and incorporate Feedback in BioT’s products and services without compensation or accounting to Customer, provided that neither BioT nor its use of the Feedback identifies Customer as the source of such Feedback. Feedback is not confidential to Customer. Customer will have no obligation to provide Feedback, and all Feedback is provided by Customer “as is” and without warranty of any kind.
3.4. Personal Information. The Customer must ensure that Customer Data does not include any: (a) “protected health information” pursuant to the U.S. federal Health Insurance Portability and Accountability Act and the rulemaking promulgated thereunder; and (b) “personal data” pursuant to the GDPR, or “personal information” or comparable term pursuant to any applicable data protection or privacy law.
3.5.1. As between BioT Healthcare and Customer, Customer is the sole owner of all Customer Data. Customer Data is Customer’s Confidential Information under the NDA attached as Annex C to these Terms. Customer represents and warrants that it has the lawful right to provide the Customer Data to BioT Healthcare for the purposes set out below.
3.5.2. Customer hereby grants to BioT Healthcare the right to access the Customer Data to (i) carry out its duties and obligations under the Terms, including without limitation, the provisioning the BioT Technology; and (ii) further develop the BioT Technology, including without limitation deriving further algorithms and/or knowhow that will benefit Customer and other medical device manufacturers (“Further Developments”) (the foregoing activities described in (i) and (ii) together, the “Permitted Purpose”), all subject to applicable laws and regulations.
3.5.3. Any and all proposed uses of the Customer Data beyond the Permitted Purpose shall require an additional advance written approval from Customer. For the avoidance of doubt, neither BioT Healthcare nor any of its subcontractors shall publish the raw data unless expressly approved in advance by Customer.
3.5.4. BioT Healthcare hereby covenants to Customer that it will not knowingly use the Customer Data to compete with the Customer Product.
3.6. Marketing Communications. Customer acknowledges that a core element of these Evaluation Terms is BioT Healthcare’s ability to promote and market the BioT Technology. Customer therefore acknowledges that BioT Healthcare will process the contact information (including phone number and email) of the person who registered to these Terms for the Customer, for marketing communications, including marketing emails, marketing text messages, and marketing telephone calls.
3.7. Publicity. Neither party will, without the other party’s prior written approval, (i) issue or make, or permit to be issued or made, any public communication of any kind regarding these Terms or the relationship of the parties, or (ii) use the name, trade name, service marks, trademarks, trade dress or logo of the other party. Notwithstanding the foregoing Customer hereby authorizes BioT Healthcare to use the Customer’s name, logo and trademarks for external marketing purposes.
4.1. Customer Indemnity. Customer shall defend and hold harmless the BioT Healthcare and its directors, officers, service providers, and contractors, against any claim alleging that Customer’s provision of the Customer Data to BioT Healthcare for the purposes set out in Section 4.5, infringes or misappropriates the rights of any third party or any applicable data protection or privacy law. Customer shall indemnify the foregoing defended entities for all liabilities, losses, costs, damages and expenses (including reasonable legal fees) to the extent they result from such claims. The above indemnity and defense obligations by Customer shall not apply to the extent that the claim arises from BioT Healthcare’s breach of these Terms.
4.2. Indemnity Procedure. Where BioT Healthcare is entitled to indemnity and defense by the Customer pursuant to the foregoing, BioT Healthcare party must: (a) give the Customer written notice of the indemnifiable claim promptly after becoming aware of it, and shall provide the Customer reasonable cooperation, information and assistance in connection therewith, at the expense of the Customer; (b) give the sole control and authority with respect to defense or settlement of the indemnifiable claim to the Customer, and further provided that BioT Healthcare shall have a right to participate in the defense and settlement of the indemnifiable claim with counsel of its choice; and (c) not settle, or take any action to prejudice, the defense or settlement of the indemnifiable claim without the Customer’s prior written consent. BioT Healthcare shall not admit to any wrongdoing of the indemnifiable party without the Customer’s written consent, which shall not be unreasonably withheld, denied or delayed.
4.3. Additional measures. In the event that the BioT Technology are found to be infringing the Intellectual Property rights of third parties, or BioT Healthcare believes are likely to be found to be infringing Intellectual Property rights of third parties, BioT Healthcare may, in its own choice and expense, (i) modify or substitute the foregoing so that they are no longer infringing but retain substantially similar features and functionality; (ii) obtain for the Customer a license to continue using the foregoing as contemplated by these Terms; or (iii) if (i) and (ii) are not reasonably practicable for BioT Healthcare in terms of costs, operations or liabilities, terminate these Terms prematurely without liability for such termination.
4.4. Affiliates and Contractors. With respect to affiliates and contractors that Customer allows to use the Software: (a) Customer remains responsible for all obligations hereunder arising in connection with such affiliate’s or contractor’s use of the Software; and (b) Customer agrees to be directly liable for any act or omission by such affiliate or contractor to the same degree as if the act or omission were performed by Customer such that a breach by an affiliate or a contractor of the provisions of these Terms will be deemed to be a breach by Customer. The performance of any act or omission under these Terms by an affiliate or a contractor for, by or through Customer will be deemed the act or omission of Customer.
5.1. Warranties. BioT Healthcare represents and warrants that to its knowledge after having taken reasonably prudent measures designed to ascertain so, the BioT Technology does not contain any program, routine, device or other feature that constitutes a so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse or trap or back door, or other harmful code or device which (a) is designed to delete, disable, deactivate, provide unauthorized access, interfere with or otherwise harm any software, program, data, device, system or service; (b) is intended to provide unauthorized access or to produce unauthorized modifications; or (c) could otherwise cause harm or interfere with Customer’s exercise of its rights under these Terms, subject to the terms and conditions herein.
5.2. Disclaimer of other warranties. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET OUT HEREIN, THE BIOT TECHNOLOGY IS PROVIDED "AS-IS" AND "AS-AVAILABLE." AND BIOT HEALTHCARE DOES NOT WARRANT THAT CUSTOMER'S USE OF ANY OF THE BIOT TECHNOLOGY WILL SECURE ANY SUCCESS OR GENERATE ANY REVENUE OR OTHERWISE MEET CUSTOMER’S REQUIREMENTS.
5.3.1. NO INDIRECT DAMAGES. SUBJECT TO THE EXCEPTIONS SPECIFIED BELOW, IN NO OTHER EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSSES, LOSS OF USE, DATA, BUSINESS OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE LICENSING OF THE BIOT TECHNOLOGY BY BIOT HEALTHCARE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF WHETHER THE DAMAGES ARE SOUGHT ON THE BASIS OF TORT (INCLUDING NEGLIGENCE), CONTRACT, OR ANY OTHER THEORY OF LIABILITY.
5.3.2. NO DIRECT DAMAGES. SUBJECT TO THE EXCEPTIONS SPECIFIED BELOW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY DIRECT DAMAGES, REGARDLESS OF WHETHER THE DAMAGES ARE SOUGHT ON THE BASIS OF TORT (INCLUDING NEGLIGENCE), CONTRACT, OR ANY OTHER THEORY OF LIABILITY.
5.3.3. EXCEPTIONS. THE FOLLOWING HEADS OF DAMAGE ARE EXCLUDED FROM 5.3.1 AND 5.3.2 ABOVE: (A) DAMAGES RESULTING FROM A PARTY’S BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN ANNEX A OR FROM BREACH OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY, WHICH SHALL BE UNCAPPED; AND (B) DAMAGES RESULTING FROM A PARTY’S MALICIOUS MISCONDUCT OR FRAUD, OR DEATH OR PERSONA INJURY CAUSED BY NEGLIGENCE OF BIOT HEALTHCARE, WHICH SHALL BE UNCAPPED.
6.1. Duration and Termination. These Terms commence upon the Customer’s online acceptance of these Terms and shall terminate automatically upon the end of the Term.
6.2. Termination for Breach. Either party may terminate these Terms immediately upon written notice if the other party is in breach or default of any obligation hereunder, which breach or default is not cured within three (3) days of receipt of written notice from the non-breaching party. In addition, BioT Healthcare may terminate these Terms immediately upon notice to Customer if BioT Healthcare determines that the Customer’s use of the BioT Technology violates the “Fair Use” clause in Section 2.6 above.
6.3. Consequences of Termination. Upon any termination of these Terms, BioT Healthcare will discontinue Customer’s access to the BioT Technology and the licenses and access rights granted under these Terms to the Customer regarding the BioT Technology terminate.
6.4. Survival. Sections 3 (Confidentiality, IP Ownership, and Data Processing) as it concerns ownership rights, confidentiality and publicity, 4 (Indemnity), 5 (Limited Warranties and Limitation of Liability), and 7 (Miscellaneous) shall survive the expiration or termination of these Terms.
7.1. Force Majeure. Neither party will be responsible for any failure or delay in its performance under these Terms (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, war, acts of God or governmental action. The affected party shall give prompt written notice to the other Party, stating the period of time the force majeure issue is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such force majeure issue. The continuation of a Force Majeure event for more than thirty (30) continuous days shall give either Party the right, upon written notification, to terminate these Terms.
7.2. Governing Law. These Terms will be governed by the laws of the State of Israel, irrespective of its conflict of laws principles and any dispute not amicably resolved between the parties will be under the sole and exclusively jurisdiction and venue of the courts in Tel Aviv, Israel.
7.3. Assignment. Neither party may assign these Terms without the prior written consent of the non-assigning Party, which approval shall not be unreasonably withheld, denied or delayed. Notwithstanding the foregoing, these Terms may be freely assigned by a party without the prior written consent of the other under the following circumstances: (i) merger of that party, or (ii) the sale of all or substantially all of that party’s assets relating to these Terms. Any assignment in violation of this provision will be invalid. These Terms will be binding upon, enforceable by and inure to the benefit of the Parties and their respective successors and assigns.
7.4. Relationship of the Parties. The parties are independent contractors, and nothing herein is intended or will be construed as creating a partnership, employment, joint venture or agency relationship between the parties.
7.5. Entire Agreement; Amendments; Severability and Waiver. These Terms together with its annexes constitutes the complete agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of these Terms. Except as otherwise specified in these Terms, these Terms may not be modified or amended except in a writing signed by a duly authorized representative of each party. If any provision of these Terms is held to be invalid or unenforceable, the remainder will remain in full force and effect. The waiver by either party of any default or breach of these Terms will not constitute a waiver of any other or subsequent default or breach.
1. “Confidential Information" mean any and all information, content and materials related to the business, activities, methods, technology or facilities of a party that: (i) is not generally known to the public, and (ii) is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof. Subject to the exceptions below, all Confidential Information shall be considered as such if it is marked as confidential or proprietary or which a reasonable person would understand to be confidential under the circumstances surrounding disclosure.
2. Non-disclosure and Non-use. Each party hereto (the “Receiving Party”) agrees not to use any Confidential Information of the other party (the “Disclosing Party”) for any purpose, other than to enforce its rights and perform its obligations under the Terms. Each party hereto shall use at least the same degree of care, but no less than reasonable care, to avoid disclosure or use of the Confidential Information of the other party as such party employs with respect to its own Confidential Information of like importance which in no event shall be less than a reasonable standard of care. Each party will limit the disclosure of the Confidential Information to its employees, consultants, corporate group affiliates, agents and subcontractors, who have a “need to know” in order to perform its obligations under these Terms and are bound by appropriate confidentiality undertakings.
3. Lawful Disclosure. In the event that either party or any of its representatives receive a request by valid deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process to disclose any of the Confidential Information, such party shall, to the extent legally permitted, provide the other with prompt written notice of the existence, terms and circumstances of such request so that a protective order or other appropriate remedy may be sought and/or compliance with the terms of these Terms may be waived. In the event that such protective order or other remedy is not obtained prior to the date a party is legally required to comply with such request, or that the other party waives compliance with the provisions hereof, the party receiving such protective order agrees to furnish only that portion of the Confidential Information which is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.
4. Exceptions. Notwithstanding anything in these Terms to the contrary, except to the extent it would be considered “non-public personal information,” “personally identifiable information,” “personal information,” or “protected health information” within the meaning of applicable privacy laws and regulations, Confidential Information need not be treated as such if it is or has become:
(a) published or otherwise available to the public other than by a breach of these Terms;
(b) rightfully received by the Receiving Party from a third party without confidential limitation;
(c) approved in writing for public release by the Disclosing Party;
(d) known to the Receiving Party prior to its first receipt of such Confidential Information from the Disclosing Party, as properly documented by the Receiving Party's files; or
(e) Independently developed by the Receiving Party without use of or reference to such Confidential Information, as properly documented by the Receiving Party's files.
5. Return of Confidential Information. Upon the termination of these Terms, or if a party so requests in writing, each party shall: (i) discontinue use of the Confidential Information and any embodiments thereof, or (ii) return to the other party or destroy, as requested by the Disclosing Party in writing, the original and all copies of any Confidential Information of the Disclosing Party and any summaries or analyses thereof or studies or notes thereon in the Receiving Party's possession or control, except for one copy that may be retained for archival or regulatory purposes. Moreover, should the return or destruction of the Confidential Information be infeasible because such Confidential Information is stored pursuant to automated electronic back-up or archival systems used in the ordinary course of business or to comply with legal or regulatory requirements, the Receiving Party agrees to maintain the Confidential Information in accordance with the terms of these Terms until it is destroyed in the ordinary course of business. Such Confidential Information so retained shall not generally accessible to employees or other persons in the ordinary course of business or as otherwise authorized in these Terms.
6. Remedies. The party recognize and acknowledge that Confidential Information may have competitive value and be of a confidential nature and that irreparable damage might result to the Disclosing Party if such Confidential Information were improperly disclosed by a Receiving Party to a third party. Each party agrees that monetary damages would be inadequate to compensate the other for breach of any provision of this Annex C, that any such breach or threatened breach will cause irreparable injury, and that, in addition to any other remedies available at law or in equity, the injured party will be entitled to injunctive relief against the threatened breach or the continuation of any such breach, without the necessity of proving actual damages.
2024 All rights reserved
Last updated on:
August 1st , 2024 VER .17